HomeMy WebLinkAbout1521 ElliottIn Re: G. Warren Elliott,
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 -009
Order No. 1521
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.
Elliott, 08 -009
Page 2
I. ALLEGATIONS:
That G. Warren Elliott, a public official /public employee in his capacity as a
Commissioner for Franklin County, violated Section 1103(a) of the State Ethics Act (Act 93
of 1998), 65 Pa.C.S. § 1103(a), when he participated in actions of the Board of
Commissioners to approve payments issued to General Code Publishers, a business with
which he is associated; and when he participated in actions of the Board of Commissioners
to enter into contracts with Farmers and Merchants Bank at a time when he was serving on
the bank's Board of Directors.
II. FINDINGS:
1. G. Warren Elliott served as a Franklin County Commissioner from approximately
1996 until January 2008.
a. Elliott also served as a Franklin County Commissioner for one (1) year in
1987 to fill a vacant position.
1. Elliott accepted the position with the agreement that he would not run
for Commissioner following the end of his one (1) year appointment.
b. The Franklin County Board of Commissioners is a three (3) member Board.
2. Donna Elliott is the wife of G. Warren Elliott.
a. The Elliott's home address is [residence address].
3. Professionally, G. Warren Elliott has been employed by General Code Publishers
continuously since approximately 1981.
a. Elliott's current position with General Code is Senior Sales Representative.
b. Elliott's current job duties are to promote and sell products and services
offered by General Code, including codification, software and document
management software such as Laserfiche.
c. Elliott's sales territory includes the entire State of Pennsylvania, with the
exception of Franklin County.
1. Franklin County was removed from Elliott's sales territory in 2001,
due to his serving as a Franklin County Commissioner.
aa. No business was conducted by General Code in Franklin
County, Pennsylvania prior to 2001.
2. Franklin County was eliminated as a sales territory for Elliott by
Nancy Kitt and Lyle Kitt, owners of General Code, over concerns of a
potential conflict of interests.
3. Elliott has handled other territories throughout the years [including],
but not limited to, parts of the State of Maryland.
4. G. Warren Elliott is paid a monthly draw which offsets any commission earned on a
monthly basis.
a. Elliott did not receive any commissions for the Franklin County account as
the commission was maintained as income for General Code, paid to
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Elizabeth Mistretta, or paid as a bonus to Sandy Brennan.
b. Elliott has no ownership interests in General Code.
5. Donna Elliott is also employed by General Code.
a. Donna Elliott has worked for General Code in an official and unofficial
capacity since 1987.
b. Donna Elliott began assisting her husband, G. Warren Elliott, with his
General Code responsibilities in 1987.
1. Donna Elliott was not compensated by General Code in any way for
her assistance to her husband in 1987.
6. Donna Elliott renewed her assistance with her husband's General Code
responsibilities in 1996 when he again became a Franklin County Commissioner.
a. Donna Elliott assisted her husband with client calls and other General Code
related job duties that he could not personally handle due to his position as a
Commissioner.
b. Donna Elliott's duties also consisted of assisting the home office in
Rochester, New York, with client contact as needed.
c. Donna Elliott was not compensated by General Code for her assistance to
her husband in 1987, nor from 1996 through 2007.
7 Donna Elliott also served as a Research Analyst for General Code from October
1997, through February 2008.
a. Donna Elliott conducted codification research for General Code in which she
would obtain all ordinances, minutes, and other municipal records.
1. The research done by Donna Elliott was limited to municipalities
within the Commonwealth of Pennsylvania.
2. Ordinances, Resolutions, and other official records are then
organized and maintained for the client[s], which are local
municipalities.
b. Donna Elliott was paid a flat fee for each research project she conducted for
General Code.
c. The amount Donna Elliott was compensated varied and was based upon the
amount of hours expended and the difficulty of each assignment.
8. Donna Elliott was hired as a full -time employee of General Code in March 2008 as
a Marketing /Customer Service employee.
a. Donna Elliott is currently paid a base salary, but receives bonuses based on
General Code's performance.
