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HomeMy WebLinkAbout1530 HeintzelmanIn Re: Ronald Heintzelman, Respondent File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Nicholas A. Colafella Mark Volk 08 -047 Order No.1530 7/22/09 8/4/09 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." 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. Heintzelman, 08 -047 Page 2 I. ALLEGATIONS: That Ronald Heintzelman, a public official /public employee in his capacity as Supervisor for North Whitehall Township, Lehigh County, violated Sections 1103(a) and 1105(b)(5) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a) and 1105(b)(5), when he used the authority of his public office for private pecuniary benefit by receiving compensation as the Community Services Coordinator and Facilities Foreman for attending meetings of the Board of Supervisors during his regular working hours; and when he used the office and facilities of North Whitehall Township to conduct his private business, including the use of his Township cellular telephone assigned to him and the Township telephone number to receive and place private business calls; and when he failed to list all sources of income in excess of $1,300.00 on Statements of Financial Interests filed for calendar years 2003 through 2007; and when he participated in actions of the Board of Supervisors to award a contract valued at in excess of $500.00 to his brother, James Heintzelman, without an open and public process, including voting to authorizing [sic] the purchase from his brother. II. FINDINGS: 1. Ronald Heintzelman has served as a North Whitehall Township, Lehigh County, Supervisor since January 2002. a. North Whitehall Township is a Township of the Second Class, governed by a three member Board of Supervisors. b. All three (3) Township Supervisors are employed by the Township on a full - time basis. 2. Heintzelman was employed as the Township's Facilities Foreman from at least 2003 through 2007. a. Heintzelman has been employed as the Community Services Coordinator since January 2008. 3. North Whitehall Township records include job descriptions for the positions of Facilities Foreman and Community Services Coordinator. a. The job description for the Facilities Foreman was created in June of 2002. The position reports directly to the Director of Public Works. The Facilities Foreman's primary function is to be "responsible for the daily operation and maintenance of township buildings and grounds, oversee construction projects and (the) recycling program." Included in the job description are the following major duties and responsibilities: 1. Oversee and coordinate the cleaning, maintenance, equipment, furniture and supplies of the Township facilities. 2. Assist in the planning and scheduling of construction and repair of Township facilities. 3. Manage and coordinate crews, resources, equipment and materials to expedite the projects. 4. Coordinate the efforts between outside contractors and /or township employees. 5. Maintain facilities materials management. 6. Maintain recycling program through hauling, clean up and coordination of activities, along with the processing of data for recycling reports. 7. Responsible for grounds maintenance of Township owned properties. Heintzelman, 08 -047 Page 3 8. Assist Roads Foreman as needed, and substitute for Roads Foreman in his absence. 9. Coordinate parks and facilities needs and schedules with the Director of Community Affairs. 10. Analyze and propose changes in township sponsored public services such as leaf removal, trash collection, etc. 11. Work with grounds and facilities crews as needed. 12. Assist in the decision making with weather conditions affecting the Township. 13. Participate in roadside vegetation management. 14. Serve as liaison to Township Engineer. 15. Schedule trash clean -up after all recreational programs and activities. 16. Respond to concerns and suggestions from Township residents and businesses. 17. Conduct employee evaluations and performance improvement plans. 18. Other duties as assigned. b. The job description for the position of Community Services Coordinator was created on or about January 8, 2008. The primary function of the Community Services Coordinator is to implement policies as established by the Board of Supervisors with responsibility for recycling programs. Major duties and responsibilities for the position include: 1. Participate in roadside vegetation management. Determine sight distance applications and controls, correcting problems and maintaining safe travel conditions. 2. Continue & maintain roadside litter control program. 3. Respond to concerns and suggestions from Township residents and businesses. 4. Analyze and propose changes in township sponsored public services such as leaf removal, trash collection, etc. 5. Maintain recycling program through hauling, clean up and coordination of activities, along with processing data for recycling reports. 6. Establish controls and enhancements at drop off area, including changes in the yard waste program. 7. Improve and maintain commercial recycling program. 8. Perform /supervise operational and administrative duties in the areas of recycling. 9. Explore and establish additional grant applications as required. 10. File recycling reports and grant applications as required. 11. Assist in road or park projects as required. 12. Assist in snow & ice control program. 13. Monitor progress of Land Development & Subdivision projects. 14. Oversee operations of administrative office. 15. Compile and submit cost estimates required for the preparation of the departmental capital and operating budget. 16. Formulate policies and procedures and seek Board of Supervisors approval for carrying out the duties of office functions. 17. Other duties as assigned. 