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HomeMy WebLinkAbout1514 CalvertIn Re: Raymond Calvert, 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 -035 Order No. 1514 4/30/09 5/15/09 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." An Answer was not filed. A Stipulation of Findings and a Consent Agreement waiving an evidentiary hearing were 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. Calvert, 08 -035 Page 2 I. ALLEGATIONS: That Raymond Calvert, a (public official /public employee) in his capacity as a Supervisor for Buffalo Township, Washington County, violated Sections 1103(a), 1104(a) and 1105(b) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a), 1104(a), and 1105(b), when he used the authority of his public position for private pecuniary benefit by participating in the decision of the Board of Supervisors resulting in his appointment as Township Building Inspector; when he participated in approving compensation for himself as Building Inspector, which was not approved by the Buffalo Township Board of Auditors; when he failed to file a Statement of Financial Interests for [the] 2003 calendar year; and when he failed to disclose on Statement of Financial Interests forms filed for the 2005, 2006, and 2007 calendar years, all sources of income in excess of $1,300.00. II. FINDINGS: 1. Raymond Calvert served as a Supervisor for Buffalo Township, Washington County, from June 6, 1995, through December 31, 2007. a. Calvert served as board Chairman from January 2, 1996, through January 5, 1997. b. Calvert served as board Secretary /Treasurer from January 6, 1997, through December 31, 2007. c. Calvert resigned as a Buffalo Township Supervisor effective January 1, 2008, as a result of relocating outside of Buffalo Township. 2. Calvert served Buffalo Township concurrently in two separate employee positions between the dates of January 6, 2003, through December 31, 2007. a. Calvert served as the township secretary /treasurer from January 6, 2003, through December 31, 2007. b. Calvert served as the township Building Inspector from January 6, 2003, through January 1, 2007. c. Calvert served as the Alternate Building Inspector from January 2, 2007, through December 31, 2007. 3. Buffalo Township is a second -class township governed by a three - member board of supervisors. a. Supervisors currently receive $150.00 gross per meeting paid quarterly as payment for services in their supervisor capacity. 1. Regular meetings are scheduled once per month on the first Wednesday of the month. 2. Special meetings are held throughout the year as needed. 4. Voting at Buffalo Township meetings occurs in group aye /nay fashion aftera motion is made and properly seconded. a. Any objections or abstentions cast are specifically documented in the minutes. 1. During Calvert's tenure, minutes were taken by office secretary Calvert, 08 -035 Page 3 Denise Folle. 2. Folle documented votes taken as passing unanimously if no specific objection or abstention was voiced by any of the supervisors present. 5. Signature authority over township accounts lies with all three township supervisors. a. Township checks require the signatures of at least two supervisors. 1. All three supervisors normally sign township checks if available to do SO. b. Signatures on township checks must be live signatures. 1. Facsimile stamps are not utilized. 6. From at least March 1973, Buffalo Township has maintained a zoning ordinance to address construction /development within the township. a. Zoning Ordinance No. 17 was enacted by the township supervisors on March 8, 1973. b. Zoning Ordinance No. 27 was enacted by the township supervisors on August 23, 1984. 1. Zoning Ordinance No. 27 amended Zoning Ordinance No. 17. 7 Zoning Ordinances 17 and 27 set forth the establishment of a Zoning Officer position to administer and enforce the Zoning Ordinances for Buffalo Township. a. Zoning Ordinance No. 27 set forth specific duties of the Zoning Officer, which included, among others, the following: 1. Receipt, examination, and processing of all applications for Zoning Permits; 2. Issuance of permits for Permitted Uses, Special Exception Uses, and Conditional uses in accordance with the literal terms of the Ordinance, upon order of the Zoning Hearing Board, and upon order of the township supervisors respectively; 3. Conduction of inspections and surveys to determine compliance or non - compliance with the terms of the Ordinance; 4. Issuance of Building Permits and Occupancy Certificates. b. Zoning Ordinance No. 27 prohibited the zoning officer from holding any elective office in the township. 8. The township zoning officer was responsible for the issuance of building permits in conjunction with the enforcement of the township zoning ordinances. a. The township zoning officer was appointed by the township supervisors. 9. Building permit and occupancy permit fees were established via specific fee schedules as set forth in Township Resolution No. 8 adopted on January 7, 1980. Calvert, 08 -035 Page 4 a. Building permit and occupancy permit fees established by Resolution No. 8 remained in effect until July 7, 2004. 10. Construction /development projects requiring the services of the township zoning officer generally followed an established application procedure as follows: a. Initial contact with the township office secretary and completion of an application for required permits. 1. The township office secretary subsequently forwarded the information /application to the township zoning office for review. b. Contact of the applicant by the zoning officer for property information, project information, etc. c. Research by the zoning officer of the property's zoning classification in order to determine required setbacks. d. Determination by the zoning officer that the project was permissible and issuance of a building permit. 1. Issuance of the building permit required the payment of fees established via Resolution No. 8. 2. Permit fees required were paid to the township. 