9. General Code Publishers has been in existence as a business since 1962.
a. General Code offers codification and document management services
including: municipal codes and manuals; supplementation service; electronic
Elliott, 08 -009
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and Internet access to codes; records management solutions; and building,
planning and zoning software.
b. General Code provides products and services to over 2,600 municipal
governments, businesses, and educational institutions in approximately
thirty -two (32) states, plus various entities in Canada.
1. General Code has approximately 900 Municipal and County clients
within the Commonwealth of Pennsylvania.
10. General Code's home office is located at 72 Hinchey Road, Rochester, NY 14624.
a. The phone number for the home office is 800 - 836 -8834.
11. Articles of Incorporation on file with Pennsylvania Department of State reflect that
General Code, LLC was incorporated on January 25, 2007, with its registered office
as 822 Shatzer Road, Chambersburg, PA 17201.
a. The State of business for this company is New York.
b. G. Warren Elliott's address is [residence address].
c. No officers are listed for this business with the Department of State.
d. The Articles of Incorporation were executed by Gary M. Domenico who
signed Incorporation Documents as the CEO and Sole Proprietor of General
Code.
12. General Code Publishers began business as a Municipal Codifer in 1962.
a. Amongst other products, General Code offers Laserfiche for sale to [its]
municipal /local government customers.
1. Laserfiche® is a document imaging system that allows users to store
and instantly retrieve records.
13. General Code currently employs nine (9) regional sales representatives covering
seventeen (17) primary regions, in seventeen (17) states.
a. G. Warren Elliott is the only General Code sales representative responsible
for covering the entire State of Pennsylvania.
b. In light of an inherent conflict of interest as a result of Elliott's public position
as a Franklin County Commissioner, Elizabeth Mistretta was ultimately
designated as the sales representative for Franklin County, Pennsylvania.
c. At the time Mistretta was assigned Franklin County, she was employed by
General Code as the Account Representative assigned to the Pennsylvania
territory.
14. General Code is an approved Pennsylvania COSTARS Contractor as designated
by the Pennsylvania Department of General Services.
a. General Code has been on the COSTARS Contract since January 25, 2006.
b. The main contact address listed on the COSTARS Contract is 72 Hinchey
Road, Rochester, NY 14624.
Elliott, 08 -009
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1 Lyle Kitt is listed as the primary point of contact for General Code
Publishers.
2. Elizabeth Mistretta is listed as the secondary point of contact for
General Code Publishers.
3. G. Warren Elliott is listed as the point of contact for purchase orders.
aa. Elliott's contact phone number is listed as 717 - 264 -4696.
bb. [An address for Elliott] is also listed as a point of contact.
15. COSTARS is a new approach to the Cooperative Purchasing Program which
encourages the formulation of interactive partnership[s] between local public
procurement units and the Commonwealth.
a. COSTARS is to be used by registered local municipalities only.
1. The Government of Franklin County, Pennsylvania, is a registered
local municipality with the ability to purchase products and services
through COSTARS.
b. COSTARS contracts differ from Statewide Contracts; [while] Statewide
Contracts are available to the entire Commonwealth, COSTARS Contracts
are only available to registered municipalities.
1. Companies on Statewide Contract are authorized to allow local
municipalities to "piggyback" off of their contracts.
16. Municipalities purchasing off of [a] COSTARS Contract are not required to bid
purchases because the company is on the COSTARS Contract.
17. In the early 1990s, Franklin County government was inundated with paperwork and
other paper file records which were required to be maintained.
a. The situation was so severe that many County employees were faced with
losing office space in order to store files and documents.
18. County Officials authorized County Employees to begin researching document
management software options to assist in record keeping.
a. The search for document management software began prior to Elliott's
service as a County Commissioner.
19. Deputy Chief Clerk Jean Byers began researching software options concerning the
document management issues; she maintained a record of her findings beginning in
2001.
a. Byers conducted this research at the direction of the Franklin County Board
of Commissioners.
b. Between 2000 and October 10, 2006, Byers participated in and documented
the official County actions regarding the acquisition of a document
management system for Franklin County.
20. Franklin County also considered several other document management systems
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including DocStar, but ultimately chose Laserfiche because County staff determined
it was the most cost effective for the County.
