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HomeMy WebLinkAbout1505 MatisIn Re: Michael D. Matis, 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 08 -002 Order No. 1505 3/12/09 3/27/09 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 allegations. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint," and an Amended Investigative Complaint. 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. Matis, 08 -002 Page 2 I. ALLEGATIONS: That Michael Matis, a public official /public employee in his capacity as a Member of the Susquehanna Depot Borough Council, violated Section 1103(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § 1103(a), when he used the authority of his office for private pecuniary gain by authorizing his employment as a Borough employee and subsequently setting his wages and participating in Council approval to issue payments to him. II. FINDINGS: 1. Michael D. Matis has served as a Susquehanna Depot Borough Council Member since August 18, 2003. a. Matis currently serves as a Council Member. b. Matis served as the Borough Council President from approximately May 10, 2005, through July 3, 2006, and January 2, 2008, through the present. c. Matis served as the Borough Council Vice - President from approximately January 4, 2004, through May 9, 2005. 2. Matis is professionally employed as a teacher for the Abington Heights School District. a. Matis is an Industrial Arts, Trades, and construction teacher. 3. Susquehanna Depot Borough is located in Susquehanna, Susquehanna County, PA. a. Susquehanna Depot Borough has a population of approximately 1,700 people. b. Susquehanna Depot Borough is governed by a seven (7) member council. c. Council meets once per month. 1. Work sessions occur as needed. d. Council members are compensated $800.00 annually for meeting attendance. 1. Council members have not been compensated in 2008. 4. As a Council Member, Matis was responsible for attending Council meetings on a monthly basis, in addition to: a. Approving Borough bills for payment. b. Approving an annual budget. c. Attending committee meetings. d. Hiring and firing Borough employees. e. Voting on agenda items to include ordinances. f. As Council President and Vice - President, Matis also had the duty of signing Matis, 08 -002 Page 3 all Borough checks issued to vendors and payroll checks. 5. Matis is the Deputy Emergency Management Agency (EMA) Coordinator for Susquehanna Depot Borough. a. Matis has been the Deputy EMA Coordinator since 2004. b. In this capacity, Matis coordinates with PEMA and FEMA representatives to obtain funding during disasters in the absence of the EMA Coordinator. 6. During the period of June 23, 2006, through July 10, 2006, Susquehanna Depot suffered severe damage caused by heavy rain that resulted in flash flooding. a. The rain was so severe that residents of Susquehanna Depot and other local communities were forced from their homes and were in need of food and water. 7 On or about August 8, 2006, the Borough submitted a grant application to FEMA to receive funding to assist with the flood damage. a. The Borough received six (6) payments from FEMA between September 18, 2006, and November 28, 2006, totaling $224,562.32. 8. As a result of the extent of flooding and the burden on the road crew, Matis, councilmen Roy Williams, Ron Whitehead, and Tom Kelley began assisting Borough residents. a. Williams utilized his 18 wheel truck and trailer to obtain water for the Borough and surrounding communities. b. The council members were not compensated for their time assisting residents. c. Council members also provided assistance to the Streets Department. 9. The Borough Streets Department consists of a full -time Street Commissioner and part -time as- needed laborers. a. Steven Glover has served as the Street Commissioner since at least 2006. b. Glover was assisted by a part -time road worker in 2006. 10. During the time period following the June /July 2006 flood, Borough council discussed during work sessions and regular meetings damage caused to Borough streets. a. There was concern among council that the Streets Department would not be able to repair all streets damaged by flooding. b. Matis and Williams assisting with road repairs was discussed during some of these meetings. c. Also during this time frame, council was experiencing problems with the Street Department completing assigned projects. d. Williams and Matis advised council that they would repair some of the damaged roads. Matis, 08 -002 Page 4 11. Beginning in or about December 26, 2006, Matis began claiming for compensation hours worked as a Borough roadworker. a. Councilman Roy Williams also began working as a paid Borough roadworker during this time. b. Williams and Matis were compensated for snow removal from Borough streets and for repairing damage to Borough streets caused by flooding. c. Williams and Matis submitted time sheets for hours worked in 2006 and 2007. d. No other council members claimed hours for compensation during this timeframe. 1. No other council members performed services for the Borough to the extent of the hours worked by Williams and Matis. 