11. Once the building permit was issued by the zoning officer, the property owner(s) had one year to complete the project. a. After completion, the zoning officer traveled to the project site to inspect the completed work per the applicable township ordinance. b. If completed in accordance with township ordinance, the zoning officer issued an occupancy permit for the project. 1. Issuance of the occupancy permit required the payment of fees established via Resolution No. 8. 2. Occupancy permit fees were paid to the township. 3. Issuance of the occupancy permit effectively closed the project. 12. The township zoning officer's salary of $100.00 per month plus mileage and ten percent of all building permit and occupancy permit fees collected each month was set by the Board of Supervisors. a The township zoning officer presented a monthly report to the township regarding fees collected for building permits issued, occupancy permits issued, sub - division fees, etc. 1. The total amount due to the zoning officer was documented on the monthly report. 2. Payment issued to the zoning officer was included on the monthly bill list approved by the township supervisors. 13. The township had no established municipal building code regarding construction in Calvert, 08 -035 Page 5 the township prior to the adoption of the Uniform Construction Code (UCC). a. The township supervisors discussed the possibility of adopting the UCC dating back to at least 2002. b. Calvert participated in the discussion with the remaining supervisors regarding the adoption of the UCC. 14. The UCC statute, also known as the Pennsylvania Construction Code Act (Act), is documented under 35 P. S. §§ 7210.101 to 7210.1103. a. As a general rule, the Act applies to the construction, alteration, repair, and occupancy of all buildings in the Commonwealth with various exclusions as documented in Section 7210.104. 15. Enforcement of the UCC began on April 9, 2004, by the Department of Labor and Industry for all State owned buildings and elevators regardless of location. a. Municipalities were given a ninety day grace period beginning on April 9, 2004, to decide on whether to opt -in or opt -out of UCC enforcement. 16. The purpose of the Act includes, but it not limited to, the following: a. To provide standards for the protection of life, health, property, and environment and for the safety and welfare of the consumer, general public, and the owners and occupants of buildings and structures; b. To encourage standardization and economy in construction by providing requirements for construction and construction materials consistent with nationally recognized standards; c. To assure that officials charged with the administration and enforcement of the technical provisions are adequately trained and supervised; and d. To start a process leading to the design, construction, and alteration of buildings under a uniform standard. 17. Pennsylvania municipalities had the choice to either opt -in or opt -out regarding enforcement of the UCC. a. Opt -in municipalities represent those municipalities that elected to enforce the UCC locally. 1. Enforcement of the UCC for opt -in municipalities occurs via the municipality's own employees or via certified third -party agencies retained by the municipality. b. Opt -out municipalities represent those municipalities that relinquished all UCC enforcement authority to either the Department of Labor and Industry or certified third -party agencies retained by the property owner. 1. Enforcement of the UCC for opt -out municipalities by the Department of Labor and Industry is limited to non - residential buildings and structures. 2. Enforcement of the UCC for opt -out municipalities by certified third party agencies applies to residential code enforcement. Code Number Certification Category 10 15 Building Inspector 18 Fire Inspector 19 Electrical Inspector 20 Mechanical inspector 21 Plumbing Inspector 22 Energy Inspector 23 Accessibility Inspector /Plans Examiner 24 Building Plans Examiner 25 Electrical Plans Examiner 26 Mechanical Plans Examiner 27 Plumbing Plans Examiner 28 Energy Plans Examiner 29 Building Code Official 30 Elevator Inspector 31 Passenger Ropeway Inspector Code Number Certification Category 10 Residential Building Inspector 11 Residential Electrical Inspector 12 Residential Mechanical Inspector 13 Residential Plumbing Inspector 14 Residential Energy Inspector Calvert, 08 -035 Page 6 c. The Department of Labor and Industry has sole jurisdiction for enforcement of the UCC regarding all elevators and all state owned buildings regardless of location. 18. The Pennsylvania Construction Code Act and UCC regulations establish training and certification requirements for all construction code officials in Pennsylvania. a. Officials can become certified in five residential categories established by the Pennsylvania Department of Labor and Industry as shown below: 1. Officials must become certified in each category for which they wish to complete inspections. b. Officials can become certified in fifteen commercial categories established by the Pennsylvania Department of Labor and Industry as shown below: 1 Officials must become certified in each category for which they wish to complete inspections. aa. An individual who holds a commercial inspection certification may perform the corresponding residential inspection without holding a certification for that residential category. Calvert, 08 -035 Page 7 c. Certifications are valid for a three year period. 19. For one - family and two - family dwelling units as well as utility and miscellaneous use structures, the UCC requires all of the following inspections: a. Foundation inspection; b. Plumbing, mechanical, and electrical inspection; c. Frame and masonry inspection; d. Wallboard inspection; and e. Final inspection. 1. The final inspection cannot be approved until all previous inspections are successfully completed and passed. 20. In or about 2002, Calvert was approached by the remaining township supervisors and requested to perform the responsibilities of building inspector for the township as a result of the township's anticipated adoption of the UCC. a. Calvert agreed to perform the duties of building inspector for the township at the same inspection rate Calvert received as a contract employee of the Washington County Sewage Council. 