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HomeMy WebLinkAbout1481 MendezIn Re: Bernard Mendez, Respondent File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella 06 -036 Order No. 1481 7/21/08 8/5/08 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding possible violation(s) 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 allegation(s). 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. Mendez, 06 -036 Page 2 I. ALLEGATIONS: That Bernard Mendez, a public official /public employee in his capacity as a supervisor of Lower Towamensing Township, Carbon County, violated Sections 1103(a), and 1104(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § §1103(a) and 1104(a) when he used the authority of his office for a private pecuniary gain by claiming and receiving compensation as a Township roadmaster for duties related to his position as supervisor including but not limited to preparing for meetings, attendance at meetings, signing checks, meeting with Planning Commission members, developers, Township engineers and surveyors; when he subsequently approved his compensation for hours submitted related to administrative duties; and when he failed to file a Statement of Financial Interests for the 2004 calendar year; and when he submitted and approved compensation as a Township roadmaster for hours worked while simultaneously being compensated for these hours by Carbon County where he is also employed. II. FINDINGS: 1. Bernard Mendez has served as a Supervisor for Lower Towamensing Township, Carbon County, since January 2002. a. Mendez previously served as a Lower Towamensing Supervisor in the 1990's. b. Mendez has served as Vice - Chairman of the Board of Supervisors in 2004 and from 2006 until the present time. 2. Lower Towamensing Township is a second -class township governed by a three - member Board of Supervisors. a. Supervisors currently receive $1,875.00 annually as payment for services in their Supervisor capacity. 1. Regular and General meetings are held once per month. b. The Supervisors do not need to be present at the meetings to be compensated. 3. Mendez has been appointed either as a Township employee or Roadmaster annually since January 2002. a. Mendez was appointed as an employee to work on the roads from 2002 through 2003 and as Roadmaster from January 2004 until the present time. 4. Since 2004, Mendez, Glen Hahn and Larry Berger have served on the Lower Towamensing Township Board of Supervisors. a. Hahn has been appointed either as an employee or Assistant Roadmaster since January 2005. 1. Berger has never been appointed as an employee of the Township. 5. The Lower Towamensing Township Board of Supervisors from 2002 through 2003 included Mendez, Hahn and Barry Stroup. a. Barry Stroup was appointed Roadmaster from 2002 through 2003. Mendez, 06 -036 Page 3 b. All elected Supervisors were appointed part -time employees to work on the roads from 2002 through 2003. 6. Reorganization meetings of the Lower Towamensing Township Supervisors confirmed the following regarding appointments of elected Supervisors to positions of employment with the Township. 2002: (1/7/02) Motion Hahn to employ all elected supervisors as employees to perform work on the roads when necessary or needed. Compensation was recommended to the auditors to be set at $12.00 /hour. 2003: 1/7/03 Motion Stroup, Second by Hahn, to employ all supervisors as part -time employees to perform work on roads when necessary on a call -out basis at the discretion of the roadmaster. Recommend to auditors an hourly wage of $12.00. Motion Hahn, second Mendez to appoint Stroup as roadmaster. 2004: (1/5/04) Motion by Berger, second by Mendez, to appoint Mendez roadmaster. Motion Berger to recommend to the auditors the following compensation and benefits for supervisors hired to work on township roads: $12.00 /hour - Roadmaster $11.00 /hour - Assistant Roadmaster $12.00 /hour - Assistant Secretary Berger asks Roadmaster Mendez if he wanted any past or present Supervisors to be hired to work on the roads. Mendez said, Not at this time." 1/27/04: Arthur Walk appointed as Assistant Roadmaster. 