21. Prior to Laserfiche actually being purchased by the County, Franklin County
Commissioners had several discussions and votes regarding the eventual
purchase.
a. Discussions occurred at the Commissioner level between July 31, 2001, and
October 17, 2006.
b. G. Warren Elliott simultaneously served as a sales representative for
General Code and [as a] Franklin County Commissioner throughout this time
frame.
c. Elliott was present during Board of Commissioner meetings when decisions
were made to award the Laserfiche contract.
1. Elliott did not vote or participate in the board's decisions.
2. Elliott excused himself from the meeting room when the initial contract
with General Code was discussed and voted on.
22. Elliott abstained from all official action taken by the Franklin County Board of
Commissioners on the purchase of Laserfiche and related products and services
from General Code.
23. Contracts entered into by Franklin County require the signature of at least two (2)
County Commissioners.
a. Franklin County Commissioners Cheryl Plummer and Robert Thomas
executed all contracts and proposals between Franklin County and General
Code.
24. G. Warren Elliott's signature did not appear on any contract documents as a
Franklin County official.
25. Franklin County purchased Laserfiche initially for use by the Franklin County
Commissioners Office.
26. After Elliott's election to the Franklin County Board of Commissioners, General
Code assigned Sandy Brennan as the employee to manage the Franklin County,
Pennsylvania account in place of G. Warren Elliott.
a. It was determined that Elliott could not represent General Code in Franklin
County due to the appearance of a conflict of interest with his dual positions.
b. Elliott made a request to be removed from the Franklin County account on or
about April 19, 2001.
c. Brennan's assignment began in or about 2001 at the time the County was
considering the use of Laserfiche.
27. Sandy Brennan was not a sales representative for General Code.
a. Brennan's exact title at the time she handled the Franklin County account is
unknown, but her basic duties included, but were not limited to: installations
and training for Laserfiche for customers.
Elliott, 08 -009
Page 7
b. Brennan was assigned the Franklin County account by Gary Domenico,
based on her professional knowledge of the product.
c. Brennan was compensated by way of a base salary for her employment with
General Code.
d. In lieu of a commission, Brennan was paid by way of a bonus.
1. Brennan earned $500.00 total for the entire time she handled the
Franklin County account (2001- 2006).
aa. Brennan received this payment in 2002, but the exact date is
unknown.
2. The amount of money earned by a regional sales representative
would have been substantially higher.
28. Brennan handled the Franklin County account from approximately 2001 through
2006, when the account was taken over by Elizabeth Mistretta.
a. Brennan was never employed nor trained as a Sales Representative for
General Code; as such, when Mistretta began training as a Sales
Representative, the Franklin County account was transferred to Mistretta.
29. Sandy Brennan, as a General Code representative, made several trips to Franklin
County specifically for the Franklin County account.
a. Brennan's travel records do not show any specific meetings with Elliott or his
wife, Donna Elliott, regarding the Franklin County account.
30. A proposal drafted by Sandy Brennan of General Code dated May 1, 2001, outlines
the needs of Franklin County and the suggested products and prices to be provided
by General Code.
a. Elliott is not listed in the proposal, but a bidder data sheet attached to the
proposal lists Elliott and his residential address as a contact for where
purchase orders are to be sent.
31. The contract proposal between General Code and Franklin County dated May 1,
2001, shows that the software being implemented as part of this contract is being
purchased under the Commonwealth of Pennsylvania Department of General
Services Contract #5810 -03 from General Code Publishers (FIN #16- 0869973).
a. Department of General Services (DGS) Contract #5810 -03 was renewed in
2004.
1. This contract has multiple companies that provide multiple services.
32. G. Warren Elliott was a Franklin County Commissioner at the time of this contract
proposal.
33. Elizabeth Mistretta was the Pennsylvania account representative from June 2003
through September 2007.
a. As an account representative, Mistretta handled internal sales, customer
service for current General Code clients, and presentations for Laserfiche.
Elliott, 08 -009
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b. Mistretta began a transition in 2006 to become a sales representative to
serve as the primary sales representative for Virginia.
1. Mistretta's title did not officially change to sales representative until
June 2007.
34. Mistretta began handling the Franklin County Account in approximately 2006 when
she became the main contact for that account.
a. Mistretta did not receive commission[s] for all sales to Franklin County.
b. Some commissions for the Franklin County account went to a house account
where the commission was absorbed by the company.
c. Mistretta was the sole person receiving commission from the County
account, from approximately 2006 to the present.