1. Calvert was employed as a contract Sewage Enforcement Officer for the Washington County Sewage Council at that time. 2. Calvert received payment ranging from $25.00 per hour for hourly services up to $75.00 per specific test /inspection performed based on his Agreement with the Local Cooperative Sanitation Council (a /k/a Washington County Sewage Council) dated June 10, 2002. b. The wage presented by Calvert was accepted by the remaining supervisors. 21. The discussion and decision regarding Calvert holding the building inspector position and Calvert's wage for the position did not occur at a public meeting. a. The discussion held and decision made occurred informally. b. The township did not publicly advertise or collect resumes /applications for the newly created position of building inspector. 22. Calvert was appointed as the township Building Inspector at the January 6, 2003, township supervisors' reorganization meeting. a. Minutes note Calvert's presence and participation in the motion to appoint him to the building inspector position. 1. Minutes document the motion to appoint Calvert as the building inspector passing unanimously with no abstentions noted. b. The position of building inspector did not exist in the township prior to Calvert's appointment to the position. 1. Calvert was appointed to the position in 2003 as the result of Re- organization Meeting Position Date January 5, 2004 Building Code Inspector January 3, 2005 Building Code Inspector January 3, 2006 Building Code Inspector January 2, 2007 Alternate Building Code Inspector Calvert, 08 -035 Page 8 continued anticipation of the township's adoption of the UCC. 23. Although appointed as the building inspector in 2003, Calvert performed no work in the building inspector position during the 2003 calendar year. a. Calvert received no wages as the township building inspector in 2003. b. The township had not yet adopted the UCC by the end of 2003. 24. Calvert was subsequently appointed as the township building inspector by the Board of Supervisors from 2004 through 2006 and as the alternate building inspector in 2007 as shown below: a. Calvert was appointed as the sole building inspector in 2004. b. Calvert and HMT Associates were both appointed as building inspectors in 2005 and 2006. 1. HMT Associates is an engineering firm based in Washington, PA. 2. Calvert was specifically documented as the residential building inspector for 2006 while HMT Associates was specifically documented as the commercial building inspector for 2006. c. HMT Associates was appointed as the primary building inspector in 2007 with Calvert appointed as an alternate building inspector if HMT Associates was unavailable. 1. Calvert is not documented as having performed any building inspector services or received any building inspector wages in 2007. aa. Calvert no longer wished to perform the responsibilities of building inspector in 2007. d. Township meeting minutes confirm Calvert's presence and participation in the vote to appoint himself as the building /alternate building inspector at each reorganization meeting from 2004 through 2007. 1. Minutes document each vote appointing Calvert as the township building /alternate building inspector passing unanimously with no abstentions noted. 25. At the March 3, 2004, regular meeting of the township supervisors, Calvert announced that the township would be advertising an Ordinance for opting -in to the UCC. a. Calvert stated that the UCC was to take effect on April 9, 2004. 26. Per Section 7210.501 of the Act, municipalities were required to enact an ordinance concurrently adopting the UCC as their municipal building code and the Calvert, 08 -035 Page 9 International Gas Code for purposes described in Section 7210.102 of the Act. a. The initial election period spanned the time frame of April 9, 2004, through July 8, 2004. 27. The township adopted the UCC at the April 7, 2004, regular supervisors meeting via passage of Ordinance No. 42. a. Calvert made the motion to pass Ordinance No. 42. b. The motion to pass Ordinance No. 42 passed unanimously with no abstentions noted. c. The motion documented the effective date of the Ordinance as July 1, 2004. 1. Section 1 of Ordinance No. 42 documents Buffalo Township's election to administer and enforce the provisions of the Pennsylvania Construction Code Act, Act 45 of 1999, 35 P.S. §§ 7210.101- 7210.1103, as amended from time to time, and its regulations. 2. Section 2 of Ordinance No. 42 specifically documents Buffalo Township's adoption of the UCC, contained in 34 PA. Code, Chapters 401 -405, as amended from time to time, as the municipal building code for the township. 3. Section 6 of Ordinance No. 42 specifically documents that fees assessable by the Municipality for the administration and enforcement undertaken pursuant to the Ordinance and the Code will be established by the governing body by resolution from time to time. 4. Section 7 of Ordinance No. 42 specifically documents the Ordinance as becoming effective five days after the date of passage of the Ordinance. aa. Ordinance No. 42 is documented as being duly enacted and ordained on April 7, 2004. 5. Ordinance No. 42 was signed by Calvert, Swiger, and Supervisor Richard Folle. 28. Per Section 403.102 of the UCC, contained in 34 PA Code, Chapters 401 -405, municipalities adopting an ordinance to enforce the UCC are to submit written notification to the Pennsylvania Department of Labor and Industry of adoption of the ordinance and the following information within thirty days of adoption: a. The number and date of adoption of the ordinance; b. The name of the building code official; c. The business address of the building code official; d. The business phone number of the building code official; and e. The electronic mail address of the building code official, if available. 