4. Compensation for Supervisors working for the Township on a full -time basis was annually set by the Township's Board of Auditors consistent with the employee handbook. a. Compensation was set at the following hourly rates per position: Heintzelman, 08 -047 Page 4 Year Position 2009 Community Services Coordinator Director of Community Affairs & Recreation Director of Public Works 2008 Community Services Coordinator Director of Community Affairs & Recreation Director of Public Works 2007 Facilities Foreman Director of Community Affairs Director of Public Works 2006 Facilities Foreman Director of Community Affairs Director of Public Works 2005 Facilities Foreman Director of Community Affairs Director of Public Works 2004 Facilities Foreman Director of Community Affairs Director of Public Works 2003 Facilities Foreman Director of Community Affairs Director of Public Works & Recreation & Recreation & Recreation & Recreation & Recreation Rate 25.17 $27.21 $29.41 $25.17 $27.21 $29.41 $24.56 $26.35 $28.28 $23.84 $25.58 $27.39 $22.92 $24.64 $26.34 $22.20 $23.86 $25.51 $21.45 $23.05 $24.65 Supervisor Ronald Heintzelman Terry Stoudt Ronald Stahley Ronald Heintzelman Terry Stoudt Ronald Stahley Ronald Heintzelman Terry Stoudt Ronald Stahley Ronald Heintzelman Terry Stoudt Ronald Stahley Ronald Heintzelman Terry Stoudt Ronald Stahley Ronald Heintzelman Terry Stoudt Ronald Stahley Ronald Heintzelman Terry Stoudt Ronald Stahley b. Other approved compensation included in the employee handbook was medical coverage, life insurance, retirement programs, workers compensation, and paid sick, personal and vacation days. 5. Supervisors may not receive compensation as a working Township employee for the performance of duties as an elected official. 6. Members of the North Whitehall Township Board of Supervisors, including Heintzelman, received annual compensation of approximately $3,250.08 for their service as an elected Township Supervisor. a. The $3,250.08 in annual compensation is to cover all aspects of the position of Supervisor, including attendance at workshop sessions, bid openings, executive sessions, and regular and special meetings of the Board of Supervisors. 7 The North Whitehall Township Board of Supervisors typically held at least one regular and one workshop session meeting per month through September 10, 2008. a. Workshop sessions were generally held during normal working hours of the Supervisors. b. Special meetings, bid openings, and executive session meetings are held on an as needed basis. 8. Since 2003 the North Whitehall Township Board of Supervisors has routinely held bid openings, workshop sessions and emergency meetings during normal working hours of the Supervisors. Heintzelman, 08 -047 Page 5 a. The normal working hours for Supervisors employed by the Township was 7:00 a.m. to 3:30 p.m. b. The practice of holding workshop sessions during the Supervisors' normal working hours ceased after September 10, 2008. 9. Township employees including the working supervisors record their daily start and end times using a time clock. a. Employee time cards are compiled by Secretary /Treasurer Brenda Norder. b. The normal work hours for the Supervisors working on a full -time basis for the Township is Monday through Friday, 7:00 a.m. to 3:30 p.m. with a one - half hour lunch break. 10. Since 2003 Heintzelman routinely attended Township bid openings, special meetings, and other Supervisory related meetings held while simultaneously being compensated as an hourly Township employee. a. Heintzelman did not clock out from his positions as Facilities Foreman and Community Services Coordinator to attend these meetings. b. Heintzelman received both his hourly wage as a Township employee and his wages as a Supervisor when attending these meetings. 11. Since August of 2003, Heintzelman attended at least 101 meetings during normal working hours resulting in compensation of at least $7,773.31. Total meetings and compensation per year is as follows: Calendar Meetings 2003 August on 8 2004 21 2005 21 2006 16 2007 24 2008 through September 11 101 12. The issue of compensation being received by the working supervisors was reviewed by Township Solicitor Lisa A. Young in 2005. This review was done by Young for the Township's Board of Auditors. Young's research included compensation and benefits the Township's working supervisors could receive. 13. On December 28, 2005, Township Solicitor Lisa A. Young, Esq. issued a Solicitor's Opinion to the Board of Auditors regarding "compensation and benefits" to address compensation issues raised regarding the working supervisors. Young's opinion provided information she took from the Second Class Township Code relating to compensation and other benefits for the working supervisors. Solicitor Young made specific reference to her opinion that the Auditors can offer and set compensation including salary, vacation time, sick days and personal days. 14. Township Solicitor Lisa A. Young did not provide the Township Board of Supervisors or Board of Auditors with any advice or opinion on whether a working supervisor could receive compensation as an hourly employee while attending a. Compensation $ 471.91 $1,132.20 $1,661.70 $1,597.28 $1,903.40 $1,006.82 $7,773.31 Heintzelman, 08 -047 Page 6 meetings relating to [his or her] position of supervisor. a. Young's opinion related primarily to health insurance coverage for the supervisors and their spouses. 15. The North Whitehall Township Board of Supervisors discontinued the practice of holding workshop sessions during normal business hours after September 16, 2008. 16. Heintzelman issued check number 14050 in the amount of $10,109.66 to North Whitehall Township on December 1, 2008. a. This check was issued to reimburse the Township for wages he received for attending meetings not consistent with provisions of the Second Class Township Code. b. Heintzelman did not include any documentation identifying how he calculated the amount to reimburse the Township. 17. Heintzelman's $10,109.66 check was part of a $32,459.66 deposit made into a Township account number ending in 8220 at the Neff's National Bank on December 4, 2008. 18. Minutes from the North Whitehall Township Board of Supervisors meeting held on December 3, 2008, included the following recorded discussion on the reimbursement of wages by the Supervisors: a. As a result of discovering that attending daytime workshops, while punched in as an employee, was in conflict of [sic] with the 2 nd Class Township Code, each supervisor remitted a check for repayment of wages earned. Supervisor Heintzelman paid $10,109.66 and Supervisors Stahley and Stoudt each paid $11,000.00 on account until the exact amount is determined. All Supervisors apologized for the conflict noting it was not done intentionally, but as a service to residents and many of the meetings were directly related to their working titles." THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT HEINTZELMAN USED TOWNSHIP EQUIPMENT AND FACILITIES IN FURTHERANCE OF HIS PRIVATE BUSINESS ACTIVITIES SELLING PIONEER HI -BRED INTERNATIONAL, INC. PRODUCTS. 