5/11/04: Motion Berger, second Mendez to authorize the secretary to advertise for a part -time secretary position at an hourly wage of up to $12.00 /hour. 9/14/04: Mr. Berger said he thinks it is time Mr. Hahn started working at the township. Mr. Hahn is willing to do so and Mr. Mendez said no. Mr. Berger said he believes Mr. Hahn has a lot of valuable talents. Mr. Mendez said Mr. Berger had been discussing cutting back the employees in the garage because there is not enough work for them. Now he is asking Mr. Mendez to put another man on. Mr. Mendez said they don't have any room for another employee. Mr. Berger said we hired people to work part time. Mr. Mendez has five men working five days a week. Is that part time? Mr. Mendez said that is because he feels he is caught up and then something else needs to be done. He said they are trying to get the work done. They have a contract with the State to cut grass and they only have one tractor. They did a lot of other work like cutting trees and brush and cleaning gutters. Mr. Berger said he asked Mr. Mendez for a work schedule but Mendez, 06 -036 Page 4 12/27/05: has not received one since April. He really has no idea as to what is going on. Mr. Bollinger asked how you can make a living on three days a week. Mr. Berger said he works at the township approximately five days a week, four hours a day and about three hours a day at home and he doesn't get paid. Mr. Berger said again Mr. Hahn should be working because he has a lot to offer. Mr. Berger motioned to employ Mr. Hahn and Mr. Hahn seconded the motion. Poll: Hahn /yes; Mendez /no; Berger /yes. Vote: 2 yes and 1 no. The majority rules and the motion passes. Mr. Berger told Mr. Hahn he can start tomorrow (Wednesday) in the office while the secretary is on vacation. 10/12/04: Berger reports he wants to add Hahn as a roadmaster. Berger stated he feels Hahn can do a better job than Mendez. Hahn declined to take the position. 2005: 1/3/05 Motion Hahn, second Mendez to appoint Mendez as roadmaster. Motion carried 2 to 1. Motion approved to recommend to the auditors that employed supervisors be paid $13.00 /hour. Motion approved to employ all (3) supervisors to work on the roads when necessary or needed on a call -out basis at the discretion of the roadmaster. Berger questions wages paid to supervisors as township employees. Berger questions why are two supervisors being paid. 2006: 1/3/06 Motion by Mendez approved to appoint Hahn Assistant Township Secretary. Motion approved to appoint Mendez as Roadmaster and Hahn as Assistant Roadmaster. Motion approved to recommend to the auditors a salary of $13.00 /hour for employed supervisors. 1/2/07 Hahn appointed Assistant Secretary /Treasurer. Mendez appointed Roadmaster, Hahn Assistant Roadmaster. Motion approved recommending supervisor wages as employee at $13.50 /hour. 7 The Lower Towamensing Board of Auditors set rates of compensation for Supervisors employed by the Township. a. Compensation is set based on requests of the Board of Supervisors. b. The Auditors have approved rates as requested by the Board for specific positions. Mendez, 06 -036 Page 5 8. Memos of the Lower Towamensing Board of Auditors document the rates approved for the Supervisors working as Roadmaster and Assistant Roadmaster from 2002 through 2007: Auditors Reorganization Date Hourly Rate Approved 01/08/2002 Supervisors /road crew: Supervisor /Road Master a. 01/08/2003 01/06/2004 Roadmaster Assistant Roadmaster 01/04/2005 01/04/2006 01/29/2007 Part -Time Township Employee Roadmaster /Road Worker Roadmaster /Road Worker Roadmaster/ Assistant Roadmaster $12.00 $12.00 $12.00 $12.00 $11.00 $13.00 $13.00 $14.00 9. Mendez, Hahn and Township employees Arthur Walk, Jr., Rick Rodgers and Dave Bollinger act as the Township road crew to address various road /maintenance related issues in the Township. a. Mendez's work hours as the Roadmaster were Monday through Friday from 7:00 a.m. until 3:00 p.m. 10. Township Roadmasters are responsible for maintaining the Township roads; including inspecting roads, plowing roads, maintaining the Township vehicles, and other duties as defined by the Second Class Township Code, 53 P.S. §65101 et seq. a. Lower Towamensing Township has no written job description for the Roadmaster position. 11. Mendez is generally at the Township building each morning to address work to be performed that day. a. Mendez reviews and determines what work needs to be completed along with Hahn and the other Township road workers. b. Mendez makes assignments along with Hahn. 1. Mendez does not generally perform physical labor but has served as a "flagman" for road repair projects. 12. The Lower Towamensing Township Supervisors recommended at their reorganization meeting in 2004 that the Supervisors be hired to work as the Assistant Secretary. Based on the Board of Supervisors' request, the Lower Towamensing Township Auditors set the salary of the Supervisors hired as the Assistant Secretary at their reorganization meeting on January 6, 2004, at $12.00 /hr. 13. The Lower Towamensing Township Supervisors did not make any recommendations nor did they appoint anyone from the Board of Supervisors to be Assistant Secretary at their reorganization meeting in 2005. Mendez, 06 -036 Page 6 a. The Lower Towamensing Township Auditors did not set any salary for Supervisors employed as Assistant Secretary at their reorganization meeting on January 4, 2005, because the Board did not make any appointments. 