12. Neither Williams nor councilman Matis were authorized by a formal vote of council to be employed on a part -time basis to work on Borough streets or to plow snow. a. Most council members were aware that Williams and Matis were working on Borough streets but some were unaware that they were being compensated. 1. Some council members assumed that Williams and Matis were continuing to volunteer their time as they had done during the flood. 13. Matis submitted time sheets for all hours worked for the Borough for which he was compensated.* *[Cf., Fact Finding 18 a.] a. The time sheets list date worked, describe work performed and the number of hours worked. b. Matis also provided services to the Borough for which he was not compensated. 14. Matis submitted three time sheets between January 2007 and July 2008 claiming hours worked for the Borough. a. Matis' timesheets were signed by Councilman Williams as the Supervisor, approving the hours for payment. b. Williams also verbally advised the Borough secretary of other hours worked by Matis. 15. For the time period of December 26, 2006, through January 2, 2007, Matis submitted a timesheet claiming a total of 42.5 hours worked. a. The time sheet was signed by Matis as the employee and Williams as the supervisor. b. The work completed during this time period was in relation to work on Franklin Avenue in reference to flood damage. DATE DESCRIPTION OF WORK HOURS 12/26/06 None listed 6 12/27/06 None listed 8 12/28/06 None listed 7.5 12/29/06 None listed 7 12/30/06 None listed 4.5 12/31/06 None listed 2.5 01/02/07 None listed 7 DATE DESCRIPTION OF WORK HOURS 08/17/07 East Street 6 Undated East Street 7.5 Undated East Street 7.5 Undated East Street 7.5 Undated East Street 4.5 Undated East & Front Street 5 DATE DESCRIPTION OF WORK HOURS 08/09/07 None listed 7.5 08/10/07 None listed 4 08/13/07 None listed 7.5 08/14/07 None listed 7 08/15/07 None listed 7.5 08/16/07 None listed 7.5 Matis, 08 -002 Page 5 c. The following chart reflects work claimed by Matis on the time sheet for December 26, 2006, through January 2, 2007. 16. For the time period of August 9, 2007, through August 16, 2007, Matis claimed a total of 41.0 hours on a time sheet approved by Councilman Williams. a. Matis did not sign the time sheet. b. The work completed during this time period was roadwork and other work in association with repairs for flood damage. c. Matis' time sheet did not disclose any specific duties performed during the August 9, 2007, through August 16, 2007, timeframe as listed below: 17. An undated time sheet was submitted by Matis, or on his behalf claiming 54 hours worked. a. The time sheet was not signed by either Matis as employee or Williams as the supervisor. b. The time sheet reflects 6 hours work completed on August 17, 2007, but does not list other dates when work was completed. c. The work completed during this time period was road and other work in association with repairs for flood damage on East and Front Streets. d. The undated time sheet was paid by way of a Borough check dated August 30, 2007. e. The following reflects hours submitted by Matis for compensation beginning on August 17, 2007. CHECK CHECK GROSS NET WILLIAMS SIGNED NUMBER DATE CHECK CHECK CHECK AS COUNCIL AMOUNT AMOUNT VICE - PRESIDENT Undated East Street 8 Undated Front Street 8 Matis, 08 -002 Page 6 18. Matis also claimed 22 hours worked for the week ending July 19, 2007. a. Matis did not complete a time sheet. b. Councilman Williams called Borough Secretary Stewart and informed her of hours worked by Matis. c. Matis never provided a time sheet to back up the phone call made by Williams. d. In lieu of a time sheet, Ann Stewart listed on a piece of paper in a handwritten note, Per Roy, W/E 7/19/07, Mike, 22 hours." 19. As part of the work performed by Matis, an excavator was rented to assist with repairs to Borough streets. a. Matis rented an Excavator 8K for four (4) weeks from August 6, 2007, to September 6, 2007, from Junction Equipment, Johnson City, New York. b. The excavator was utilized during weekdays between the time period August 17, 2007, until September 5, 2007. 20. Matis was compensated at the rate of $12.00 per hour for hours worked in 2006 and 2007. a. Williams advised the Borough secretary /treasurer to pay Matis $12.00 /hour at the time he submitted the first time sheet in 2007. 1. Williams was also paid $12.00 /hour. b. A part -time Street Department employee was also paid at the rate of $12.00 at that time. c. There were no discussions or votes by council regarding the rate of pay which Williams and Matis were to receive. 21. Borough employees are paid by a bi- weekly check. a. Borough paychecks bear two (2) signatures. 1. The Secretary /Treasurer, the President of Council, and Vice - President of Council are authorized to sign Borough checks. b. In the event that the President and Vice - President are not available, the Secretary /Treasurer has a stamp of the Council President's signature she can use. 22. Matis received four (4) paychecks for work completed for Susquehanna Depot Borough between January 18, 2007, and August 30, 2007, totaling net payments of $1,699.11. 11882 01/18/07 $510.00 $470.52 Yes 12295 07/19/07 $264.00 $243.57 No 12352 08/16/07 $492.00 $415.06 Yes 12388 08/30/07 $648.00 $569.96 Yes Total $1,699.11 Matis, 08 -002 Page 7 a. Roy Williams, as Borough Council President signed three (3) of the four (4) paychecks Matis received. The fourth pay check was stamped with Thomas Kelly's signature by Ann Stewart. b. Kelly was not available to sign the checks. c. Stewart is authorized to use Council President Thomas Kelly's stamp for necessary documents when no authorization signature is available. 