19. Heintzelman has been a Sales Representative for Pioneer International, Inc. since at least 2003. a. Sales representatives for Pioneer International, Inc. have designated sales regions. b. In Pennsylvania, Heintzelman's sales region included North Whitehall Township. c. Heintzelman received commission payments as the result of the sale of Pioneer International, Inc. products. 20. Pioneer International, Inc. maintained contact information for Heintzelman for business purposes. a. Contact information on file as of December 16, 2004, includes a preferred Heintzelman, 08 -047 Page 7 contact number of 610- 799 -3411 ext. 227 with complete contact information of: Sales Provider Name Provider ID Number Provider Phone Preferred Contact Time Ronald Heintzelman EB -1 L- 1254664 fresidence telephone numberl School 610- 799 -3411 ext. 227 21. 610- 799 -3411 is the main phone number for North Whitehall Township. a. 227 was an extension number for Heintzelman's desk within the Township's phone system. 22. One of the informational services provided by Pioneer Hi -Bred International, Inc. is a brochure titled Pioneer Growing Point Magazine. a. This magazine is distributed on a monthly basis to customers in a Pioneer data base. b. Printed on the magazine is contact information for a customer's local sales representative. 23. Pioneer Hi -Bred International, Inc. utilizes third party printing companies for the printing of Growing Point magazines. a. Pioneer provides the printing company with all relevant information including the recipient's name and address and contact information for the customer's local sales representative. 24. Contact information contained on the Growing Point Magazine cover includes the following pre - printed information: Pioneer Growing Point Magazine PRST STD. Pioneer Hi -Bred International U.S. Postage P.O. Box 1150 PAID Johnston, IA 50131 -1150 Pioneer Hi -Bred International, Inc. Exclusively for Pioneer customers, brought to you by: Blank For Sales Rep's Information Blank For Customer's Address Information 25. Contained on the cover of the February 2005 Pioneer Growing Point Magazine was contact information stating "Exclusively for Pioneer customers, brought to you by: Ronald Heintzelman (610) 799 - 3411." a. This information was located directly below the Pioneer Company information as illustrated in the previous Finding. b. (610) 799 -3411 is the main telephone number to the North Whitehall Township Building. c. The February 2005 Pioneer Growing Point Magazine was mailed to customers on or before February 2005. Heintzelman, 08 -047 Page 8 d. Customers within Heintzelman's sales territory received copies with this contact information. 26. Pioneer provided the printing company it utilized for the Growing Point Magazine with the contact information it had for Heintzelman including the Township's phone number. 27. Around April 2005, Township Solicitor Lisa Young was provided with a copy of the February 2005 Pioneer Growing Point Magazine which was anonymously sent to the Township's Board of Auditors. a. The copy that Solicitor Young was given included the Township's main phone number under Ronald Heintzelman's name. b. Solicitor Young did not authorize Heintzelman to use the Township phone number as a point of contact for his Pioneer sales. 28. Solicitor Young contacted Jill Weddell of Pioneer Seed Company to determine how the Township's phone number came to be on the brochure. a. Jill Weddell was the Eastern Sales Services Specialist with Pioneer at the time. b. Young contacted Weddell in her official capacity as North Whitehall Township Solicitor. 29. Weddell provided Solicitor Young with a series of Pioneer internal e-mail exchanges occurring between April 22, 2005, and April 25, 2005, resulting in the Township's phone number being removed as Heintzelman's point of contact. a. Excerpts from the e -mail exchange included the following relevant information: On April 22, 2005, Weddell sends an email message to Susan Smerick and Marcy Kuhn with Ron Heintzelman and Dennis Manbeck copied [on] it. Smerick is identified in a later email as being an Administrative Coordinator for the Eastern Region in Mt. Joy, PA. Marcy Kuhn and Dennis Manbeck's positions are not identified. In Jill Weddell's April 22, 2005, mail she writes, "I got a call from rep Ron Heintzelman, 1254664. This is the 2 time he's called about this same thing. remember sending an e -mail the first time about this, and assumed it had been corrected, but it hasn't. I'm not sure exactly who would take care of this, but please forward it on to whomever does. His phone number is appearing incorrectly on the Growing Point Magazine. It has his work phone number on there and it's getting him in trouble at work. Please have it changed to his home number ASAP and let me know when this is done. It should be [residence telephone number] ". A follow up email resolving the matter was sent by Julia Morrissey to Marcy Kuhn and Jerry Harrington with copies to Jill Weddell and Susan Smerick on April 25, 2005. Morrissey offered the following explanation for the problem: "Because most sales reps have a home phone dedicated to their sales operation versus their personal home phone number, we have always used their "work" phone number for the ink - jetting on the magazine. I've had two different people check into this and I'm not able to tell when the Heintzelman, 08 -047 Page 9 information was updated, however, both Ron's home and work number now show the phone number listed below." ([residence telephone number]) 30. As a result of Solicitor Young's inquiry to Weddell, Pioneer took steps to remove the Township's phone number as Heintzelman's point of contact on Pioneer Company records. a. The Township's phone number was deleted from Pioneer Company records by April 25, 2005. 31. The North Whitehall Township phone number was Heintzelman's stated primary point of contact with Pioneer from at least December 16, 2004, until approximately April 25, 2005. 