29. On July 19, 2004, Buffalo Township's "Pennsylvania Universal Construction Code: Municipal Election Form" was received at the director's office at the Bureau of Code Number Certification Category 10 Residential Building Inspector 12 Residential Mechanical Inspector 13 Residential Plumbing Inspector 14 Residential Energy Inspector Calvert, 08 -035 Page 10 Occupational and Industrial Safety, Department of Labor and Industry. a. The form noted Buffalo Township's election to enforce the provisions of Act 45 of 1999 (i.e. the Pennsylvania Construction Code Act). b. The form documents Calvert as the Building Code Official along with the township's name and telephone number. c. The form noted the number of the UCC adoption ordinance as No. 42. d. The form noted the effective date of the ordinance as July 7, 2004. e. Swiger's signature is present on the form as the Chief Elected Official. f. Calvert was the township representative who completed the information on the form. 30. Although appointed as the township building inspector in January 2003 and January 2004, Calvert was not a certified inspector at that time. a. Calvert was not certified through the Bureau of Occupational and Industrial Safety, Department of Labor and Industry until August 3, 2004. 1. Calvert had begun taking classes necessary to become a certified building inspector as early as 2001. 31. Calvert obtained certifications from the Bureau of Occupational and Industrial Safety, Department of Labor and Industry, effective August 3, 2004, in the categories noted below: a. Calvert's certifications expired on August 3, 2007. 32. Construction /development projects requiring the services of the township building inspector generally followed an established application procedure as follows: a. Initial contact with the township office secretary and completion of an application for required permits. 1. The application specified township requirements regarding plot plans, surveys, etc. b. Once completed, the application was returned to the township office for review by Calvert. 1. Calvert reviewed the entire application, calculated the entire fee for the project, and either personally contacted the property owner or Calvert, 08 -035 Page 11 provided the information to the office clerk for dissemination to the property owner. c. Submission of the required fees by the property owner to the township. 1. Fees determined included all fees necessary for completion of the entire project. d. Determination by Calvert that the project was in order and issuance of the permit. 33. As the township building inspector, Calvert submitted a monthly report to the township office secretary regarding services performed which included fees due Calvert for each inspection performed and the monthly fee total. a. Calvert wrote the monthly report by hand and provided it to the office secretary for typing and eventual accompaniment with the corresponding month's meeting minutes. b. Reports submitted by Calvert for the monthly meeting referenced services performed for the prior month (i.e. June report submitted for presentation at the July meeting). 34. Article VI, Section 602(c) of the Second Class Township Code addresses the ability of supervisors to be employed by their respective municipality. a. A supervisor may be appointed by the board of supervisors to be employed as roadmaster, laborer, secretary, treasurer, assistant secretary, assistant treasurer, or in any employee capacity not otherwise prohibited by the Second Class Township Code or any other Act. 35. Article VI, Section 606(a) of the Second Class Township Code addresses compensation of township supervisors not only in their supervisor capacity, but also when employed by the township in an additional position. a. Wages for working supervisors must be established by the township auditors. 1. Section 606(a) specifically notes, among other information, the following: The compensation of supervisors, when employed as roadmasters, laborers, secretary, treasurer, assistant secretary, assistant treasurer or in any employee capacity not otherwise prohibited by this or any other act, shall be determined by the board of auditors, at an hourly, daily, weekly, semi - monthly or monthly basis, which shall be comparable to compensation paid in the locality for similar services." aa. Calvert received payment from Buffalo Township on a monthly basis in the position of building inspector. 36. Wages received by Calvert were paid in association with payment received by the township from the property owner based on the fee schedule established by the township via the passage of Resolution No. 59 at the July 7, 2004, supervisors meeting. a. Minutes document Calvert's presence at the July 7, 2004, meeting and Calvert's participation in the vote. Calvert, 08 -035 Page 12 1. Calvert made the motion to approve Resolution No. 59 and voted in favor of its adoption. b. Resolution No. 59 was passed by unanimous vote. 1. No abstentions are documented in the minutes regarding the vote. c. Resolution No. 59 amended Resolution No. 8. 1. Resolution No. 59 adopted an amendment to the Building Permit Fee schedule to go along with the UCC ordinance previously adopted. 2. Resolution No. 59 bears the signatures of Calvert, Swiger, and Folle. 37. Buffalo Township's current fee schedule in place regarding zoning, building permits, sub - divisions, etc. is established via Resolution No. 73. a. Resolution No. 73 amended Resolution No. 59. 1. Resolution No. 73 bears the signatures of Calvert, Folle, and Supervisor Frank Julian, Sr. b. Resolution No. 73 was passed at the February 7, 2007, regular township meetings via unanimous vote. c. Minutes document Calvert's presence at the February 7, 2007, meeting and Calvert's participation in the vote. 1. Calvert made the motion to approve Resolution No. 73 and voted in favor of its adoption. 2. No abstentions are documented in the minutes regarding the vote. 38. The Buffalo Township Auditors hold annual re- organization meetings for the purpose of board re- organization, election of officers, and setting of wages and benefits for working supervisors. a. The auditors' re- organization meeting is normally held the day after the township supervisors' re- organization meeting. 