14. The Lower Towamensing Township Supervisors appointed Hahn Assistant Secretary at their reorganization meetings in 2006 and 2007. a. The Lower Towamensing Township Auditors set the salary of Hahn as the Assistant Secretary at their reorganization meetings in 2006 and 2007. Auditors Reorganization Date 01/04/06 01/29/07 Hourly Rate Approved $ 13.00 /hr $ 14.00 /hr b. Hahn was appointed Assistant Secretary to assist Secretary /Treasurer Dorothy Achey. 15. Mendez was not appointed Assistant Secretary in 2005, 2006 or 2007. 16. Lower Towamensing Township utilizes Pennsylvania Department of Transportation timesheets to document specific days and total hours worked by the working Supervisors and Township employees. a. Descriptions and codes were noted on the timesheets that represented the work that was completed by the working Supervisors and road crew. 1. The timesheets filled out by Mendez listed Mendez working on road projects with Hahn along with the road crew and also Mendez and Hahn performing secretarial work. aa. The secretarial work was identified by a Township payroll code listed on the timesheets as 405. b. The timesheets are signed [by] Mendez listing the work completed and hours worked by each employee. 17. Lower Towamensing Township utilizes a time clock and time cards to document hours worked by employees. a. Each employee is responsible for punching in and out on a time clock listing the hours worked each day. b. Supervisors working as Roadmasters and Assistant Secretaries must utilize the time clock and time cards to document their hours worked. c. The time cards are used on a bi- weekly basis with the employee's name listed at the top of the card along with the date of the first day of the week for the pay period. 18. Mendez's time cards and timesheets and the time cards and timesheets of the other Township employees are utilized by the Secretary /Treasurer to process the payroll. 19. In 2005, Mendez claimed hours and received wages for administrative duties that were performed as an Assistant Secretary and Township Supervisor. a. Mendez performed the duties of Assistant Secretary at a time when he was not appointed to the position and not approved to receive compensation for Mendez, 06 -036 Page 7 the position. b. Mendez's timesheets reflect the hours that he was paid for performing administrative duties as an Assistant Secretary. 1. Mendez did not enumerate specific administrative duties performed on the timesheets but he inserted the code 405 signifying the duties were administrative and /or related to secretarial functions. 2. Although Mendez used code 405 in completing his time sheets, portions of his day were spent completing other tasks of non - administrative duties, for which Mendez should have been compensated. 3. Mendez approved timesheets which included his hours worked on administrative duties. c. Mendez signed payroll checks during times while he was punched in on the time clock as an employee of the Township. 20. In 2005 and 2006, Mendez was compensated for 65.25 hours at his hourly Roadmaster /road crew rate totaling $848.25 for administrative duties, a position to which he was not appointed. a. Although Mendez was compensated for administrative duties per use of code 405 in completing his time sheets, portions of Mendez's day were spent completing other tasks of non - administrative duties, for which Mendez should have been compensated. 21. Payroll is issued to Lower Towamensing Township employees on a bi- weekly basis. a. Mendez approves the payroll by signing the timesheets listing the hours of all the employees. b. Payroll is approved by virtue of the Supervisor's signature on the Township checks that is done at the end of the payroll period. 22. Signature Authority over Township checks lies with the Secretary /Treasurer and all three Supervisors. a. Township checks require the signatures of the Secretary /Treasurer and at least one of the Supervisors. c. Signatures on Township checks are live signatures. 1. The checks are signed at the Township office on a regular workday. 23. Mendez participated in actions as a Township Supervisor signing timesheets and payroll checks issued to him for hours claimed that were for administrative duties. 