32. On April 29, 2005, Solicitor Young provided a written Solicitor's Opinion based on the fact scenario detailed in the previous Findings. a. b. c. Based on the information available to her, Young concluded that Heintzelman did not violate the State Ethics Act. She based her opinion on information contained in the above referenced email along with her conversation with Jill Weddell. In Young's Solicitor's Opinion dated April 29, 2005, she concluded that: "I am of the firm belief that this was an error on behalf of Pioneer and that the number appeared incorrectly through no fault of Mr. Heintzelman. Furthermore, this is reasonable in Tight of other circumstances including Mr. Heintzelman's spouse being available to receive telephone calls at his home telephone number, Mr. Heintzelman's general lack of availability at the municipal telephone number because of his outdoor and road work responsibilities and Mr. Heintzelman's lack of authorization to permit Pioneer to use the municipal telephone number for such purposes. Additionally, the company has personally assured me that the error has been corrected and that they will only print Mr. Heintzelman's home telephone number in the future." 33. Heintzelman, in his official capacity as a North Whitehall Township Supervisor, had a Township issued cellular phone. a. Nextel was the Township's cellular phone carrier during 2007 -08. b. Account number 182180727 was issued to the Township. c. Cellular number 610 - 972 -0445 was for the phone used by Heintzelman. 34. Heintzelman did not receive approval from the North Whitehall Township Board of Auditors to use the phone for personal business. a. The Township's Board of Supervisors also did not take any action authorizing the personal use. b. Township Solicitor Lisa Young did not provide a Solicitor Opinion or Advice to Heintzelman on the personal use. 35. The Township's rate plan provided was a National Team Share 400 with caller id and enhanced voice mail. Heintzelman, 08 -047 Page 10 a. This plan was shared by other Township Supervisors and employees. 36. Heintzelman provided his Township cellular phone number to family, friends, and Pioneer customers. 37. Heintzelman's personal use of his Township issued cellular phone did not result in excess airtime charges for the Township. 38. During 2007 and /or 2008, twenty -nine (29) calls totaling 52 minutes and thirty - seven (37) calls totaling 65 minutes were related to customers who purchased Pioneer products through Heintzelman or were connected to Pioneer business. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT HEINTZELMAN PARTICIPATED IN ACTIONS OF THE BOARD OF SUPERVISORS TO AWARD A CONTRACT VALUED IN EXCESS OF $500.00 TO HIS BROTHER FOR THE SALE OF A SPRAYER. 39. James Heintzelman, [residence address] is the brother of the Respondent, Ronald J. Heintzelman. a. James Heintzelman is in the farming business. 40. In addition to James Heintzelman's farming activities, he buys and sells used farm equipment. 41. North Whitehall Township maintains athletic fields and open space for community use. a. The general care and maintenance of the Township's parks and athletic fields fell under the supervision of Community Affairs and Recreation Director Terry P. Stoudt. 42. North Whitehall Township owns at least nine (9) tracts of land, which are intended to be preserved as open space or used for recreational purposes. a. These properties include multi - purpose baseball /softball /soccer fields, basketball courts, fitness trails, playgrounds and open space. 43. In or around the Thanksgiving 2008 holiday, James Heintzelman purchased a used sprayer, pump, motor, and related accessories at auction. a. At the time of purchase, James Heintzelman believed that the unit was fully operational. b. James Heintzelman had to replace the pump on the unit for resale. 44. Shortly after acquiring the unit, James Heintzelman demonstrated it for North Whitehall Township Supervisor Ronald Stahley. a. James Heintzelman learned of the problem with the pump while demonstrating it for Supervisor Ronald Stahley. b. Stahley was the Township's Public Works Director at the time. 45. James Heintzelman recalled Stahley did not give him an immediate answer on whether the Township was interested in purchasing the sprayer. Heintzelman, 08 -047 Page 11 a. James Heintzelman had a follow -up conversation with his brother, Respondent Ronald Heintzelman, in or around January 2009 inquiring as to whether the Township was interested in purchasing the sprayer. b. Ronald Heintzelman instructed James Heintzelman to submit a proposal to the Township. 46. On January 26, 2009, James Heintzelman submitted a one (1) page proposal to North Whitehall Township totaling $1,400.00 for the sale of used equipment. a. Equipment for sale in the proposal consisted of the following: 1. King Industries 3 point hitch tractor and truck mount sprayer with 100 gallon poly tank and aluminum frame. 2. 19 foot folding, three (3) section boom with control valves. 3. Hose reel w /100 ft hose and handgun. 4. 3 hp Honda engine and Hypro 7560 roller pump. b. Similar sprayers for sale online have an approximate retail value in excess of $2,500.00 new. 47. James Heintzelman provided a 2008 equipment catalog to the State Ethics Commission on June 3, 2009, documenting a new comparable sprayer and accessories costing approximately $3,636.00 delivered. a. James Heintzelman contends that his equipment was only used approximately three times. 48. North Whitehall Township did not solicit bids, quotes or proposals for a used sprayer with accessories. a. James Heintzelman's January 26, 2009, proposal was the only proposal received by the Township. 49. The North Whitehall Township Board of Supervisors took action during its February 4, 2009, meeting to approve the purchase of the used sprayer from James Heintzelman. a. Respondent Ronald Heintzelman participated in the discussion and official action taken by the Board on this purchase. 50. Minutes from the North Whitehall Township Board of Supervisors meeting held on February 4, 2009, include the following recorded action on the sprayer purchase: a. Purchase of used sprayer "Upon motion by Terry P. Stoudt, seconded by Ronald E. Stahley, the Board approved the budgeted purchase of a used sprayer from James Heintzelman for the price of $1,400.00. Roll call: Terry P. Stoudt -yes; Ronald E. Stahley- yes; Ronald J. Heintzelman -yes. There were no public comments on this item." 51. North Whitehall Township issued two (2) checks totaling $1,400.00 to James Heintzelman Farm on February 5, 2009, in payment of the sprayer. Heintzelman, 08 -047 Page 12 a. Township Recreation fund check number 307, in the amount of $700.00 issued to James Heintzelman Farm was dated February 5, 2009. 1. This check was signed by Supervisors Ronald Stahley and Terry Stoudt along with Secretary /Treasurer Brenda Norder. 2. Written in the memo portion of the check was used spray (1/2)." 