39. Minutes of the auditors' re- organization meetings are taken by the auditor holding the office of board secretary. a. Neither the township auditors, the township secretary /treasurer, nor the office secretary maintain a bound volume of the auditors' re- organization meeting minutes. 1. Copies of auditors' re- organization meeting minutes were provided in loose leaf form to the office secretary once a hard copy was generated. b. No auditor's re- organization meeting minutes are on file with the township office or in the possession of the township auditors for calendar years 2004 through 2006. 40. Calvert's wages as the township building inspector were not established or Calvert, 08 -035 Page 13 approved by the township auditors in 2004, 2005, or 2006. a. Kandice Harrison, Frank Bellotti, and Carl Brock served as auditors for Buffalo Township in 2004, 2005, and 2006. 1. Harrision, Bellotti, and Brock were aware that Calvert was serving as the township building inspector. 2. Although aware of Calvert's service as building inspector for the township, the auditors were not requested to establish nor did the auditors ever establish any wages for Calvert as the building inspector. 41. Calvert's monthly building inspector reports note services provided and fees charged to Buffalo Township as the building inspector spanning the months of September 2004 through December 2006. a. No building inspector report was on file at the township building for January 2005. 42. Calvert received compensation for services performed as the township building inspector in the amount of $4,871.38 (net) during the time frame of November2004 through December 2006. a. Calvert voted to approve monthly bill lists on twenty -one out of twenty three occasions on which payment to Calvert as the township building inspector was documented. 1. Calvert, as the secretary /treasurer, prepared the monthly bill list by hand and provided it to the office secretary for typing on a monthly basis. aa. As the secretary /treasurer, Calvert included his wages in the position of building inspector on the monthly list of bills to be paid. 1. Calvert documented his own wages due after the township office secretary withheld required taxes from the gross amount due. b. Calvert signed all twenty -three checks as an authorized township signatory which were issued to him for services performed as the township building inspector. c. Calvert either cashed or deposited into a personal financial account all checks received as the township building inspector for eventual personal use. 43. In a sworn statement provided to Commission investigators on January 9, 2009, Calvert provided the following information: a. Calvert did not voice a vote at township re- organization meetings during votes to appoint himself into the position of building inspector. 1. Calvert did not verbally abstain from votes taken at re- organization meetings regarding his appointment as the township building inspector. Year: 2003 2004 2005 2006 2007 Filing Date: None 12/30/04 02/02/07 02/02/07 04/07/08 Calvert, 08 -035 Page 14 2. Calvert was silent regarding his annual building inspector appointment. b. Calvert did not abstain from votes to approve bill lists on which payment to Calvert was documented for services performed as the building inspector. c. Calvert's wages as the township building inspector were never presented to or approved by the township auditors. d. Calvert filed a timely Statement of Financial Interests with Buffalo Township for the 2003 calendar year. e. Calvert's failure to disclose income from Buffalo Township on Statements of Financial Interests for calendar years 2004 through 2007 was an oversight. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT CALVERT FAILED TO FILE STATEMENTS OF FINANCIAL INTERESTS FOR CALENDAR YEAR 2003 AND FAILED TO DISCLOSE BUFFALO TOWNSHIP AS A SOURCE OF INCOME ON STATEMENTS OF FINANCIAL INTERESTS FILED FOR CALENDAR YEARS 2005, 2006, AND 2007. 44. Statement of Financial Interests filing requirements for public officials and public employees are mandated by Section 1104 of the State Ethics Act. a. Calvert was required to file Statements of Financial Interests by May 1St annually in his position as a Buffalo Township Supervisor. 45. A review of /request for records on July 28, 2008, at the Buffalo Township office revealed the following Statements of Financial Interests on file for Calvert for calendar years 2003 through 2007: No Statement of Financial Interests was discovered for Calvert at the township municipal office for calendar year 2003. 46. Calvert is required to file a Statement of Financial Interests annually with the Washington County Sewage Council in his position as a contract sewage enforcement officer. a. a. Calvert typically photocopied his copy of his annual Statement of Financial Interests filed with Buffalo Township and submitted said copy to the Washington County Sewage Council. 47. Calvert had a Statement of Financial Interests on file with the Washington County Sewage Council for calendar year 2003. a. Calvert's 2003 calendar year Statement of Financial Interests on file with the Washington County Sewage Council is dated January 6, 2004. 1. Calvert's 2003 calendar year Statement of Financial Interests documents his position as a supervisor for Buffalo Township. Position 2005 2006 2007 Secretary- Treasurer ',3,600.00 ',3,600.00 ',3,600.00 Building Inspector $3,225.00 $2,270.00 $0.00 Supervisor $1,950.00 $1,950.00 $1,950.00 Total $8,775.00 $7,820.00 $5,550.00 Calvert, 08 -035 Page 15 48. Calvert did not disclose Buffalo Township as a direct or indirect source of income on his Statements of Financial Interests filed for calendar years 2005, 2006, and 2007. a. Calvert documented only his employment with the Washington County Sewage Council on Statements of Financial Interests filed for calendar years 2005, 2006, and 2007. 