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HomeMy WebLinkAbout1485 YoungIn Re: Rebecca Young, 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 07 -004 Order No. 1485 9/22/08 10/10/08 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. 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. Young, 07 -004 Page 2 I. ALLEGATION: That Rebecca Young, a public official /public employee in her capacity as an Administrative Officer 2, Bureau of Information Services, Department of Transportation, 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 office for the private pecuniary gain of a member of her immediate family by participating in decisions of the Bureau of Information Services resulting in the selection of her husband to be employed as a consultant to the Department. II. FINDINGS: 1. Rebecca Young (Ms. Young) has been employed by the Commonwealth of Pennsylvania for over 25 years, commencing on April 16, 1973. a. Ms. Young worked for the Department of Transportation (PennDOT) from April 16, 1973, through September 21, 2007. b. During her PennDOT employment, Ms. Young was classified in various clerical /administrative positions, including Clerk 2 and 3; Clerk Typist 1, 2, and 3; Administrative Assistant 1 and 2; and Administrative Officer 2 and 3. 1. For approximately eight years, including all times relevant to this investigation, Ms. Young was an Administrative Officer 2 in PennDOT's Bureau of Information Systems (BIS). 2. Effective August 19, 2006, Ms. Young accepted a promotion to the Administrative Officer 3 classification and transferred to PennDOT's Bureau of Public Transportation. c. Ms. Young left PennDOT to begin a position as an IT Planning Specialist I with the Governor's Office of Administration on September 24, 2007, a position she still holds this date. 2. For approximately 35 years, including all times relevant to this investigation, Rebecca Young has been married to Steven Young. 3. During the time period relevant to this investigation, Ms. Young's responsibilities as an Administrative Officer 2 included: a. Serving as BIS budget coordinator, implementing the budget planning of, and monitoring the expenditure of funds by, BIS upper management; b. Overseeing the BIS Project Office, responsible for processing BIS contracts and purchase orders (P05), which oversight included supervising eight BIS employees and several as- needed contracted consultants in the BIS Project Office; and c. Coordinating BIS activities involving PennDOT's Bureaus of Office Services and Fiscal Management. 4. Ms. Young's chain of command in BIS at the time relevant to the investigation included her direct supervisor, Acting Bureau Director Martin Shortall and his direct supervisor, PennDOT Chief Information Officer (CIO) Beth Roose (Roose). a. Roose was also known as Beth Schneckenberger. Young, 07 -004 Page 3 b. Roose became PennDOT's CIO in November of 2004. 5. Ms. Young filed Statements of Financial Interests with the State Ethics Commission (Commission) for calendar years 2005 and 2006, identifying herself as a public employee on the forms. 6. BIS upper management consists of the CIO, the Bureau Director, and three Division Chiefs. 7 In April of 2004, the Department of General Services (DGS) issued a Request For Proposals (RFP) to procure a contract for information technology (IT) staff augmentation services (Contract). a. DGS issued the RFP anticipating a Contract effective date in June or July of 2004. b. Due to numerous revisions of the RFP and extensions of the response date, DGS did not award the Contract until December 2004 and did not complete Contract execution until April 11, 2005. 8. In late 2004, DGS awarded the Contract to Computer Aid, Inc. (CAI), a firm proposing to use numerous subcontractors for specific Contract services. 9. Because of the delays in the procurement and the urgency of need for Contract services, DGS and CAI, through the emergency contracting procedures under Section 516 of the Commonwealth Procurement Code, entered into an emergency interim contract with CAI for IT staff augmentation services (Interim Contract). a. The Interim Contract was to be in effect from December 20, 2004, until the Contract execution date. b. DGS notified Commonwealth agencies that it would permit agencies to issue emergency POs (EPOs) under the Interim Contract beginning December20, 2004, and extending until final Contract execution. 10. The Interim Contract contained no specific procedures for agencies to select subcontractors and consultants to provide Interim Contract services. a. CAI advised Commonwealth agencies that it would accept agency requests for the services of specific consultants under the Interim Contract (Direct Request Process). b. PennDOT procured all Interim Contract services via EPOs using the Direct Request Process. c. PennDOT issued its first EPO under the Interim Contract on January 4, 2005. 11. PennDOT was one of the agencies with urgencies of need for IT staff augmentation services in December of 2004. 12. Roose determined telecommunications consulting services to be one of PennDOT's urgent Interim Contract needs. 13. Early in January of 2005, Roose discussed her need for telecommunications consulting services with Ms. Young. a. Roose told Ms. Young that Roose had no experience with Young, 07 -004 Page 4 telecommunications. b. Roose asked Ms. Young if Ms. Young knew anyone with telecommunications expertise. c. In response, Ms. Young informed Roose that Ms. Young knew that TEKSystems could provide telecommunications expertise, because Ms. Young's husband, Steven Young (Mr. Young), had previously worked for TEKSystems doing telecommunications work. d. Roose asked Ms. Young to have Mr. Young send Roose his resume for consideration. 14. Ms. Young asked Mr. Young to e-mail his resume to Roose. a. Mr. Young attempted to send his resume to Roose's e-mail address on or about January 12, 2005, but his e-mails came back as undeliverable. b. As a result of the e -mail problems, Mr. Young e- mailed his resume to Ms. Young. c. Ms. Young forwarded Mr. Young's e-mail containing his resume to Roose. 15. After reviewing Mr. Young's resume, Roose asked Ms. Young to arrange an interview between Roose and Mr. Young. a. The meeting was set for January 14, 2005. b. Ms. Young confirmed the meeting via e-mail on January 12, 2005. 16. Mr. Young came to the BIS offices to meet with Roose on January 14, 2005. a. Ms. Young did not participate in the meeting. b. During the meeting, Roose informed Mr. Young of her need for telecommunications consulting services under the Interim Contract. c. Roose informed Mr. Young that she would like to obtain his services as a subcontractor to CAI under the Interim Contract via an EPO, which would have required Mr. Young to be added as a subcontractor under that contract. d. During the meeting, Roose and Mr. Young discussed his recent employment as a subcontracted consultant with TEKSystems, one of CAI's listed subcontractors for the Interim Contract. e. Because TEKSystems was a preapproved CAI subcontractor, [Mr.] Young offered to speak to TEKSystems about working under the TEKSystems subcontract if it would expedite implementation of the EPO. f. Roose reacted positively to Mr. Young's offer and told Mr. Young she would discuss this with CAI's onsite contract coordinator, Ellen Sigl (Sigl). Mr. Young left the meeting with the impression that Roose intended to offer him a position under the Interim Contract through CAI's subcontract with TEKSystems. g. 17. After the meeting she had with Mr. Young, Roose discussed Mr. Young's Young, 07 -004 Page 5 qualifications with Sigl and told Sigl that she (Roose) would like to use Mr. Young's services under the Direct Request Process. a. Sigl requested that Roose provide a copy of Mr. Young's resume to Sigl. b. As a result, Roose asked Ms. Young to send Mr. Young's resume, along with the resume of Karen E. Shaner, another consultant, to Sigl. 1. Ms. Young sent both resumes to Sigl via e-mail on January 21, 2005. 2. Shaner's resume was submitted for Interim Contract work unrelated to the telecommunications work, through another CAI subcontractor. 3. Shaner had not previously worked for CAI or BIS. 4. Ms. Young's e-mail to Roose read, in part, "Hi Ellen, attached are the resumes Beth Roose, CIO, requested that I forward to you. Beth may be looking at utilizing these individuals in the future." 18. Mr. Young's resume listed the following telecommunications training and experience: a. Over 1,000 hours of technical and management training provided by United Telephone Company of PA and Sprint, 1962 -2002. b. TEKSystems CAD Operator, performing database clean -up /outside plant terminal matching at Sprint (March 2004 - November 2004). c. Sprint Area Technical Support Manager Government Services Division (2001- 2002), CPE Supervisor (1990-2001), Switch Supervisor (1986- 1990), Telecommunications Supervisor (1985- 1986), Technical Service Representative IV i.e. NOS IV (November 1984 -April 1985), Sprint, US Telecom and US Telephone, Washington, D.C. Special Service Maintenance Technician (1972- November 1984), Installation & Repair (1970- 1972), Warehouseman (July 1969- 1970), United Telephone Co. of Pennsylvania. 19. Between January 12 and January 26, 2005, Roose asked Ms. Young to discuss the need for telecommunications services with Joyce Black (Black), acting Chief of BIS's Planning and Consulting Division. a. Roose asked Ms. Young to request that Black develop position description specifications for the telecommunications consulting EPO, as the position would be working within Ms. Black's division. b. Black provided Ms. Young with specifications for telecommunications services to be provided under the EPO. c. Black was one of the three division chiefs in BIS, though Black had no supervisory authority over Ms. Young. d. Black's position was also subordinate to the BIS director and CIO. e. Black had no role in selecting Mr. Young for work under the Interim Contract. Young, 07 -004 Page 6 20. DGS and PennDOT have specific procedures for the approval of EPOs. a. At the time of the Interim Contract, DGS required agencies to submit requests to use emergency POs for Interim Contract services to DGS for approval. b. PennDOT requires all PennDOT EPOs to go to DGS through PennDOT's Bureau of Office Services (BOS). c. BOS identifies specific individuals within PennDOT organizations who are required to submit all EPOs for the organizations. 1. For BIS, at the time the Interim Contract was in effect, the individuals required to submit the EPOs were Ms. Young and her supervisor, Martin Shortall. 2. The Governor's Office of Administration (OA) required BIS to submit all IT service requests to OA for approval. 3. PennDOT required its CIO to approve all IT service requests. 4. PennDOT also required the BIS Project Office to submit all IT service requests to OA. 21. At 11:54 a.m. on January 26, 2005, Ms. Young, at Roose's request, prepared and submitted to BOS on behalf of Roose an EPO request for Interim Contract services. a. Young e- mailed the EPO request to Catherine Keeler, the BOS staff member responsible for the review of EPOs, with copies to BOS acting director Diane Chamberlin, Roose, and Black. b. The EPO was for the services of one technical resource for a period of approximately six months. c. The EPO request included the following language: The Bureau of Information Systems has a need for a full -time technical support individual within the Data /Telecommunications area. Please contact Joyce Black at 717 - 346 -5575 or Becky Young at 717 -787- 7602 if you have any additional questions or concerns. Upon your approval, DOT will initiate the defined procedures to acquire the appropriate resource. d. The e -mail requested that BOS approve the request and forward the EPO form to DGS for its review and approval. 22. Ms. Young and her subordinate, Sibel Claywell, handled BIS's processing of the EPO request for Mr. Young's services at Roose's direction. 23. At 12:23 p.m. on January 26, 2005, Catherine Keeler (Keeler) forwarded the EPO request for Mr. Young's services to DGS buyer Michael Richart (Richart), copying Diane Chamberlin. a. Richart was the individual in DGS with the authority to approve EPOs for the staff augmentation contract. b. Keeler requested that Richart review and approve the EPO request. Young, 07 -004 Page 7 24. At 3:06 p.m. on January 26, 2005, Richart e- mailed Keeler saying he needed more information to approve the EPO request. a. Richart's e-mail notified Keeler that a position description and job title were required for DGS to approve the request. b. At 3:11 p.m. on January 26, 2005, Keeler forwarded Richart's e-mail to Ms. Young. 25. As a result of the need for a position classification, Ms. Young approached Roose, who discussed the position's requirements with Ellen Sigl. a. b. Following the discussion between Roose and Sigl, Roose requested that Ms. Young meet with Sigl to get the information on the position classification. Under the Interim Contract, CAI was not to make final decisions on the exact resources to be used to provide services; the final decision rested with the using agency (in this case, PennDOT). c. Roose made the decision to request Mr. Young for the telecommunications work. 26. In a January 26, 2005, e-mail to Keeler, Ms. Young gave Keeler the details of Mr. Young's position classification: a. In the e-mail, Ms. Young wrote, "I met with Ellen Sigl and we settled on Technical Architecture Specialist, Category 3." b. That title was one of numerous job classifications under the Interim Contract. c. Minimum training or experience requirements to classify specific positions for work did not exist under the Interim Contract. d. Sigl determined the position classification for Mr. Young as a result of her discussion of [Mr.] Young's qualifications with Roose; Sigl then presented the determination to Ms. Young. e. Keeler forwarded Ms. Young's e-mail to Richart. 27. Richart responded to Keeler with an e -mail approving the EPO request. a. Keeler forwarded Richart's e-mail to [Ms.] Young at 3:59 p.m. on January 26, 2005. b. Ms. Young sent an e-mail regarding Richart's approval of the EPO to her subordinate Sibel Claywell at 7:01 p.m. on January 27, 2005. c. [Ms.] Young's e -mail to Claywell included the following text: Sibel, the data /telecommunications staff augmentation has been approved; let's get together with Ellen Sigl to see where we go from here today. 28. On January 28, 2005, Steven Young came to BIS's offices to meet with Sigl. a. The meeting with Sigl was to discuss the details for hiring Mr. Young through TEKSystems as a consultant for the telecommunications work under the Young, 07 -004 Page 8 EPO. b. Mr. Young had no prior connection with PennDOT other than his wife's employment there. c. Mr. Young had not worked for CAI prior to the EPO, though he did previously perform telecommunications consulting work on a non - Commonwealth project for a CAI subcontractor, TEKSystems, via a project -based employment agreement. d. As a result of the meeting with Sigl, Mr. Young entered into a second project - based employment agreement with TEKSystems for the PennDOT telecommunications work. 29. On January 28, 2005, Rebecca Young requested that Sibel Claywell contact Roose to obtain the details required to prepare the telecommunications EPO. a. Roose advised Claywell that an estimated 823 hours would be required for the telecommunications consulting work as well as other project- specific details to be used in preparing the EPO. b. Ms. Young forwarded an e -mail to Claywell, originally sent from Catherine Keeler in BOS to Michael Richart at DGS, containing the position title, skill level, and pay rate to be used for the EPO. c. Claywell prepared the EPO, number 4500197877, using the information Roose provided along with standard BIS information (such as delivery and billing addresses and other contact information). d. The EPO's estimated start date was February 1, 2005, and was valid through June 30, 2005. e. Preparing EPOs was a part of Claywell's normal work duties. 30. On Friday, February 4, Ms. Young told Joyce Black that Mr. Young would be starting his consulting position at BIS on Monday (the r"). 31. Ms. Young's sole involvement in Mr. Young's hiring for the subcontracted work through TEKSystems under the EPO was that: a. When her supervisor, Roose, asked Ms. Young to provide names of anyone Ms. Young might know with telecommunications experience, Ms. Young provided Mr. Young's name; and b. Ms. Young performed her normal duties as BIS Project Office supervisor with regard to processing EPOs, including sending and receiving correspondence on Roose's behalf, arranging for a meeting between Roose and Mr. Young at Roose's request, and serving as Claywell's supervisor. 32. On February 7, 2005, Mr. Young, under a standard hourly employment agreement with TEKSystems, began performing the PennDOT telecommunications consulting work for the EPO issued to CAI under the Interim Contract. 33. Young reported his work hours to TEKSystems, which then billed CAI for Mr. Young's reported hours, and CAI would in turn include the time in the invoice to PennDOT for all billable work under the Interim Contract. Young, 07 -004 Page 9 a. TEKSystems and CAI added administrative charges to Mr. Young's rate of pay before billing CAI. b. CAI also added administrative charges to TEKSystem's charges for the billing to PennDOT. 34. The Commonwealth processed the Interim Contract invoices and paid CAI for all work invoiced. a. CAI took its administrative charges from the total paid and then paid the remainder to its subcontractors, including, for Mr. Young's work, TEKSystems. b. TEKSystems took its administrative charges from the total CAI paid and in turn paid Mr. Young at his contracted rate, withholding applicable taxes and other assessments. 35. The original EPOs (including the EPO for Mr. Young's work) BIS prepared under the Interim Contract did not include travel expenses, as BIS had anticipated all work was to be performed at BIS's offices. 36. Shortly after Mr. Young began working at BIS, his managers, Ron McDeavitt (McDeavitt) and Joyce Black, requested that Mr. Young travel to remote locations, and in some cases stay overnight, to assess telecommunications at other PennDOT facilities. a. Due to the change requiring out -of- office travel, Young requested that TEKSystems reimburse him for travel costs required by his BIS managers, in accordance with customary BIS practice. b. McDeavitt informed Roose that the EPO would have to be amended to provide for travel reimbursement. c. BIS also amended EPOs for other consultants to add travel expense reimbursement. d. To receive travel expense reimbursement, the requesting party must provide supporting documentation /receipts. 37. Roose submitted an emergency request to amend the EPO to include Mr. Young's travel to Diane Chamberlin, acting BOS director, on February 17, 2008. a. The request identified the reason for the request was that several days of overnight travel would be required to outlying PennDOT offices. b. Roose asked Sibel Claywell to prepare the amendment to the EPO for telecommunications services to provide for travel expense reimbursement. c. Claywell prepared the emergency expense request. 38. PennDOT determined that it wished to continue using Mr. Young's services beyond the EPO's June 30, 2005, end date (coinciding with the end of the Commonwealth's fiscal year). a. CAI's staff augmentation contract with DGS ( "Contract ") had become effective upon its execution April 11, 2005, at which time the Interim Contract was incorporated into the Contract. Young, 07 -004 Page 10 b. Because the Contract was in effect before the end of the fiscal year, a standard PO could be used to procure Mr. Young's services for the following year. c. On June 8, 2005, Roose submitted a Contract request to OA for approval of a full -time technical support individual to work on telecommunications for BIS to begin July 1, 2005. d. OA approved the request in an e-mail dated July 1, 2005. 39. When the EPO ended June 30, 2005, Mr. Young had worked a total of 713 hours. a. Mr. Young billed for 110 fewer hours than the 823 hours the EPO contained. b. As a result, the EPO was amended to reduce the total hours to 713. 40. As a result of the request to continue his services beyond the end of the fiscal year, Mr. Young formed his own company, Young Consulting, LLC, to subcontract with CAI for his work at BIS. a. This arrangement allowed Mr. Young to provide his services directly to, and be paid by, CAI rather than working through TEKSystems, which had not had involvement in his prior work other than to handle his billing. b. Mr. Young's subcontract with CAI was effective July 5, 2005. 41. On July 12, 2005, BIS Acting Director Martin Shortall approved the Contract PO request for Mr. Young's services to BIS under the Contract through Young Consulting, LLC. a. Shortall's Contract PO request noted that the services were to be under Shortall's overall supervision. b. Shortall was satisfied with Mr. Young's services under the EPO and favored Mr. Young's continuation as a telecommunications consultant. c. CAI classified and billed Mr. Young's services on the Contract PO to PennDOT at the same classification and rate as the services provided under the earlier EPO. d. Mr. Young began his services under the Contract PO on July 25, 2005. e. Ms. Young did not participate in the approval process for the Contract PO to obtain her husband's services for the 2005 -2006 fiscal year through CAI's Contract. 42. Contract payments under the Contract PO were handled in the same manner as contract payments under the EPO, with the exception that CAI paid Young Consulting, LLC, and Mr. Young took a monthly draw from his company rather than being paid on an hourly basis. 43. On July 20 and 21, 2005, at the request of Lou LaVia, who was to supervise Mr. Young's work under the PO, Ms. Young sent and received e-mails to and from DGS concerning authorization for travel expense reimbursement under the PO for Mr. Young's services through CAI under the Contract. Young, 07 -004 Page 11 44. Mr. Young performed services through the PO until its termination on May 19, 2006. a. Mr. Young's services were billed through CAI's "Peopleclick" Contract system. b. Approximately 1,423.5 hours of services were billed under the PO to its termination. 45. In July of 2005, Jill Reeder (Reeder) was employed in PennDOT's Center for Performance Excellence, where one of her assigned duties was to conduct organizational reviews within PennDOT's bureaus. a. Reeder received information that Roose had hired friends and relatives for work in BIS through the Contract. b. As a result of this information, Reeder conducted a review into Contract hiring practices within BIS to determine whether there was any nepotism involved. c. Reeder met with Ms. Young in January 2006 to discuss Roose's hiring of Michael Dirle and members of the Kellis family to perform Contract work. d. During the meeting, in the interest of full disclosure, Ms. Young volunteered to Reeder that Roose had hired Mr. Young to perform Contract work. e. Ms. Young also volunteered that Roose asked Ms. Young for the names of anyone Ms. Young knew with telecommunications experience and that Ms. Young told Roose that the only person Ms. Young knew who had such experience was her husband. 46. After learning that Ms. Young's husband was working under the Contract, Reeder spoke with BIS Acting Director Shortall and DGS purchaser Lionel Vazquez to determine BIS's hiring practices under the Contract. a. Reeder determined that PennDOT had no nepotism provisions in its Contract hiring practices. b. Reeder also determined that Contract consultants were not considered to be Commonwealth employees. 47. As a result of Reeder's inquiry and Ms. Young's volunteering that Mr. Young was working in BIS as a Contract consultant, PennDOT's Deputy Secretary for Administration requested that Mr. Young be terminated from his Contract position due to the appearance of a conflict of interest. a. Reeder and Shortall met with Ms. Young on May 19, 2006, to inform her that her husband was being terminated from his Contract position with BIS. b. Reeder told Ms. Young that the termination was based on an alleged conflict of interest due to Ms. Young's responsibility for coordinating the BIS budget. c. Ellen Sigl of CAI called Mr. Young into a meeting on May 19, 2006, where she informed him that he was being terminated from his consulting position due to the investigation into Roose's hiring practices. d. In the meeting, Sigl told Mr. Young that his termination was not related to his work and that he had done nothing wrong. Young, 07 -004 Page 12 48. Approximately ten months following Mr. Young's termination, PennDOT scheduled a predisciplinary conference (PDC) for Ms. Young for March 19, 2007. a. Ms. Young was notified of the PDC by memo. b. The memo informing Ms. Young of the PDC cited [/] alleged a "violation of the Governor's Code of Conduct and the Public Official and Employee Ethics Act. Specifically, your activities /involvement in the hiring of your spouse as a consultant to the Department resulted in a conflict of interest." c. Roose was no longer CIO at the time of the PDC, and attempts to locate Roose at the time were unsuccessful. 49. Ms. Young attended the PDC and volunteered the following information: a. Her duties as the AO2 for BIS included coordinating the BIS budget and supervising the Project Office, including tracking inventory and making purchases as requested. b. Her direct supervisor was Martin Shortall, who reported to Roose. c. She was familiar with the Governor's Code of Conduct and understood she was not supposed to take any purchasing action that would result in her private benefit and that she could not take anything from vendors for her personal use. d. She understood that the Governor's Code of Conduct prohibits agency employees from using their authority for private pecuniary gain and that it would bar her participation in negotiating contracts, settling any contract claims or charges, and fixing rates for any entity in which she would have a personal or financial interest. e. Mr. Young is her husband. f. Shortall and Roose initiate all contracts for BIS. g. Her name was not on any approvals connected with the EPO or PO for her husband's services through the Contract. h. She did not participate in the decision to hire Mr. Young as a consultant under the Contract. Roose requested information about her husband and made the hiring decision. j. She spoke with Ellen Sigl of CAI at Roose's direction. k. She e- mailed Sigl Mr. Young's resume at Roose's direction. k. Roose made all decisions regarding Mr. Young's pay and position classification. When Shortall was unavailable, she went to Sigl who confirmed that Sigl and Roose made the hiring decision regarding Mr. Young. m. She forwarded e-mails related to the telecommunications EPO to Cathy Young, 07 -004 Page 13 Keeler. n. She saw no issue in providing Mr. Young's resume to Roose as Ms. Young had no authority over telecommunications and the position to be filled under the Contract. o. She arranged the interview between Roose and Mr. Young at Roose's request. She forwarded the EPO request to BOS. She prepared memos and e-mails on Roose's behalf related to the telecommunications EPO pursuant to which Mr. Young was hired as a consultant. p. q. r. She told Roose she wasn't comfortable participating in correspondence related to Mr. Young's hiring. s. She did not discuss her husband's hiring with Shortall as Roose had indicated Roose would discuss the matter with Shortall. t. She volunteered that her husband was working at BIS as a consultant when she found out that Reeder was looking into allegations of nepotism under Roose in BIS hiring. [50]. In addition to the verbal disclosures cited in paragraph [49], Ms. Young submitted a two -page typewritten memo at the PDC containing, in part, the following information in support of her verbal disclosures: One of my regular job responsibilities was to draft correspondence at Beth's direction to implement policies and decisions she and her managers made in her operation of BIS. I understand that I made an error in judgment when I followed her direction to send information and draft memos regarding my husband's availability for employment as a subcontractor to a subcontractor (he subcontracted with Tek Systems) to CAI on the staff aug contract. However, I was concerned that I could be subject to disciplinary action from the CIO if I refused to provide the information, and I incorrectly assumed that providing the resume and doing my normal work to draft the correspondence at her direction would not be a problem. [51]. The PDC did not result in any disciplinary action against Ms. Young. [52]. Ms. Young in her official capacity as an AO2 and BIS Project Office manager took the following actions related to her husband's hiring by TEKSystems for consulting work to PennDOT through the CAI Contract with DGS: a. Coordinated the BIS budget, which included funding for the Contract. 1. [Ms.] Young provided input on appropriate budget for the Project Office. 2. Mr. Young's work did not fall under the Project Office budget. b. Provided Mr. Young's name as an individual who had telecommunications experience to Roose. c. Provided Mr. Young's resume to Sigl at Roose's request. Young, 07 -004 Page 14 d. Prepared and submitted the EPO request for telecommunications services on January 26, 2005. e. Participated on January 26 and 27, 2005, in a series of e -mails to and from BOS and DGS related to the EPO request for telecommunications services. f. Obtained information from Sigl regarding Mr. Young's classification and pay rate. g. Provided the classification and pay rate information to her subordinate, Sibel Claywell, to use in preparing the EPO. [53]. Mr. Young did not perform any services for PennDOT prior to his work under the EPO. a. Mr. Young has not performed any Contract services for PennDOT since the termination of the Contract PO on May 19, 2006. b. Mr. Young remains on the list of approved subcontractors under the Contract. III. DISCUSSION: At all times relevant to this matter, Respondent Rebecca Young, also referred to herein as "Respondent," "Respondent Young," or "Ms. Young," 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 allegation is that Respondent Young violated Section 1103(a) of the Ethics Act when she, as an Administrative Officer 2 for the Bureau of Information Services within the Pennsylvania Department of Transportation ( "PennDOT "), used the authority of her public position for the private pecuniary gain of a member of her immediate family by participating in decisions of the Bureau of Information Services resulting in the selection of her husband to be employed as a consultant to the Department. 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: 65 Pa.C.S. § 1103(a). § 1103. Restricted activities (a) Conflict of interest. —No public official or public 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 Young, 07 -004 Page 15 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. At all times relevant to the investigation of this matter, Respondent Young was employed as an Administrative Officer 2 in PennDOT's Bureau of Information Systems (BIS). Respondent's responsibilities as an Administrative Officer 2 in BIS included, inter alia: (1) overseeing the BIS Project Office, responsible for processing BIS contracts and purchase orders, which oversight included supervising eight BIS employees and several as- needed contracted consultants; and (2) coordinating BIS activities involving PennDOT's Bureaus of Office Services and Fiscal Management. Respondent's chain of command in BIS at the time relevant to the investigation of this matter included her direct supervisor, Acting Bureau Director Martin Shortall, and his direct supervisor, PennDOT Chief Information Officer (CIO) Beth Roose (Roose). In December 2004, the Department of General Services ("DGS ") awarded a contract for information technology ( "IT ") staff augmentation services ("Contract") to Computer Aid, Inc. ( "CAI "). The execution of the Contract was not completed until April 11, 2005. In the meantime, DGS and CAI entered into an emergency interim contract for IT staff augmentation services ( "Interim Contract ") that was to be in effect from December 20, 2004, until the Contract execution date. Under the Interim Contract, agencies could request the services of specific consultants ( "Direct Request Process "). The using agency, not CAI, made the final decision on the exact resources to be used to provide services. Roose determined that telecommunications consulting services were among PennDOT's urgent Interim Contract needs. Early in January of 2005, Roose discussed with Respondent the need for telecommunications consulting services. Roose asked Respondent if Respondent knew anyone with telecommunications expertise. Respondent informed Roose that Respondent knew that "TEKSystems" could provide telecommunications expertise, because Respondent's husband, Steven Young (Mr. Young), had previously worked for TEKSystems doing telecommunications work. Roose asked Respondent to have Mr. Young send Roose his resume for consideration. As a result of e-mail problems experienced by Mr. Young, Respondent forwarded Mr. Young's resume to Roose. At Roose's request, Respondent arranged an interview between Roose and Mr. Young. The meeting occurred on January 14, 2005, at the BIS offices. Respondent did not participate in the meeting. During the meeting, Roose informed Mr. Young that she would like to obtain his services as a subcontractor to CAI under the Interim Contract via an emergency purchase order ( "EPO "). Because TEKSystems was a preapproved CAI subcontractor, Mr. Young offered to speak to TEKSystems about working under the TEKSystems subcontract to expedite implementation of the EPO. Roose told Mr. Young she would discuss this with CAI's onsite contract coordinator, Ellen Sigl (Sigl). Young, 07 -004 Page 16 Roose discussed Mr. Young's qualifications with Sigl and told Sigl that she (Roose) would like to use Mr. Young's services under the Direct Request Process. Sigl requested that Roose provide a copy of Mr. Young's resume to Sigl. On January 21, 2005, at Roose's request, Respondent e- mailed Mr. Young's resume to Sigl. Between January 12 and January 26, 2005, Roose asked Respondent to discuss the need for telecommunications services with Joyce Black (Black), acting Chief of BIS's Planning and Consulting Division. Roose asked Respondent to request that Black develop position description specifications for the telecommunications consulting EPO. Black provided Respondent with such specifications. As part of the procedures for the approval of EPOs, detailed at Fact Findings 20 a- c(4), PennDOT requires all PennDOT EPOs to go to DGS through PennDOT's Bureau of Office Services ( "BOS "). At the time the Interim Contract was in effect, the individuals required to submit the EPOs for BIS were Respondent and her supervisor, Martin Shortall. At Roose's direction, Respondent and her subordinate, Sibel Claywell, handled BIS's processing of the "EPO request" for Mr. Young's services. On January 26, 2005, on behalf of Roose and at Roose's request, Respondent prepared and submitted to BOS an EPO request for Interim Contract services, as detailed in Fact Findings 21 a -d. A few hours later, Respondent was informed that a position description and job title would be required for DGS to approve the request. Respondent then approached Roose, who discussed the position's requirements with Sigl. Sigl determined the position classification for Mr. Young. Roose requested that Respondent meet with Sigl to obtain the information regarding the position classification. Sigl presented the determination to Respondent, and Respondent submitted the details of Mr. Young's position classification for further processing of the EPO. The EPO request was approved. Respondent received notice of the approval of the EPO request by e -mail at 3:59 p.m. on January 26, 2005. The following day, Respondent sent an e-mail regarding approval of the EPO request to her subordinate Sibel Claywell, stating "... let's get together with Ellen Sigl to see where we go from here ...." Fact Finding 27 c. On January 28, 2005, Mr. Young met with Sigl to discuss the details of his hiring through TEKSystems as a consultant for the telecommunications work under the EPO. On that same day, Respondent requested that Sibel Claywell contact Roose to obtain the details required to prepare the telecommunications EPO. Respondent forwarded an e-mail to Claywell containing the position title, skill level, and pay rate to be used for the EPO. Claywell prepared the EPO for Mr. Young's work. The EPO's estimated start date was February 1, 2005, and was valid through June 30, 2005. On February 7, 2005, Mr. Young began performing the telecommunications work for PennDOT under the EPO. From February 7, 2005, until the EPO ended June 30, 2005, Mr. Young worked a total of 713 hours under the EPO. Mr. Young performed the work through an hourly employment agreement with TEKSystems. Based upon the Stipulated Fact Findings, Roose made the decision to request Mr. Young for the telecommunications work. (Fact Finding 25 c). Respondent's involvement in Mr. Young's hiring under the EPO consisted of: (1) providing Roose with Mr. Young's name as an individual who had telecommunications experience; and (2) performing her normal duties as BIS Project Office supervisor with regard to the hiring of Mr. Young under the EPO (Fact Findings 31 a -b). PennDOT determined that it wished to continue using Mr. Young's services beyond the EPO's June 30, 2005, end date. Mr. Young formed his own company to perform the additional work through a subcontract with CAI. Respondent did not participate in the approval process for the Contract PO to obtain her husband's services for the 2005 -2006 Young, 07 -004 Page 17 fiscal year. However, Respondent exchanged e -mails with DGS on July 20 and 21, 2005, concerning authorization for travel expense reimbursement under the Contract PO for Mr. Young's services, which actions Respondent took at the request of the individual who was to supervise Mr. Young's work under the PO. Mr. Young performed services through the PO until its termination on May 19, 2006. Approximately 1,423.5 hours of services were billed under the PO. The Contract PO was terminated following a PennDOT review as to whether nepotism was involved in BIS Contract hiring practices. In the course of the review, Respondent voluntarily provided information regarding Roose's hiring of Mr. Young to perform Contract work. As a result of the review /inquiry, Mr. Young was terminated from his consulting position but was informed that he had done nothing wrong. PennDOT held a predisciplinary conference as to Respondent, at which Respondent volunteered the information detailed in Fact Findings 49 -50. The predisciplinary conference did not result in any disciplinary action against Respondent. 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 technical transgression of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a) occurred in relation to Young's participation in decisions of the Bureau of Information Services, which resulted in her husband being employed as a consultant to the Department. 4. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 1 -2. In considering the Consent Agreement, we shall accept the parties' recommendation that we find an unintentional technical transgression of Section 1103(a) of the Ethics Act. Respondent used the authority of her public position when, in response to Roose's question as to whether Respondent knew anyone with telecommunications expertise, Respondent informed Roose that Respondent's husband - -Mr. Young - -had such expertise. But for being in her public position as an Administrative Officer 2 for BIS, Respondent would not have been in a position to provide such information to Roose, who was seeking telecommunications services under the Interim Contract. We note that after providing the aforesaid information to Roose, Respondent did not remove herself from involvement with the hiring of Mr. Young to perform the telecommunications work, but rather, performed her normal duties as BIS Project Office supervisor as detailed above. Young, 07 -004 Page 18 Respondent set in motion a sequence of events resulting in Mr. Young performing work for PennDOT, initially under the EPO through an hourly employment agreement with TEKSystems, and subsequently under a subcontract with CAI. Although intent is not a requisite element for a transgression of Section 1103(a) of the Ethics Act (Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Cmwlth. 1987); see also, Green, Order 1524; Shaub, Order 1242), it is one of the factors that this Commission may consider in determining the proper disposition of a case. In the instant matter, it is clear that Respondent did not intentionally transgress Section 1103(a). We conclude that the application of the law to the facts before us supports the recommended finding of an unintentional technical transgression of Section 1103(a) of the Ethics Act. 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, we hold that an unintentional technical transgression of Section 1103(a) of the Ethics Act occurred in relation to Respondent's participation in decisions of BIS, which resulted in her husband being employed as a consultant to PennDOT commencing in February 2005. This Commission shall take no further action in this matter. IV. CONCLUSIONS OF LAW: 1. Rebecca Young ( "Respondent Young "), in her capacity as an Administrative Officer 2 for the Bureau of Information Services ( "BIS ") within the Pennsylvania Department of Transportation ( "PennDOT "), 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. 2. An unintentional technical transgression of Section 1103(a) of the Ethics Act occurred in relation to Respondent Young's participation in decisions of BIS, which resulted in her husband being employed as a consultant to PennDOT commencing in February 2005. In Re: Rebecca Young, Respondent ORDER NO. 1485 File Docket: 07 -004 Date Decided: 9/22/08 Date Mailed: 10/10/08 An unintentional technical transgression of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to the participation of Rebecca Young - -as an Administrative Officer 2 for the Bureau of Information Services ( "BIS "), Pennsylvania Department of Transportation ( "PennDOT ") - -in decisions of BIS, which resulted in her husband being employed as a consultant to PennDOT commencing in February 2005. BY THE COMMISSION, Louis W. Fryman, Chair