3. This check was deposited by James Heintzelman into an account for Roth Equipment. aa. James Heintzelman asserts that he utilized these funds as payment on an equipment account. b. Township Road Machinery fund check number 234 in the amount of $700.00, issued to James Heintzelman Farm, was dated February 5, 2009. 1. This check was signed by Supervisors Ronald Stahley and Terry Stoudt along with Secretary /Treasurer Brenda Norder. 2. Written in the memo portion of the check was used sprayer (1/2)." 3. This check was cashed by James Heintzelman. 52. On February 5, 2009, correspondence was sent on Township stationery to James Heintzelman informing him that the Board [of Supervisors] unanimously approved the purchase of your sprayer (used) at the price of $1,400.00." a. Enclosed with the correspondence were Township checks numbers 234 and 307 detailed in the previous Finding. b. This correspondence was sent under the signature of Brenda Norder, Secretary /Treasurer. c. The unanimous approval referenced included approval by Respondent Ronald Heintzelman. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT HEINTZELMAN FAILED TO DISCLOSE ALL SOURCES OF INCOME IN EXCESS OF $1,300.00 ON STATEMENT OF FINANCIAL INTERESTS FORMS FILED FOR CALENDAR YEARS 2003 THROUGH 2007. 53. Heintzelman in his official capacity as a North Whitehall Township Supervisor was annually required to file a Statement of Financial Interests form by May 1 containing information for the prior calendar year. a. Around January of each year, Township Secretary Brenda Norder provided Heintzelman with a blank Statement of Financial Interests form to complete. b. Blank Statement of Financial Interests forms include an instruction page. 54. Statement of Financial Interests Forms on file with North Whitehall Township include the following filings for Heintzelman covering calendar years 2003 through 2007: a. Calendar Year: 2007 Heintzelman, 08 -047 Page 13 Filed: 04/03/08 on SEC Form SEC -1 REV. 01/08 Position: Township Supervisor Occupation: Township Supervisor Creditors: None Direct /indirect income: Greenleaf Farms; Pioneer Hi -Bred Int'I All other financial interests: None b. Calendar Year: 2006 Filed: 01/17/07 on SEC Form SEC -1 REV. 01/07 Position: Supervisor Occupation: Supervisor Creditors: None Direct /indirect income: Greenleaf Farms; Pioneer Hi -Bred Int. All other financial interests: None c. Calendar Year: 2006 Filed: 03/05/07 on SEC Form SEC -1 REV. 01/07 Position: Township Supervisor /candidate Occupation: Township Supervisor Creditors: None Direct /indirect income: Greenleaf Farms; Pioneer Hi -Bred Office, Directorship or Employment in any business: Schnecksville Fire Company, Trustee; Kempton Rec. Community Center, Director All other financial interests: None d. Calendar Year: 2005 Filed: 02/18/06 on SEC Form SEC -1 REV. 01/06 Position: Supervisor Occupation: Supervisor Creditors: None Direct /indirect income: None All other financial interests: None e. Calendar Year: 2004 Filed: 02/27/05 on SEC Form SEC -1 REV. 01/05 Position: Supervisor Occupation: Supervisor Creditors: None Direct /indirect income: None All other financial interests: None f. Calendar Year: 2003 Filed: 03/22/04 on SEC Form SEC -1 REV. 01/04 Position: Township Supervisor Occupation: Supervisor /farmer Creditors: None Direct /indirect income: Greenleaf Farms All other financial interests: None 55. Heintzelman failed to list direct /indirect income in excess of $1,300.00 he received from Pioneer Hi -Bred International, Inc. on Statement of Financial Interests forms filed for the 2003, 2004, and 2005 calendar years. 56. Business records of Pioneer Hi -Bred International, Inc. include 1099 Miscellaneous income forms indicate [sic] that Heintzelman received in excess of $1,300.00 in income in each year from 2003 -2007 inclusive. Heintzelman, 08 -047 Page 14 57. Heintzelman failed to list North Whitehall Township as a source of income on SFI's he filed for calendar years 2003 through 2007. a. Heintzelman received wages in excess of $1,300.00 annually as an employee of and Supervisor for the Township, since 2003. 58. Heintzelman failed to list direct /indirect income in excess of $1,300.00 from Greenleaf Farms on Statement of Financial Interests forms filed for the 2004 and 2005 calendar years. a. Heintzelman included this income on federal income tax forms 1040 Schedule F, profit or loss from farming for calendar years 2004 and 2005. b. Heintzelman's 2004 Schedule F, profit or loss from farming included gross income in excess of $1,300.00. c. Heintzelman's 2005 Schedule F, profit or loss from farming included gross income in excess of $1,300.00. 59. Heintzelman provided copies of amended Statement of Financial Interests forms filed by Heintzelman for calendar years 2002 through 2007. These filings were all done on SFI's with a revision date of SEC -1 REV. 01/08. Heintzelman's amended SFI forms included the following information: a. Calendar Year: 2002 Filed: 12/03/08 on SEC form REV 01/08 Position: No. Whitehall Twp. Supervisor Creditors: None Direct /indirect income: No. Whitehall Twp (Supervisor & employee); Self employed farmer; Pioneer Hi -Bred International All other financial interests: None b. Calendar Year: 2003 Filed: Undated on SEC form REV 01/08 Position: No. Whitehall Twp. Supervisor Creditors: None Direct /indirect income: No. Whitehall Twp (Supervisor & employee); Self employed farmer; Pioneer Hi -Bred International All other financial interests: None c. Calendar Year: 2004 Filed: 12/03/08 on SEC form REV 01/08 Position: No. Whitehall Twp. Supervisor Creditors: None Direct /indirect income: No. Whitehall Twp (Supervisor & employee); Self employed farmer; Pioneer Hi -Bred International All other financial interests: None d. Calendar Year: 2005 Filed: 12/03/08 on SEC form REV 01/08 Position: No. Whitehall Twp. Supervisor Creditors: None Direct /indirect income: No. Whitehall Twp (Supervisor & employee); Self employed farmer; Pioneer Hi -Bred International All other financial interests: None e. Calendar Year: 2006 Heintzelman, 08 -047 Page 15 65 Pa.C.S. § 1103(a). Filed: 12/03/08 on SEC form REV 01/08 Position: No. Whitehall Twp. Supervisor Creditors: None Direct /indirect income: No. Whitehall Twp (Supervisor & employee); Self employed farmer; Pioneer Hi -Bred International Office, Directorship or employment in any business: Community Fire Co. #1 No. Whitehall, Trustee; Kempton Rec. Community Center, Director; County Fair, Director. All other financial interests: None f. Calendar Year: 2007 Filed: 12/03/08 on SEC form REV 01/08 Position: No. Whitehall