49. Calvert received wages from Buffalo Township during calendar years 2005, 2006, and 2007 in excess of the $1,300.00 reporting threshold required via Section 1105(b) of the State Ethics Act. a. Wages received by Calvert from Buffalo Township as documented by Calvert's IRS Form W -2s for 2005, 2006, and 2007 in his supervisor secretary /treasurer position as well as his building inspector position are noted below: III. DISCUSSION: As a Supervisor for Buffalo Township, Washington County, from June 6, 1995, through December 31, 2007, Respondent Raymond Calvert (hereinafter also referred to as "Respondent," "Respondent Calvert," and "Calvert ") has been a public official /public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The allegations are that Calvert violated Sections 1103(a), 1104(a), and 1105(b) of the Ethics Act when he, as a Supervisor for Buffalo Township, Washington County used the authority of his public position for private pecuniary benefit by participating in the decision of the Board of Supervisors resulting in his appointment as Township Building Inspector; when he participated in approving compensation for himself as Building Inspector, which was not approved by the Buffalo Township Board of Auditors; when he failed to file a Statement of Financial Interests for the 2003 calendar year; and when he failed to disclose on Statement of Financial Interests forms filed for the 2005, 2006, and 2007 calendar years, all sources of income in excess of $1,300.00. 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 Calvert, 08 -035 Page 16 "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. Subject to certain statutory exceptions not applicable to this matter, Section 1105(b)(5) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests the name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. 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 Calvert served as a Supervisor for Buffalo Township ( "Township ") from June 6, 1995, through December 31, 2007. Respondent served as Chairman of the Township Board of Supervisors ( "Board ") from January 2, 1996, through January 5, 1997. Respondent served as Board Secretary /Treasurer from January 6, 1997, through December 31, 2007. The Township is a second -class township. The Board consists of three members. Voting at Township meetings occurs in group aye /nay fashion after a motion is made and properly seconded. Any objections or abstentions cast are specifically documented in the minutes. During Respondent's tenure, votes were recorded as passing unanimously if no specific objection or abstention was voiced by any of the supervisors present. All three Township supervisors have signature authority over Township accounts. Township checks require the live signatures of at least two supervisors. Township Zoning Ordinances enacted in 1973 and 1984 established a Zoning Officer position to administer and enforce the Zoning Ordinances for the Township. The Township Zoning Officer was appointed by the Township supervisors. Per Township Zoning Ordinance No. 27 enacted in 1984, the duties of the Zoning Officer included processing zoning permit applications, issuing zoning - related permits, conducting Calvert, 08 -035 Page 17 inspections and surveys to determine compliance or non - compliance with the Zoning Ordinance, and issuing building permits and occupancy certificates. (Fact Findings 7 a (1) -(4)). Township Zoning Ordinance No. 27 prohibited the Zoning Officer from holding any elective office in the Township. See also, 53 P.S. § 10614. By at least 2002, the Township Supervisors were discussing the possibility of adopting the Uniform Construction Code (UCC). Respondent participated in the discussion with the remaining supervisors regarding the adoption of the UCC. In or about 2002, Respondent was approached by the remaining Township supervisors and requested to perform the responsibilities of building inspector for the Township as a result of the Township's anticipated adoption of the UCC. Respondent agreed to perform the duties of building inspector for the Township at the same inspection rate Respondent received as a contract employee of the Washington County Sewage Council. The wage presented by Respondent was accepted by the remaining supervisors. The Township did not publicly advertise or collect resumes /applications for the newly created position of building inspector. (Fact Finding 21 b). Respondent was formally appointed as the Township Building Inspector at the January 6, 2003, Township supervisors' reorganization meeting. The position of building inspector did not exist in the Township prior to Respondent's appointment to the position. (Fact Finding 22 b). In subsequent years, Respondent was appointed by the Board to serve as: (1) the sole Township building inspector in 2004; (2) one of two building inspectors in 2005; (3) the residential building inspector in 2006; and (4) the alternate building inspector in 2007. Per the Township meeting minutes, Respondent participated in each vote appointing Respondent as the township building inspector /alternate building inspector from 2003 through 2007. Respondent has claimed that he did not voice a vote at Township re- organization meetings during votes to appoint him to the position of building inspector. Respondent has acknowledged that he did not verbally abstain from such votes. Although appointed as the Township building inspector in 2003, Respondent performed no work and received no wages as the Township building inspector during the 2003 calendar year. The township had not yet adopted the UCC. At the Board's April 7, 2004, regular meeting, the Board adopted the UCC via passage of Ordinance No. 42. Respondent made the motion to pass Ordinance No. 42. The motion passed unanimously with no abstentions noted. Ordinance No. 42 was signed by Respondent and other supervisor(s). During the time frame of November 2004 through December 2006, Respondent received compensation for services performed as the Township building inspector in the amount of $4,871.38 (net). Respondent is not documented as having performed any building inspector services or received any building inspector wages in 2007. Respondent's wages as the Township building inspector were never presented to or approved by the Township auditors. Respondent's compensation as Township building inspector was based upon