24. Mendez received a private pecuniary gain of $848.25 when he used the authority of his public position to approve compensation for himself for duties related to his position as Supervisor and for a position to which he was not appointed. THE FOLLOWING FINDINGS RELATE TO THE ALLEGATION THAT MENDEZ APPROVED HIS COMPENSATION AS ROADMASTER WHILE SIMULTANEOUSLY BEING COMPENSATED BY CARBON COUNTY. Mendez, 06 -036 Page 8 25. In addition to his position as Roadmaster and road worker, Mendez has worked as a Part -Time Collection Driver with the Carbon County Solid Waste Management Office since July 16, 2001. a. Mendez works approximately 2 or 3 days a week from 7:30 a.m. until 3:00 p.m. b. These are generally the same hours Mendez was to work as Lower Towamensing Roadmaster /road worker. 26. The job description of a Part -Time Collection Driver with the Solid Waste Department is as follows: a. To perform driving with a Commercial Driver's License with an Air Brake Equipped vehicle and general maintenance duties as needed within the department as related to the Carbon County Rural Recycling Program and to assist in the maintenance of an efficiently run department. 27. Timesheets are used to document the hours Mendez works for the County. a. Mendez signs the timesheets that list the hours he works for the County on a bi- weekly basis. 1. Mendez's timesheets are reviewed and signed by his supervisor. 28. Mendez's timesheets are utilized by Carbon County to process the payroll from which Mendez is paid by the Carbon County Treasurer's Office. a. Mendez is paid on a bi- weekly basis. 29. Since 2001, Mendez's timesheets confirm the following number of hours worked for Carbon County: Year Hours 2001 413 2002 896 2003 906.5 2004 709.5 2005 387.5 2006 459 a. After Mendez was appointed Lower Towamensing Township Roadmaster in 2004, the number of hours he worked for the County began to decrease while his hours and compensation as a Township employee increased. 30. Since 2004, Mendez has occasionally worked for Carbon County and Lower Towamensing Township on the same day. a. Mendez claimed the same days on his timecards and timesheets for the Township as his timesheets and payroll records for Carbon County. b. The time either overlapped by a number of hours or the entire workday. 31. Mendez would typically go to the Township building to stamp his timecard, prior to reporting to work at the County recycling center. Mendez, 06 -036 Page 9 a. Mendez then would work his 7.5 hour shift for the County before returning to the Township sometime after 3:00 p.m. 32. Following is a comparison of the hours worked by Mendez by year for both the County and the Township [since] 2002. Year County Township Total 2002 89.6* 66.5 962.5 2003 906.50 5.0 911.5 2004 709.5 1217.5 1927.0 2005 387.5 1895.0 2282.5 2006 459.0 1764.5 2223.5 *[sic]. [This appears to be a typographical error, intended to have been 896 hours. Cf., Fact Finding 29.] 33. Mendez's ... timesheets for the County and Township confirm an average number of hours worked per pay period as follows: Average Number of hours Average Number of hours Total Year per week for the township per week for the county Ave,age 2004 23.41 13.78* 37.19 2005 36.44 7.45 43.89 2006 33.93 8.83 42.76 * [There may be a minor discrepancy in the calculation, which would not impact the parties' calculation of the total private pecuniary benefit received by Mendez as Township Roadmaster while simultaneously being compensated by Carbon County. See, Fact Finding 35a.] 34. Between 2004 and 2006, Mendez was compensated at his hourly Roadmaster rate from Lower Towamensing Township while simultaneously receiving compensation from the Carbon County Solid Waste Department as a Part -time Collection Driver. 35. Mendez received Roadmaster wages totaling $1,523.00 from 2004 through 2006 while simultaneously receiving compensation from Carbon County as a Part -Time Collection Driver. a. 2004 $444.00 (37 hrs @ $12.00 /hr) b. 2005 $416.00 (32 hrs @ $13.00 /hr) c. 2006 $663.00 (51 hrs @ $13.00 /hr) d. Total $1,523.00 36. Mendez participated in actions as a Township Supervisor signing timesheets and payroll checks issued to him for hours claimed while simultaneously working for Carbon County. THE FOLLOWING FINDINGS RELATE TO MENDEZ'S FAILURE TO FILE A STATEMENT OF FINANCIAL INTERESTS FOR THE 2004 CALENDAR YEAR BY MAY 1, 2005. 37. As a Lower Towamensing Township Supervisor, Bernard Mendez was required to file a Statement of Financial Interests for calendar year 2004 by May 1, 2005. Mendez, 06 -036 Page 10 38. A Statement of Financial Interests (SFI) compliance review was conducted by a State Ethics Commission Investigator on June 27 and 29, 2006, for Lower Towamensing Township, which confirmed the following SFIs on file for Mendez: Date Filed Calendar Year 01/07/2002 2001 02/22/2003 2002 04/13/2004 2003 02/23/2006 2005 39. Upon completion of the compliance review, it appeared as though Mendez did not file a Statement of Financial Interests for the 2004 calendar year by May 1, 2005. 