Twp. Supervisor, Supervisor Candidate Creditors: M & T Credit Services, Baltimore, MD. 11.85% Direct /indirect income: No. Whitehall Twp (Supervisor & employee); Self employed farmer; Pioneer Hi -Bred International Office, Directorship or employment in any business: Community Fire Co. #1 No. Whitehall, Trustee; Kempton Rec. Community Center, Director; County Fair, Director. All other financial interests: None 60. Heintzelman filed an amended Statement of Financial Interests form for calendar year 2002 although no specific allegation was made for that calendar year. III. DISCUSSION: As a Township Supervisor for North Whitehall Township ( "Township "), Lehigh County, since January 2002, Respondent Ronald Heintzelman (hereinafter also referred to as "Respondent," "Respondent Heintzelman," and "Heintzelman ") 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 Heintzelman violated Sections 1103(a) and 1105(b)(5) of the Ethics Act: (1) when he, as a Township Supervisor, used the authority of his public office for private pecuniary benefit by receiving compensation as the Community Services Coordinator and Facilities Foreman for attending meetings of the Board of Supervisors ( "Board ") during his regular working hours; (2) when he used the office and facilities of the Township to conduct his private business, including the use of his Township cellular telephone assigned to him and the Township telephone number to receive and place private business calls; (3) when he failed to list all sources of income in excess of $1,300.00 on Statements of Financial Interests ( "SFIs ") filed for calendar years 2003 through 2007; and (4) when he participated in actions of the Board to award a contract valued at in excess of $500.00 to his brother, James Heintzelman, without an open and public process, including voting to authorize the purchase from his brother. 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. The term "conflict of interest" is defined in the Ethics Act as follows: Heintzelman, 08 -047 Page 16 § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa. C. S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1105(b) of the Ethics Act and its subsections detail the financial disclosure that a person required to file the SFI form must provide. 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 SFI 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 has served as a Township Supervisor since January 2002. All three Township Supervisors are employed by the Township on a full -time basis. Respondent was employed as the Township's Facilities Foreman from at least 2003 through 2007. Respondent has been employed as the Township's Community Services Coordinator since January 2008. The Township Auditors have set the hourly rates of compensation for the Township Supervisors as Township employees as detailed in Fact Finding 4 a. Each Township Supervisor, including Respondent, has received annual compensation of approximately $3,250.08 for service as an elected Township Supervisor. Since 2003 Respondent routinely attended Township bid openings, special meetings, and other Supervisor related meetings while simultaneously being compensated as an hourly Township employee. Respondent did not clock out from his positions as Township Facilities Foreman and Township Community Services Coordinator to attend these meetings. Since August 2003 Respondent attended at least 101 meetings during his regular working hours, for which he received compensation as a Township employee of at least $7,773.31. Respondent issued check number 14050 in the amount of $10,109.66 to the Heintzelman, 08 -047 Page 17 Township on December 1, 2008, to reimburse the Township for wages he received as a Township employee for attending meetings as a Township Supervisor. Respondent's check in the amount of $10,109.66 was part of a $32,459.66 deposit made into a Township account on December 4, 2008. Minutes from the Board meeting held on December 3, 2008, included the following recorded discussion regarding the reimbursement of wages by the Supervisors: As a result of discovering that attending daytime workshops while punched in as an employee, was a conflict with the 2" Class Township Code, each supervisor remitted a check for repayment of wages earned. Supervisor Heintzelman paid $10,109.66 and Supervisors Stahley and Stoudt each paid $11,000.00 on account until the exact amount is determined. All Supervisors apologized for the conflict noting it was not done intentionally, but as a service to residents and many of the meetings were directly related to their working titles. Fact Finding 18 a. In a private capacity, Respondent has been a Sales Representative for Pioneer International, Inc. ( "Pioneer ") since at least 2003. Sales representatives for Pioneer have designated sales regions. Respondent's sales region included the Township. Respondent received commission payments as the result of the sale of Pioneer products. From at least December 16, 2004, until approximately April 25, 2005, the Township's telephone number, (610) 799 -3411, was listed in Pioneer records as the primary point of contact for Respondent. Pioneer distributes to its customers a monthly magazine titled Pioneer Growing Point Magazine. Printed on the magazine is contact information for a customer's local sales representative. Contained on the cover of the February 2005 Pioneer Growing Point Magazine was contact information stating "Exclusively for Pioneer customers, brought to you by: Ronald Heintzelman (610) 799 - 3411." In or before February 2005, customers within Respondent's sales territory received copies of the magazine with this contact information. Pioneer had provided the contact information that it had for Respondent - -which included the Township's telephone number - -to the printing company Pioneer utilized for the magazine. Around April 2005, Township Solicitor Lisa Young was provided with a copy of the February 2005 Pioneer Growing Point Magazine. As a result of an inquiry by Solicitor Young, Pioneer took steps to remove the Township's telephone number as Respondent's point of contact in Pioneer company records. The Township's telephone number was deleted from Pioneer company records by April 25, 2005. As a Township Supervisor, Respondent had a Township issued cellular phone. Respondent did not have approval to use the Township issued cellular phone for personal business. Respondent provided his Township cellular phone number to family, friends, and Pioneer