a fee schedule established by the Township via the passage of Resolution No. 59 at the July 7, 2004, supervisors meeting. Respondent made the motion and voted to approve Resolution No. 59. Resolution No. 59 was passed by unanimous vote. Resolution No. 59 bears the signatures of Calvert and other supervisor(s). As the Township Secretary /Treasurer, Respondent included his wages as building inspector on the monthly list of bills to be paid. Respondent voted to approve monthly bill lists on twenty -one out of twenty three occasions on which payment to Respondent as the Calvert, 08 -035 Page 18 Township building inspector was included on the bill list. Respondent signed as an authorized Township signatory all twenty -three checks that were issued to him for services performed as the Township building inspector. Respondent either cashed or deposited into a personal financial account all checks received as the Township building inspector for eventual personal use. With regard to Respondent's Statements of Financial Interests ( "SFIs "), the parties have stipulated that a review of the Township records on July 28, 2008, revealed that the Township did not have an SFI on file for Respondent for calendar year 2003. Respondent claims that he timely filed the form with the Township. The parties have stipulated that Respondent filed an SFI for calendar year 2003 with the Washington County Sewage Council, which form noted his position as a Supervisor for the Township. The parties have stipulated that Respondent did not disclose the Township as a direct or indirect source of income on his SFIs filed for calendar years 2005, 2006, and 2007, despite having received wages in excess of $1,300.00 from the Township in each of those years. 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 Act, 65 Pa.C.S. §1103(a) occurred in relation to Calvert's participation as a member of the Buffalo Township Board of Supervisors in relation to his appointment as the Township Building Inspector; and b. That an unintentional violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a) occurred as to Calvert's approval of compensation for services rendered by Calvert as Building Inspector, when said compensation was not approved by the Buffalo Township Board of Auditors; and c. That a technical violation of Section 1104(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1104(a) occurred when Calvert failed to maintain a Statement of Financial Interests for the 2003 calendar year with Buffalo Township, Washington County; and d. That a technical violation of Section 1105 of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1105 occurred in relation to Calvert's failure to disclose on Statements of Financial Interests forms filed for the 2005, 2006, and 2007 calendar years, sources of income in excess of $1,300.00, namely compensation from his service as a supervisor — secretary /treasurer and building inspector for Buffalo Township, Washington County. Calvert, 08 -035 Page 19 4. Calvert agrees to make payment in the amount of $1,200.00 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. Calvert agrees to file Statements of Financial Interests with Buffalo Township, through the Pennsylvania State Ethics Commission, for calendar year 2003, and amended Statements of Financial Interests for [the] 2005, 2006, and 2007 calendar years within thirty (30) days of the issuance of the final adjudication in this matter. 6. 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 considering the Consent Agreement of the parties, we shall accept the parties' recommendation for a finding that an unintentional violation of Section 1103(a) of the Ethics Act occurred in relation to Respondent's participation as a Township Supervisor as to Respondent's appointment as the Township Building Inspector. Although, pursuant to the Second Class Township Code, a supervisor serving on a three - member board is not excluded from voting on the issue of his own appointment /employment to a position that is authorized by law, 53 P.S. § 65602, it would appear that the parties are treating Respondent's service as Township Building Inspector as unauthorized based upon Township Zoning Ordinance No. 27. If the parties had not determined to enter into a Consent Agreement, we could have been presented with factual and legal issues as to whether prohibitions against a Zoning Officer holding elective office would apply to Respondent as a Building Inspector. However, given: (1) that the parties have entered into a comprehensive Consent Agreement, with benefit of legal counsel; and (2) the parties are in agreement that the finding of the aforesaid unintentional violation of Section 1103(a) would be appropriate as part of an overall settlement of this case, we shall accept the parties' proposed disposition. We note that this determination in this case based upon the agreement of the parties should not be considered as precedent for other cases, which would be determined based upon their own facts and circumstances. Accordingly, we hold that per the Consent Agreement of the parties, an unintentional violation of Section 1103(a) of the Ethics Act occurred in relation to Respondent's participation as a Township Supervisor as to Respondent's appointment as the Township Building Inspector. The parties have further recommended a finding that an unintentional violation of Section 1103(a) of the Ethics Act occurred as to Respondent's approval of compensation for services rendered by Respondent as Township Building Inspector, when said compensation was not approved by the Township Board of Auditors. Per the Second Class Township Code, wages for working supervisors must be established by the township auditors. 53 P.S. § 65606. Respondent's wages as the Township Building Inspector were never presented to or approved by the Township auditors. Respondent used the authority of his public position when he made the motion and Calvert, 08 -035 Page 20 voted to approve Resolution No. 59, establishing a fee schedule and the basis for the compensation of the building inspector. In his capacity as the Township Secretary /Treasurer, Respondent included his wages as Building Inspector on the monthly list of bills to be paid. Respondent used the authority of his public office when he voted to approve monthly bill lists on twenty -one out of twenty three occasions on which payment to Respondent as the Township Building Inspector was included on the bill list. Respondent further used the authority of his public office when he signed as an authorized Township signatory all twenty -three checks that were issued to him for services performed as the Township Building Inspector. The private pecuniary benefit that Respondent received was unauthorized compensation as a Building Inspector. We hold that an unintentional violation of Section 1103(a) of the Ethics Act occurred as to Respondent's approval of compensation for services rendered by Respondent as Building Inspector, when said compensation was not approved by the Township Board of Auditors. As for Respondent's SFIs, the parties have recommended a finding that a technical violation of Section 1104(a) of the Ethics Act occurred when Respondent failed to maintain an SFI for the 2003 calendar year with the Township, as well as a finding that a technical violation of Section 1105 of the Ethics Act occurred in relation to Respondent's failure to disclose the Township as a source of income in excess of $1,300.00 on his SFIs filed for the 2005, 2006, and 2007 calendar years. Factually, a review of the Township records on July 28, 2008, revealed that the Township did not have an SFI on file for Respondent for calendar year 2003. Additionally, the parties have stipulated that Respondent did not disclose the Township as a direct or indirect source of income on his SFIs filed for calendar years 2005, 2006, and 2007, despite having received wages in excess of $1,300.00 from the Township in each of those years. We hold that a technical violation of Section 1104(a) of the Ethics Act occurred when Respondent failed to maintain an SFI for the 2003 calendar year with the Township. We further hold that a technical violation of Section 1105 of the Ethics Act occurred in relation to Respondent's failure to disclose the Township as a source of income in excess of $1,300.00 on his SFIs filed for the 2005, 2006, and 2007 calendar years. As part of the Consent Agreement, Respondent has agreed to make payment in the amount of $1,200.00 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. Respondent has further agreed to file with the Township, through this Commission, an SFI for calendar year 2003 and amended SFIs for calendar years 2005, 2006, and 2007, within thirty (30) days of the issuance of the final adjudication in this matter. 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 $1,200.00 payable to the Commonwealth of Pennsylvania and forwarded to this Commission by no later than the thirtieth (30 day after the mailing date of this adjudication and Order. Respondent is further directed to file with the Township, through this Commission, an SFI for calendar year 2003 and amended SFIs for calendar years 2005, 2006, and 2007, providing full financial disclosure as required by the Ethics Act, by no later than the thirtieth (30 day after the mailing date of this adjudication and Order. Calvert, 08 -035 Page 21 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 Supervisor for Buffalo Township, Washington County, from June 6, 1995, through December 31, 2007, Respondent Raymond Calvert ( "Calvert ") 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. Per the Consent Agreement of the parties, Calvert unintentionally violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation to his participation as a Township Supervisor as to his appointment as the Township Building Inspector. 3. An unintentional violation of Section 1103(a) of the Ethics Act occurred as to Calvert's approval of compensation for services rendered by Calvert as Building Inspector, when said compensation was not approved by the Township Board of Auditors. 4. A technical violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Calvert failed to maintain an SFI for the 2003 calendar year with the Township. 5. A technical violation of Section 1105 of the Ethics Act, 65 Pa.C.S. § 1105, occurred in relation to Calvert's failure to disclose the Township as a source of income in excess of $1,300.00 on his SFIs filed for the 2005, 2006, and 2007 calendar years. In Re: Raymond Calvert, Respondent ORDER NO. 1514 File Docket: 08 -035 Date Decided: 4/30/09 Date Mailed: 5/15/09 1 Per the Consent Agreement of the parties, Raymond Calvert ( "Calvert "), as a Supervisor for Buffalo Township, Washington County, unintentionally violated Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), in relation to his participation as a Township Supervisor as to his appointment as the Township Building Inspector. 2. An unintentional violation of Section 1103(a) of the Ethics Act occurred as to Calvert's approval of compensation for services rendered by Calvert as Building Inspector, when said compensation was not approved by the Township Board of Auditors. 3. A technical violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Calvert failed to maintain a Statement of Financial Interests ( "SFI ") for the 2003 calendar year with the Township. 4. A technical violation of Section 1105 of the Ethics Act, 65 Pa.C.S. § 1105, occurred in relation to Calvert's failure to disclose the Township as a source of income in excess of $1,300.00 on his SFIs filed for the 2005, 2006, and 2007 calendar years. 5. Per the Consent Agreement of the parties, Calvert is directed to make payment in the amount of $1,200.00 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. 6. Calvert is further directed to file with the Township, through the Pennsylvania State Ethics Commission, an SFI for calendar year 2003 and amended SFIs for calendar years 2005, 2006, and 2007, providing full financial disclosure as required by the Ethics Act, by no later than the thirtieth (30) day after the mailing date of this Order. 7 Compliance with Paragraphs 5 and 6 of this Order 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