23. None of the paychecks issued to Matis were approved by a vote of council. a. Payroll for any Borough employee is not approved by vote of council at the time paychecks are processed. b. Payroll in general is approved by Borough council at the time the annual budget is approved. III. DISCUSSION: As a Member of Council of Susquehanna Depot Borough ( "Borough ") from August 18, 2003, to the present, Respondent Michael D. Matis, hereinafter also referred to "Respondent," "Respondent Matis," and "Matis," 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 Respondent Matis violated Section 1103(a) of the Ethics Act when he used the authority of his office for private pecuniary gain by authorizing his employment as a Borough employee and subsequently setting his wages and participating in Council approval to issue payments to him. 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). 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 Matis, 08 -002 Page 8 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. Respondent has served as a Borough Council Member since August 18, 2003. Respondent served as President of Borough Council from approximately May 10, 2005, through July 3, 2006, and from January 2, 2008, through the present. Respondent served as Vice - President of Borough Council from approximately January 4, 2004, through May 9, 2005. During the period of June 23, 2006, through July 10, 2006, the Borough incurred severe damage caused by heavy rain that resulted in flash flooding. The Borough received funding from FEMA to assist with the flood damage. Respondent and other Council Members including Roy Williams ( "Williams ") provided assistance to Borough residents without being compensated for their time. During work sessions and regular meetings following the June /July 2006 flood, Borough Council discussed having Respondent and Williams assist with Borough road repairs. Respondent and Williams advised Council that they would repair some of the damaged roads. Beginning in or about December 26, 2006, Respondent began claiming, for compensation, hours worked as a Borough road worker. Both Respondent and Williams were compensated for snow removal from Borough streets and for repairing damage to Borough streets caused by flooding. Neither Respondent nor Williams had been authorized by a formal vote of Council to be employed on a part -time basis to work on Borough streets or to plow snow. Most Council Members were aware that Respondent and Williams were working on Borough streets, but some were unaware that they were being compensated. Some Council Members assumed that Respondent and Williams were continuing to volunteer their time as they had done during the flood. For the time period of December 26, 2006, through January 2, 2007, Respondent submitted a time sheet claiming compensation for 42.5 hours of work. Respondent signed the time sheet as the employee and Williams signed the time sheet as the supervisor approving the hours for payment. For the time period of August 9, 2007, through August 16, 2007, Respondent submitted a time sheet claiming compensation for 41 hours of work. Respondent did not sign the time sheet. Williams signed the time sheet as the supervisor approving the hours Matis, 08 -002 Page 9 for payment. An undated time sheet was submitted by Respondent, or on his behalf, claiming compensation for 54 hours of work. The time sheet includes 6 hours of work on August 17, 2007, but does not list other dates when work was completed. The time sheet was not signed by either Respondent as the employee or Williams as the supervisor. Respondent also claimed compensation for 22 hours of work for the week ending July 19, 2007. Respondent did not complete a time sheet for this work. Williams called the Borough Secretary and informed her of hours worked by Respondent. At the time Respondent's first time sheet was submitted in 2007, Williams advised the Borough Secretary /Treasurer to pay Respondent $12.00 per hour, which was the hourly rate the Borough paid to part -time Street Department employee(s) at that time. Respondent was compensated at the rate of $12.00 per hour for hours worked in 2006 and 2007. There were no discussions or votes by Council regarding a rate of pay for Respondent and Williams. In 2007, Respondent received from the Borough four paychecks totaling $1,699.11 (net) for work performed for the Borough. None of the paychecks issued to Respondent were approved by a vote of Borough Council. Borough paychecks bear two signatures. As President of Council, Williams was authorized to sign Borough checks. As Council President, Williams signed three of the four paychecks issued to Respondent for the aforesaid road work in 2006 and 2007. 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 in relation to Matis authorizing his employment as a Borough employee and subsequently setting his wages and participating in Council approval to issue payments to him. 4. Matis agrees to make payment in the amount of $500.00 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 1 -2. Matis, 08 -002 Page 10 In considering the Consent Agreement, we accept the parties' recommendation for the finding of an unintentional violation of Section 1103(a) of the Ethics Act. Each element of the recommended unintentional violation has been established. Respondent used the authority of his public position by claiming and receiving compensation for hours worked as a Borough road worker without such employment being approved by Council. For each of the following time periods, Respondent claimed the indicated number of hours of work by submitting a time sheet: (1) December 26, 2006, through January 2, 2007, 42.5 hours; and (2) August 9, 2007, through August 16, 2007, 41 hours. An undated time sheet was submitted by Matis, or on his behalf, claiming 54 hours of work, with 6 of such hours claimed for August 17, 2007, and no other dates listed for the other hours. Additionally, for the week ending July 19, 2007, Respondent claimed compensation for 22 hours of work without submitting any time sheet. Williams simply informed the Borough Secretary of hours worked by Respondent. But for being a Borough Council Member, Respondent would not have been in a position to claim and submit hours for performing Borough road work without such employment being approved by Council. At the time Respondent's first time sheet was submitted in 2007, Williams advised the Borough Secretary /Treasurer to pay Respondent $12.00 per hour. Respondent was compensated at the rate of $12.00 per hour for hours worked in 2006 and 2007. There were no discussions or votes by Council regarding a rate of pay for Respondent and Williams. Although the Stipulated Findings do not reflect any specific action by Respondent as to setting his own wages, per the Consent Agreement, the parties are in agreement that Respondent did set his own wages for the aforesaid hours of work. In 2007, Respondent received from the Borough four paychecks totaling $1,699.11 (net) for work performed for the Borough. None of these paychecks were approved by a vote of Borough Council. Although the Stipulated Findings do not reflect any specific action by Respondent as to participating in any Council approval to issue such payments to him, per the Consent Agreement, the parties are in agreement that Respondent did participate in Council approval to issue such payments to Respondent. The private pecuniary benefit that resulted from Respondent's aforesaid uses of authority of office consisted of compensation in the amount of $1,699.11 (net) that Respondent received for performing the aforesaid road work. Per the Consent Agreement, the parties are in agreement that Respondent did not intend to violate the Ethics Act in taking the above actions. Although intent is not a requisite element for a violation of the Ethics Act, Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Cmwlth. 1987), it is one of the factors that this Commission may consider in determining the proper disposition of a case. We conclude that the application of the law to the facts before us supports the recommended finding of an unintentional violation of Section 1103(a) of the Ethics Act. Accordingly, we hold that an unintentional violation of Section 1103(a) of the Ethics Act occurred in relation to Respondent authorizing his employment as a Borough employee and subsequently setting his wages and participating in Council approval to issue payments to him for road work performed in 2006 and 2007. As part of the Consent Agreement, Respondent has agreed to make payment in the amount of $500.00 in settlement of this matter, payable to the Commonwealth of Pennsylvania and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Matis, 08 -002 Page 11 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, Respondent is directed to make payment in the amount of $500.00 payable to the Commonwgalth of Pennsylvania and forwarded to this Commission by no later than the thirtieth (30 day after the mailing date 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. As a Member of Council of Susquehanna Depot Borough ( "Borough ") from August 18, 2003, to the present, Respondent Michael D. Matis ( "Matis ") 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. Matis unintentionally violated Section 1103(a) of the Ethics Act when he authorized his employment as a Borough employee and subsequently set his wages and participated in Council approval to issue payments to him for road work performed in 2006 and 2007. In Re: Michael D. Matis, Respondent ORDER NO. 1505 File Docket: 08 -002 Date Decided: 3/12/09 Date Mailed: 3/27/09 1 Respondent Michael D. Matis ( "Matis "), as a Member of Council of Susquehanna Depot Borough ( "Borough "), unintentionally violated Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), when he authorized his employment as a Borough employee and subsequently set his wages and participated in Council approval to issue payments to him for road work performed in 2006 and 2007. 2. Per the Consent Agreement of the parties, Matis is directed to make payment in the amount of $500.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission by no later than the thirtieth (30 day after the mailing date of this Order. a. Compliance 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