35. Laserfiche is currently used by the following Franklin County Departments
including, but not limited to:
• Commissioners Office
• MIS
• Controller
• Prison
• Domestic Relations
• Fiscal
• Planning
• Retirement
• Register of Deeds
• Recorder of Deeds
• Risk Management
• Emergency Services
• Human Resources
• Juvenile Probation
36. Payments issued from Franklin County to General Code were processed
consistently with the county's normal payment of bills.
37. County invoices are submitted to the appropriate Department Head for initial
approval of payment.
a. The invoice is then forwarded to the Accounts Payable Department to
generate a warrant list in order for payment checks to be issued.
b. The information generated by the Accounts Payable Department is then
forwarded to the Controller's Office for review and payment.
38. Accounts payable are presented by way of a warrant bill list, which is prepared bi-
weekly, and presented to the Board of Commissioners for approval.
a. The warrant lists are prepared by the accounts payable department.
b. The warrant list is accompanied by a list of all the accounts payable that are
being approved for payment.
Elliott, 08 -009
Page 9
1. Franklin County's warrant lists generally consist of anywhere from 50
to 200 pages.
c. At least two (2) of the three (3) Commissioners must sign the warrant list
which serves as approval for payment of all County invoices.
d. The bills are not paid until the warrant list is signed by at least two (2) of the
three (3) Commissioners.
39. Checks issued by Franklin County are signed by the County Treasurer and County
Controller.
a. No Commissioner signs any check for the payment of invoices.
40. Franklin County payments to General Code were issued based on the approval of
detailed invoices from General Code.
a. General Code invoices included basic information such as: invoice number;
invoice date; sales /edit; and customer number.
41. The sales /edit field is used by General Code to depict a geographic area for sales
purposes.
a. This designation is used by General Code to determine what sales
representative is to receive the commission from that sale, as well as, the
territories of the sales representatives.
b. General Code invoices submitted to Franklin County for payment utilized a
"WE" in the sale /edit field.
c. The "WE" represents Warren Elliott, as he is the only sales representative
with the initials "WE" from General Code.
42. Between August 24, 2001, and October 15, 2007, "WE" appears on forty -two (42) of
forty -seven (47) invoices submitted by General Code to Franklin County.
43. General Code invoices submitted to Franklin County for payment between August
24, 2001, and October 15, 2007, total $204,831.63.
a. Invoices in which "WE" appear[s] within the Sales /Edit field total
$195,709.78.
b. Elliott was not personally presented with copies of the Franklin County
invoices from either the county or General Code.
c. Elliott played no role in approving the invoices, other than by approving
warrant list[s] which contained payments to General Code.
44. Five (5) invoices forwarded to Franklin County include a sales /edit designation of
"HS" or "LM."
a. "HS" is the designation for "House" which indicates the proceeds of the sale
were transferred to a general house account of General Code.
b. "LM" stands for Elizabeth Mistretta indicating that she received the
commission from that sale.
Elliott, 08 -009
Page 10
45. Mistretta made multiple trips to Franklin County, generally in conjunction with a trip
to visit another municipality or client.
46. Between October 14, 2003, and March 8, 2008, Mistretta made a total of nine (9)
trips in which she visited Franklin County, Pennsylvania.
a. [For] five (5) of the nine (9) trips to Franklin County, Mistretta include[d] a
notation on her expense report that she met with Elliott and /or his wife,
Donna Elliott for a meal.
b. Mistretta also had three (3) additional trips, not to Franklin County,
Pennsylvania where her expense report indicates that she had contact with
Elliott or his wife, Donna Elliott during those trips.
c. Elliott was no longer serving as a Franklin County Commissioner as of
January 7, 2008.
47. In addition to Mistretta and Brennan, Donna Elliott, the wife of Respondent, also
played a role in the Franklin County General Code account.
a. Donna Elliott provided clerical support for both Brennan and Mistretta,
concerning the Franklin County account.
b. Donna Elliott had the opportunity to meet /speak with a variety of Franklin
County officials not only due to the fact that her husband was a County
Commissioner, but also as a result of providing clerical support for General
Code.
48. Between June 3, 2004, and August 11, 2004, Donna Elliott had at least three (3) e-
mail correspondences with Franklin County representatives regarding sales to
Franklin County by General Code.
a. These e -mails were sent at the direction of Sandy Brennan, Elizabeth
Mistretta, or another home office representative.
b. E -mails were sent on June 3, 2004; June 29, 2004; and August 11, 2004.
c. The e -mails were related to upgrade proposals to the County's Laserfiche
system and training.
49. Donna Elliott's June 3, 2004, e-mail was to Lisa Shover and included a "proposal
for the upgrade to a Laserfiche United System for use in the County."
a. Lisa Shover was an employee of [the] Franklin County Commissioners Office
from May 1990 until approximately 2005.
1. Shover had responsibilities as a County employee in relation to the
purchase and installation of Laserfiche for the County Controller's
Office and Accounts Payable Office.
50. Donna Elliott followed up her June 3, 2004, e-mail to Lisa Shover with another e-
mail on June 29, 2004.
a. This e -mail served as official notification that the June Laserfiche proposal
pricing would be held until July 20, 2004.
b. Sandy Brennan of General Code was carbon copied on this memo.
Elliott, 08 -009
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51. Donna Elliott sent a third e-mail to Lisa Shover on August 11, 2004, regarding a
breakdown of charges for a Franklin County Laserfiche purchase change order.
52. During the same timeframe that Donna Elliott was e- mailing Lisa Shover regarding
Franklin County Laserfiche purchases and pricing, Franklin County made four (4)
purchases from General Code totaling $46,041.00.
a. General Code invoiced Franklin County on June 23, 2004, August 17, 2004,
September 16, 2004, and September 24, 2004.
b. Each invoice included the letters "WE" under the column salesperson ID.
1. "WE" was the General Code Salesperson ID assigned to Warren
Elliott.
53. General Code holds workshop meetings for potential clients and user group
meetings for existing customers.
a. In Pennsylvania, the meetings are held as one, where existing customers
can explain to potential clients how the system is used.
b. These workshop meetings are also held in order to generate new sales
leads.
54. Franklin County representatives, along with officials from other municipalities,
attended a Laserfiche user group meeting at the Embers Convention Center in
Carlisle, Pennsylvania on April 28, 2004.
a. Elliott was at the meeting in the capacity of a sales representative for
General Code.
1. Franklin County representatives recognized Elliott as a Franklin
County Commissioner, but he addressed the group that he was there
as a General Code sales representative.
b. The meeting was actually conducted by a representative from Laserfiche
based out of California, however; General Code representatives were also in
attendance and made a brief statement.
c. During this meeting in Carlisle, Pennsylvania, Elliott was a current Franklin
County Commissioner.
1. [The] Franklin County Commissioners' offices are located in
Chambersburg, Pennsylvania, which is approximately 20 miles south
of Carlisle.
d. Elliott introduced the Laserfiche representative.
1. Elliott was available for questions from the group if needed.
e. Elliott's participation in this meeting occurred during a time when Franklin
County was still utilizing General Code for Laserfiche purchases.
55. In his official capacity as a Commissioner for Franklin County, G. Warren Elliott
signed warrant lists approving amongst others, payments to General Code.
Elliott, 08 -009
Page 12
a. From August 24, 2001, through October 15, 2007, Elliott signed thirty -three
(33) of forty -six (46) warrant lists approving payment of invoices from
General Code.
THE FOLLOWING FINDINGS RELATE TO THE ALLEGATIONS CONCERNING
ELLIOTT AND HIS USE OF OFFICE CONCERNING FARMERS AND MERCHANT
TRUST COMPANY (F &M).
56. G. Warren Elliott served as a member of the Farmers and Merchant Trust Company
Board of Directors from approximately 1994 to the present.
57. As a Board member for the bank, Elliott's duties include, but are not limited to:
• Being accountable for the performance of the bank.
• Selecting management.
• Monitoring the performance of the bank.
• Services as ambassador to the Community to obtain new business.
58. As a Board member, Elliott received an annual compensation which he reported on
Statement(s) of Financial Interests he filed with Franklin County.
59. Franklin County has used or uses several banks for official business including:
• Farmers and Merchant Trust Company
• Susquehanna Bank
• M &T Bank
• Valley Bank
60. Annually, the County would approve a Resolution for tax and revenue anticipation
notes obtained from Farmers and Merchants Trust.
a. Tax and revenue anticipation notes are issued by units of local government
to solve problems associated with the mismatch between the receipt of
revenues and ongoing expenditures.
1. Short term borrowings are used by a governmental unit [to] cover
deficits that arise as a result of this timing mismatch.
b. The notes obtained from Farmers and Merchant Trust Company are
generally in or around the amount of 5 million dollars.
61. County records reflect that F &M Trust has been utilized for the tax and revenue
anticipation notes, as the custodian of the County's bond issue, Manager /Custodian
on behalf of [the] County with the involvement of County assets, and for a line of
credit for at least the past five (5) years.
a. The County's use of F &M Trust continued during Elliott's tenure as a
member of the Board of Commissioners.
62. Minutes from Franklin County Commissioners meetings confirm the following
actions taken by the Franklin County Commissioners regarding F &M Trust
Company.
a. Minutes confirm that Elliott voted on March 18, 2003, to approve Resolution
No. 2003 -06 authorizing tax and revenue anticipation on notes from F &M.
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Page 13
1 The action approving Resolution No. 2003 -06 was rescinded at a
subsequent meeting of the Board of Commissioners on March 20,
2003.
2. A new motion to approve Resolution No. 2006 -06 was approved on
March 20, 2003, with Elliott abstaining.
b. Elliott voted on December 12, 2006, to approve the Secretary of the Board of
Commissioners to execute the corporate authorization resolution to F &M
Bank for the County nursing home.
1. Elliott was one of two board members present.
63. Elliott, as a Franklin County Commissioner, abstained from engaging in discussions
and /or utilizing the authority of his office as a County Commissioner, in any actions
regarding F &M.
a. On at least two (2) occasions, Elliott utilized the authority of his office by
casting affirmative votes regarding agreements between Franklin County
and F &M.
1. Immediately upon reconvening at the next County Commissioners
meeting, the previously approved agreement in which Elliott
participated was rescinded and a new vote was taken by the board,
with Elliott abstaining.
64. Sometime during 2007, Franklin County Solicitor Shawn Meyers provided Elliott
with a verbal advice that Elliott should abstain from votes taken in relation to any
business between Franklin County and F &M.
III. DISCUSSION:
As a Commissioner for Franklin County ( "County "), Respondent G. Warren Elliott
(hereinafter also referred to as "Respondent," "Respondent Elliott," and "Elliott ") 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 Elliott violated Section 1103(a) of the Ethics Act when he
participated in actions of the County Board of Commissioners ( "Board ") to approve
payments issued to General Code Publishers, a business with which he is associated; and
when he participated in actions of the Board to enter into contracts with Farmers and
Merchants Bank at a time when he was serving on the bank's Board of Directors.
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
Elliott, 08 -009
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"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.
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 Elliott first served as a County Commissioner in 1987, when he filled a
vacant position for one year. Subsequently, Respondent served as a County
Commissioner from approximately 1996 until January 2008.
Since approximately 1981, Respondent has been employed continuously by
"General Code Publishers" ( "General Code "). General Code provides codification and
document management services, including the document imaging system known as
" Laserfiche."
Respondent is a Senior Sales Representative for General Code. Respondent's
sales territory includes the entire State of Pennsylvania, with the exception of the County.
The County was removed from Respondent's sales territory in 2001, due to Respondent's
service on the Board.
Respondent's wife, Donna Elliott, is also employed by General Code. From October
1997 through February 2008, Donna Elliott served as a Research Analyst for General
Code and was paid a flat fee for each research project she conducted. In March 2008,
Donna Elliott was hired as a full -time employee of General Code.
Prior to 2001, no business was conducted by General Code in the County. In or
about 2001, General Code assigned employee Sandy Brennan ( "Brennan ") to manage the
County account. Brennan's assignment began at the time the County was considering the
use of Laserfiche. Brennan handled the County account from approximately 2001 through
2006, when the account was taken over by Elizabeth Mistretta ( "Mistretta "). Donna Elliott
provided clerical support for both Brennan and Mistretta concerning the County account.
As a General Code employee, Respondent is paid a monthly draw, which offsets
any commission earned on a monthly basis. The parties have stipulated that Respondent
did not receive any commissions for the County account. Fact Finding 4 a. Commissions
for the County account were maintained as income for General Code, or paid to Brennan
Elliott, 08 -009
Page 15
or Mistretta. Id.
Per the Stipulated Findings, County purchases from General Code may have been
made through contractual arrangements with the Pennsylvania Department of General
Services. (See, Fact Findings 14 -16, 31 -31 a(1)).
Prior to Laserfiche being purchased by the County, the County Commissioners had
several discussions and votes regarding the eventual purchase. Discussions occurred at
the Commissioner level between July 31, 2001, and October 17, 2006. Respondent did
not vote or participate in the Board's decisions. Respondent excused himself from the
meeting room when the initial contract with General Code was discussed and voted upon.
Respondent abstained from all official action taken by the Board on the purchase of
Laserfiche and related products and services from General Code. County Commissioners
other than Respondent executed all contracts and proposals between the County and
General Code.
Although numerous General Code invoices submitted to the County for payment
included Respondent's initials in the area used to designate the applicable sales
representative /sales territory, the parties have stipulated that Respondent did not receive
any commissions for the County account. Fact Finding 4 a.
Pursuant to County procedures, invoices submitted to the County for payment are
initially approved by the appropriate Department Head and are subsequently included as
part of a "warrant list" submitted to the Board for approval. At least two of the three County
Commissioners must sign the warrant list, which serves as approval for payment of all
County invoices. The bills are not paid until the warrant list is signed by at least two of the
three Commissioners.
Between August 24, 2001, and October 15, 2007, General Code submitted to the
County invoices totaling $204,831.63. Respondent's only role in approving the invoices
was to approve warrant lists which contained payments to General Code. From August 24,
2001, through October 15, 2007, acting in his official capacity as a County Commissioner,
Respondent signed thirty -three (33) of forty -six (46) warrant lists approving payment of
invoices from General Code.
We shall now review the material facts pertaining to the allegation that Respondent
participated in actions of the Board to enter into contracts with Farmers and Merchants
Trust Company ( "F &M ") at a time when he was serving on F &M's Board of Directors.
Respondent has served as a member of the F &M Board of Directors from
approximately 1994 to the present. The County has used several banks for official
business, including F &M.
The parties have factually stipulated that "Elliott, as a Franklin County
Commissioner, abstained from engaging in discussions and /or utilizing the authority of his
office as a County Commissioner, in any actions regarding F &M." Fact Finding 63. The
parties have also stipulated that there were occasions when Respondent voted in matters
pertaining to F &M (Fact Findings 62 -62 b(1), 63 a -63 a(1)). The Stipulation of Findings
indicates that there were at least two occasions when Respondent voted in matters
pertaining to F &M and such Board actions were subsequently rescinded and new votes
were taken without Respondent's participation. Fact Findings 62 a -62 a(2), 63 a -63 a(1).
Sometime during 2007, the County Solicitor provided Respondent with verbal
advice that Respondent should abstain from votes taken in relation to any business
between the County and F &M.
Elliott, 08 -009
Page 16
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 transgression of Section 1103(a)
of the Public Official and Employee Ethics Act, 65
Pa.C.S. § 1103(a) occurred in relation to Elliott's
approval of payments issued to General Code
Publishers, a business with which he is associated; and
b. That no violation of Section 1103(a) of the Public
Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a)
occurred in relation to Elliott's participation in the
awarding of contracts to Farmers and Merchants Bank,
at a time when he was serving on the bank's Board of
Directors, in that Elliott ultimately abstained from
participating in such matters.
4. The Investigative Division will recommend that the State Ethics
Commission take no further action in this matter; and make no
specific recommendations to any law enforcement or other authority
to take action in this matter. Such, however, does not prohibit the
Commission from initiating appropriate enforcement actions in the
event of Respondent's failure to comply with this agreement or the
Commission's order or cooperating with any other authority who may
so choose to review this matter further.
Consent Agreement, at 1 -2.
In considering the Consent Agreement of the parties, we shall accept the parties'
recommendation for a finding that an unintentional transgression of Section 1103(a) of the
Ethics Act occurred in relation to Respondent's approval of County payments issued to
General Code. Respondent used the authority of office when, in his capacity as a County
Commissioner, he approved warrant lists that contained payments to General Code.
General Code is a business with which Respondent is associated in his capacity as an
employee.
From August 24, 2001, through October 15, 2007, acting in his official capacity as a
County Commissioner, Respondent signed thirty -three (33) of forty -six (46) warrant lists
approving payment by the County of invoices from General Code. Although some of the
aforesaid approvals may have occurred prior to the time period that is subject to review in
this case (see, 65 Pa.C.S. § 1108(m)), per the Consent Agreement, the parties are in
agreement that the Stipulated Findings support a finding of an unintentional transgression
of Section 1103(a) of the Ethics Act.
Intent is not a requisite element for a transgression of the Ethics Act. Yocabet v.
State Ethics Commission, 531 A.2d 536 (Pa. Cmwlth. 1987). However, it is one of the
factors that this Commission may consider in determining the proper disposition of a case.
We conclude that the application of the law to the facts before us supports the
recommended finding of an unintentional transgression of Section 1103(a) of the Ethics
Act. Accordingly, we hold that an unintentional transgression of Section 1103(a) of the
Elliott, 08 -009
Page 17
Ethics Act occurred in relation to Respondent's approval of County payments issued to
General Code, a business with which he is associated.
Based upon the Stipulated Findings, we agree with the parties' recommendation for
a finding that no violation of Section 1103(a) of the Ethics Act occurred in relation to the
allegation that Respondent participated in actions of the Board to enter into contracts with
F &M at a time when he was serving on F &M's Board of Directors. We agree with the
recommendation for the reason that the parties have factually stipulated that Respondent,
as a County Commissioner, abstained from engaging in discussions and /or utilizing the
authority of his office as a County Commissioner in any actions regarding F &M. Fact
Finding 63. Respondent receives the benefit of the aforesaid Stipulation (Bartholomew v.
State Ethics Commission, 795 A.2d 1073 (Pa. Cmwlth. 2002)).
We parenthetically note that remedial measures to rescind a vote would not operate
to "undo" or negate a violation. See, Hofrichter, Opinion 98 -003 -R at 3; Cf., Keller, Order
1282 at 11; Dovidio, Order 1202 at 37.
Accordingly, we hold that based upon the Stipulated Findings, no violation of
Section 1103(a) of the Ethics Act occurred in relation to the allegation that Respondent
participated in actions of the Board to enter into contracts with F &M at a time when he was
serving on F &M's Board of Directors.
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.
IV. CONCLUSIONS OF LAW:
1. As a Commissioner for Franklin County ( "County "), Respondent G. Warren Elliott
( "Elliott ") 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. Elliott unintentionally transgressed Section 1103(a) of the Ethics Act, 65 Pa.C.S. §
1103(a), in relation to his approval of County payments issued to General Code
Publishers, a business with which he is associated.
3. Based upon the Stipulated Findings, no violation of Section 1103(a) of the Ethics
Act occurred in relation to the allegation that Elliott participated in actions of the
County Board of Commissioners to enter into contracts with Farmers and Merchants
Trust Company ( "F &M ") at a time when he was serving on F &M's Board of
Directors.
In Re: G. Warren Elliott,
Respondent
ORDER NO. 1521
File Docket: 08 -009
Date Decided: 7/22/09
Date Mailed: 8/4/09
1 As a Commissioner for Franklin County ( "County "), Respondent G. Warren Elliott
( "Elliott ") unintentionally transgressed Section 1103(a) of the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), in relation to his approval
of County payments issued to General Code Publishers, a business with which he
is associated.
2. Based upon the Stipulated Findings, no violation of Section 1103(a) of the Ethics
Act occurred in relation to the allegation that Elliott participated in actions of the
County Board of Commissioners to enter into contracts with Farmers and Merchants
Trust Company ( "F &M ") at a time when he was serving on F &M's Board of
Directors.
BY THE COMMISSION,
Louis W. Fryman, Chair