customers. During 2007 and /or 2008, twenty -nine (29) calls totaling 52 minutes and thirty -seven (37) calls totaling 65 minutes were related to customers who purchased Pioneer products through Respondent or were connected to Pioneer business. Respondent's personal use of his Township issued cellular phone did not result in excess airtime charges for the Township. Heintzelman, 08 -047 Page 18 Respondent has a brother named James Heintzelman. James Heintzelman buys and sells used farm equipment. In the fall of 2008, James Heintzelman purchased a used sprayer, pump, motor, and related accessories. At the time of purchase, James Heintzelman believed that the unit was fully operational. However, he had to replace the pump on the unit for resale. Shortly after acquiring the unit, James Heintzelman demonstrated it for Township Supervisor Ronald Stahley ( "Stahley "), who was the Township's Public Works Director. James Heintzelman learned of the problem with the pump while demonstrating it for Stahley. In or around January 2009 James Heintzelman had a follow -up conversation with Respondent, inquiring as to whether the Township was interested in purchasing the sprayer. Respondent instructed James Heintzelman to submit a proposal to the Township. On January 26, 2009, James Heintzelman submitted a proposal to the Township for the sale of used equipment totaling $1,400.00 as detailed at Fact Findings 46 -46 a. Similar sprayers have an approximate retail value in excess of $2,500.00 new. James Heintzelman contends that his equipment was only used approximately three times. The Township did not solicit bids, quotes or proposals for a used sprayer with accessories. James Heintzelman's January 26, 2009, proposal was the only proposal received by the Township. The Board took action during its February 4, 2009, meeting to approve the purchase of the used sprayer from James Heintzelman. Respondent participated in the discussion and official action taken by the Board on this purchase. Per the minutes of the meeting, Respondent participated in the 3 -0 vote of the Board approving the purchase. On February 5, 2009, the Township issued two (2) checks totaling $1,400.00 to James Heintzelman Farm, in payment of the sprayer. Respondent did not sign these checks. With regard to Respondent's SFI forms, the parties have stipulated that Respondent failed to list certain sources of income in excess of $1,300.00 on his SFIs filed for calendar years 2003 through 2007. Respondent failed to list Pioneer as a direct /indirect source of income on his SFI forms filed for the 2003, 2004, and 2005 calendar years. Pioneer business records indicate that Respondent received in excess of $1,300.00 of income in each year from 2003 through 2007 inclusive. Respondent received wages in excess of $1,300.00 from the Township annually since 2003, but Respondent did not list the Township as a source of income on his SFIs for calendar years 2003 through 2007. Respondent failed to disclose the source of direct /indirect income from Greenleaf Farms on his SFI forms filed for the 2004 and 2005 calendar years. Respondent's tax forms reported gross income in excess of $1,300.00 from farming in each of those calendar years. Respondent has provided copies of amended SFIs filed by Respondent for calendar years 2002 through 2007. Respondent's amended SFI forms for calendar years 2003, 2004, and 2005 all list Pioneer as a direct /indirect source of income. Respondent's amended SFI forms for calendar years 2003, 2004, 2005, 2006, and 2007 all list the Heintzelman, 08 -047 Page 19 Township as a direct /indirect source of income. Respondent's amended SFI forms for calendar years 2004 and 2005 both list "Self employed farmer" as a direct /indirect source of income. 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 Heintzelman's receipt of compensation as Community Services Coordinator and Facilities Foreman for attending meetings of the Board of Supervisors during his regular working hours. b. That an unintentional violation of Section 1105(b)(5) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1105(b)(5), occurred when Heintzelman failed to list all sources of income in excess of $1,300.00 on his Statements of Financial Interests form[s] for calendar years 2003 through 2007. c. That no violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a), occurred as to Heintzelman's use of the cellular telephone assigned to him by the Township and the Township telephone number to receive and place private business calls as any gain was de minimis. d. That a technical violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a), [occurred] in relation to Heintzelman's actions on the Board of Supervisors to purchase a sprayer valued in excess of $500.00 from his brother, James Heintzelman, without an open and public process. 4. The Investigative Division of the State Ethics Commission will recommend that no restitution be paid as Heintzelman has repaid to North Whitehall Township an amount in excess of the amount which was alleged as his private pecuniary gain. 5. The Investigative Division of the State Ethics Commission will recommend that no amended Statement of Financial Interests forms for calendar years 2003 through 2007 need be filed as Heintzelman has already filed amended form[s] with North Whitehall Township. 6. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no recommendations to any law enforcement or other authority to take action in this matter. Heintzelman, 08 -047 Page 20 Consent Agreement, at 2. In considering the Consent Agreement, we 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 receipt of compensation as Township Community Services Coordinator and Facilities Foreman for attending meetings of the Board during his regular working hours. But for the fact that Respondent was a Township Supervisor, he would not have been in a position to claim hours and receive wages as the Township Community Services Coordinator and Facilities Foreman for duties that were related to his position as a Township Supervisor. Such uses of authority of office resulted in a private pecuniary benefit to Respondent consisting of unauthorized compensation as a Township employee of at least $7,773.31. Although intent is not a requisite element of a violation of the Ethics Act, see, Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Commw. Ct. 1987), it would appear that the aforesaid violation was unintentional. Accordingly, we hold that an unintentional violation of