40. Mendez provided a copy of an apparently timely filed 2004 Statement of Financial Interests [to] the Investigative Division of the State Ethics Commission. 41. In 2004 Mendez was compensated $1,875.00 as a Township Supervisor. 42. Mendez realized a private pecuniary gain of $2,371.25 from 2004 through 2006 when he used the authority of his public position to claim and then approve his compensation as a Township Roadmaster for administrative duties and for compensation he received while simultaneously working for Carbon County. a. Administrative pay: $848.25 b. Simultaneous pay as Roadmaster: $1,523.00 $2,371.25 III. DISCUSSION: As a Supervisor for Lower Towamensing Township ( "Township ") from 2002 to the present time, Respondent Bernard Mendez ( "Mendez ") has been a public official 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 Mendez violated Sections 1103(a) and 1104(a) of the Ethics Act when he, as a Township Supervisor, used the authority of his office for a private pecuniary gain by claiming and receiving compensation as a Township roadmaster for duties related to his position as Supervisor including but not limited to preparing for meetings, attending meetings, signing checks, and meeting with Planning Commission members, developers, Township engineers and surveyors; when he subsequently approved his compensation for hours submitted related to administrative duties; when he failed to file a Statement of Financial Interests for the 2004 calendar year; and when he submitted and approved compensation as a Township Roadmaster for hours worked while simultaneously being compensated for these hours by Carbon County where he is also employed. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities (a) Conflict of interest. —No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). Mendez, 06 -036 Page 11 The term "conflict of interest" is defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa. C. S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1104(a) of the Ethics Act provides that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are set forth above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Mendez has served as a Township Supervisor since January 2002. Mendez served as Vice - Chairman of the Board of Supervisors in 2004 and has served in such capacity from 2006 to the present. The Township is a second -class township governed by a three - member Board of Supervisors. From 2002 through 2003, the Board of Supervisors included Mendez, Glen Hahn ( "Hahn "), and Barry Stroup. Since 2004, Mendez, Hahn, and Larry Berger have served on the Township Board of Supervisors. The Secretary /Treasurer and all three Supervisors have signature authority over the Township's checks. Township checks require the signatures of at least one of the Supervisors and the Secretary /Treasurer. Payroll is approved by virtue of the Supervisor's signature on the Township checks at the end of the payroll period. Rates of compensation for Supervisors serving as Township employees are set by the Township Board of Auditors. The particular years for which Mendez's compensation is at issue in this case are 2004, 2005, and 2006. From January 2004 to the present, Mendez has served as the Township Roadmaster. Fact Findings 3, 6. For his service as Roadmaster, Mendez received hourly pay of $12.00 in 2004, and $13.00 in 2005 and 2006. Fact Finding 8. Mendez was not appointed to the position of Assistant Secretary in 2005 or 2006. Fact Finding 15. Mendez, 06 -036 Page 12 The Township uses a time clock and Pennsylvania Department of Transportation timesheets to document days and hours worked by the working Supervisors and Township employees. In 2005, Mendez claimed hours and received wages for duties that were related to his position of Township Supervisor and for performing administrative duties of the Assistant Secretary at a time when he was not appointed to the Assistant Secretary position and was not approved to receive such compensation. Mendez did not set forth on the timesheets the specific administrative duties that he performed, but he inserted the Township payroll code "405" signifying that the duties were administrative and /or related to secretarial functions. The administrative duties performed by Mendez while he was punched in on the time clock as a Township employee included signing payroll checks. The parties have stipulated that in 2005 and 2006, Mendez claimed 65.25 hours and was compensated a total of $848.25 for performing duties that were related to his position of Township Supervisor and for performing administrative duties of the Assistant Secretary at a time when he was not appointed to the Assistant Secretary position and was not approved to receive such compensation. See, Fact Findings 20, 24. Mendez approved timesheets which included his hours worked on administrative duties. Mendez, as a Township Supervisor, signed timesheets and payroll checks issued to himself for the hours he claimed for performing such administrative duties. In addition to his positions with the Township, Mendez has worked as a Part -time Collection Driver with the Carbon County Solid Waste Management Office since July 16, 2001. In his position with the County, Mendez works approximately 2 or 3 days a week from 7:30 a.m. until 3:00 p.m., generally the same hours Mendez is to work as Township Roadmaster /road worker. Mendez documents his hours worked for the County on timesheets that Mendez signs bi- weekly. The County uses Mendez's timesheets to process the payroll, from which Mendez is paid. Since 2004, Mendez has occasionally worked for the County and the Township on the same day. Mendez claimed the same days on his timecards and timesheets for the Township as on his timesheets and payroll records for the County. The time either overlapped by a number of hours or overlapped the entire workday. Mendez would typically go to the Township building to stamp his timecard prior to reporting to work at the County recycling center. Mendez then would work his 7.5 hour shift for the County before returning to the Township sometime after 3:00 p.m. As a Township Supervisor, Mendez signed timesheets and payroll checks issued to himself for hours he claimed to have worked for the Township while simultaneously being compensated as an employee of Carbon County. The parties have stipulated that from 2004 through 2006, Mendez received Roadmaster wages totaling $1,523.00 while simultaneously receiving compensation from Carbon County as a Part -time Collection Driver. See, Fact Finding 35. The parties have stipulated that from 2004 through 2006, Mendez received a total private pecuniary gain of $2,371.25 as a result of using the authority of his public position to claim compensation and approve payments to himself for performing duties that were related to his position of Township Supervisor; for performing administrative duties of the Assistant Secretary at a time when he was not appointed to the Assistant Secretary position and was not approved to receive such compensation; and for claiming and approving compensation from the Township while simultaneously working for Carbon County. Fact Finding 42. Mendez, 06 -036 Page 13 As a Township Supervisor, Mendez was required to file a Statement of Financial Interests for calendar year 2004 by May 1, 2005. A compliance review conducted at the Township by a State Ethics Commission Investigator on June 27 and 29, 2006, revealed that no Statement of Financial Interests for Mendez for calendar year 2004 was on file with the Township. Mendez provided to the Investigative Division a copy of an apparently timely filed 2004 Statement of Financial Interests. 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 Mendez inappropriately receiving compensation for administrative duties performed by him; and b. That no violation of Section 1104(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1104(a) occurred in relation to Mendez's failure to file a 2004 calendar year Statement of Financial Interests form. 4. Mendez agrees to make payment in the amount of $2,371.25 in settlement of this matter. Said settlement amount is to be made in monthly payments of $197.60 per month for twelve (12) months, made payable to the Township of Lower Towamensing and forwarded to the Pennsylvania State Ethics Commission, with the first payment due [within] thirty (30) days of the issuance of the final adjudication in this matter. Mendez agrees to not accept any reimbursement, compensation or other payment from the Township of Lower Towamensing representing a full or partial reimbursement of the amount paid in settlement of 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 the provisions of Section 1103(a) of the Ethics Act to the Stipulated Findings, there were uses of authority of office on the part of Mendez. But for the fact that Mendez was a Township Supervisor, he would not have been in a position to claim hours and receive wages for duties that were related to his position of Township Supervisor and for administrative duties of the Assistant Secretary, or sign payroll checks to himself. See, Juliante, Order 809. Such uses of authority of office resulted in a private pecuniary benefit to Mendez consisting of unauthorized compensation totaling $848.25. Mendez, 06 -036 Page 14 Accordingly, per the Consent Agreement of the parties, we hold that a violation of Section 1103(a) of the Ethics Act occurred in relation to Mendez inappropriately receiving compensation for administrative duties performed by him. See, R.H. v. State Ethics Commission, 673 A.2d 1004 (Pa. Cmwlth. 