Section 1103(a) of the Ethics Act occurred in relation to Respondent's receipt of compensation as Township Community Services Coordinator and Facilities Foreman for attending meetings of the Board during his regular working hours. See, R.H. v. State Ethics Commission, 673 A.2d 1004 (Pa. Commw. Ct. 1996); Mendez, Order 1481; Hahn, Order 1480; Harton, Order 1421; Seamans, Order 1411; Johnson, Order 1187. We also accept the recommendation of the parties for a finding that an unintentional violation of Section 1105(b)(5) of the Ethics Act occurred when Respondent failed to list all sources of income in excess of $1,300.00 on his SFI forms for calendar years 2003 through 2007. The parties have stipulated that Respondent failed to list all such sources of income on the form, but that Respondent has since filed amended forms to address such deficiencies. We hold that an unintentional violation of Section 1105(b)(5) of the Ethics Act occurred when Respondent failed to list all sources of income in excess of $1,300.00 on his SFI forms for calendar years 2003 through 2007. Based upon the Stipulated Findings, we agree with the parties and therefore hold that no violation of Section 1103(a) of the Ethics Act occurred as to Respondent's use of the cellular telephone assigned to him by the Township and the Township telephone number to receive and place private business calls as any gain was de minimis. The parties have recommended a finding that a technical violation of Section 1103(a) of the Ethics Act occurred in relation to Respondent's actions on the Board to purchase a sprayer valued in excess of $500.00 from his brother, James Heintzelman, without an open and public process. Respondent used the authority of his public office as a Township Supervisor in or around January 2009 when he discussed the potential purchase with his brother, James Heintzelman, and instructed James Heintzelman to submit a proposal to the Township. Respondent further used the authority of his public office at the February 4, 2009, Board meeting when he participated in the discussion and official action taken by the Board regarding the purchase, and specifically participated in the 3 -0 vote of the Board approving the purchase. The parties have stipulated that the Township did not solicit bids, quotes or proposals for a used sprayer with accessories. James Heintzelman's January 26, 2009, Heintzelman, 08 -047 Page 21 proposal was the only proposal received by the Township. Although the parties have agreed that the purchase was made without an open and public process, we need not address that particular point as it is not needed for the finding of a violation of Section 1103(a), and Section 1103(f) of the Ethics Act is not before us in this case. We hold that a technical violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. §1103(a), occurred in relation to Respondent's actions on the Board to purchase a sprayer valued in excess of $500.00 from his brother, James Heintzelman. The Investigative Division has recommended that no restitution be ordered because Respondent has already repaid the Township an amount in excess of the amount alleged as his private pecuniary gain. The Investigative Division has further recommended that there be no requirement for the filing of amended SFI forms for calendar years 2003 through 2007 as Respondent has already filed such amended forms with the Township. 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. In that Respondent has already repaid the Township an amount in excess of the amount alleged as his private pecuniary gain and has already filed with the Township amended SFIs for calendar years 2003 through 2007, we will take no further action in this case, which is closed. IV. CONCLUSIONS OF LAW: 1. As a Township Supervisor for North Whitehall Township ( "Township "), Lehigh County, since January 2002, Respondent Ronald Heintzelman ( "Heintzelman ") 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. Heintzelman unintentionally violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation to Heintzelman's receipt of compensation as Township Community Services Coordinator and Facilities Foreman for attending meetings of the Township Board of Supervisors ( "Board ") during his regular working hours. 3. An unintentional violation of Section 1105(b)(5) of the Ethics Act, 65 Pa.C.S. § 1105(b)(5), occurred when Heintzelman failed to list all sources of income in excess of $1,300.00 on his Statement of Financial Interests forms for calendar years 2003 through 2007. 4. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred as to Heintzelman's use of the cellular telephone assigned to him by the Township and the Township telephone number to receive and place private business calls as any gain was de minimis. 5. A technical violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Heintzelman's actions on the Board to purchase a sprayer valued in excess of $500.00 from his brother, James Heintzelman. In Re: Ronald Heintzelman, Respondent ORDER NO. 1530 File Docket: 08 -047 Date Decided: 7/22/09 Date Mailed: 8/4/09 1 As a Township Supervisor for North Whitehall Township ( "Township "), Ronald Heintzelman ( "Heintzelman ") 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 receipt of compensation as Township Community Services Coordinator and Facilities Foreman for attending meetings of the Township Board of Supervisors ( "Board ") during his regular working hours. 2. An unintentional violation of Section 1105(b)(5) of the Ethics Act, 65 Pa.C.S. § 1105(b)(5), occurred when Heintzelman failed to list all sources of income in excess of $1,300.00 on his Statement of Financial Interests ( "SFI ") forms for calendar years 2003 through 2007. 3. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred as to Heintzelman's use of the cellular telephone assigned to him by the Township and the Township telephone number to receive and place private business calls as any gain was de minimis. 4. A technical violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Heintzelman's actions on the Board to purchase a sprayer valued in excess of $500.00 from his brother, James Heintzelman. 5. In that Heintzelman has already repaid the Township an amount in excess of the amount alleged as his private pecuniary gain and has already filed with the Township amended SFIs for calendar years 2003 through 2007, this Commission will take no further action in this case, which is closed. BY THE COMMISSION, Louis W. Fryman, Chair