1996); Harton, Order 1421; Seamans, Order 1411; Johnson, Order 1187. As for the portions of the Allegations and Stipulation of Findings involving Mendez's submittal and approval of compensation as a Township Roadmaster for hours he claimed to have worked for the Township while simultaneously being compensated as an employee of Carbon County, the parties have not recommended the finding of a separate violation as to that particular allegation. However, it appears that the recommendation for restitution, discussed below, includes the financial gain received by Mendez as a result of such conduct. As for Mendez's Statement of Financial Interests for calendar year 2004, the Stipulated Findings indicate that at the time of the June 2006 compliance review, the Township files did not include a copy of such Statement of Financial Interests. However, Mendez provided to the Investigative Division a copy of an apparently timely filed 2004 Statement of Financial Interests. Per the Consent Agreement of the parties, we hold that no violation of Section 1104(a) of the Ethics Act occurred in relation to Mendez's alleged failure to file a Statement of Financial Interests for the 2004 calendar year. As part of the Consent Agreement, Mendez has agreed to make payment to the Township in the amount of $2,371.25 in settlement of this matter as follows: monthly payments of $197.60 per month for twelve (12) months, made payable to the Township and forwarded to this Commission, with the first payment due within thirty (30) days of the issuance of this adjudication and Order. Mendez has further agreed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the amount paid in settlement of this matter. We note that the amount of payment recommended by the parties in the Consent Agreement is equivalent to the total private pecuniary benefit to which the parties have stipulated in Fact Finding 42. 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 payment in this case is $2,371.25. 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, Mendez is directed to make payment to the Township in the amount of $2,371.25, as follows: monthly payments of $197.60 per month for twelve (12) months, made payable to the Township and forwarded to this Commission, with the first payment due within thirty (30) days of the issuance of this adjudication and Order. Per the Consent Agreement of the parties, Mendez is further directed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the amount paid in settlement of this matter. 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. Mendez, 06 -036 Page 15 IV. CONCLUSIONS OF LAW: 1. As a Supervisor for Lower Towamensing Township ( "Township ") from January 2002 to the present, Respondent Bernard Mendez ( "Mendez ") has been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. 2. A violation of Section 1103(a) of the Ethics Act occurred in relation to Mendez inappropriately receiving compensation for administrative duties performed by him. 3. No violation of Section 1104(a) of the Ethics Act occurred in relation to Mendez's alleged failure to file a 2004 calendar year Statement of Financial Interests form. In Re: Bernard Mendez, Respondent ORDER NO. 1481 File Docket: 06 -036 Date Decided: 7/21/08 Date Mailed: 8/5/08 1 A violation of Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), occurred in relation to the inappropriate receipt of compensation by Bernard Mendez ( "Mendez "), a Supervisor for Lower Towamensing Township ( "Township "), for administrative duties performed by him. 2. No violation of Section 1104(a) of the Ethics Act occurred in relation to Mendez's alleged failure to file a 2004 calendar year Statement of Financial Interests form. 3. Per the Consent Agreement of the parties, Mendez is directed to make payment to the Township in the amount of $2,371.25 as follows: monthly payments of $197.60 per month for twelve (12) months, made payable to the Township of Lower Towamensing and forwarded to the Pennsylvania State Ethics Commission, with the first payment due within thirty (30) days of the issuance of this Order. 4. Per the Consent Agreement of the parties, Mendez is directed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the amount paid in settlement of this matter. 5. Compliance with Paragraphs 3 and 4 above will result in the closing of this case with no further action by this Commission. a. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair