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HomeMy WebLinkAbout1540 Hart In Re: David Hart, : File Docket: 08-031 Respondent : X-ref: Order No. 1540 : Date Decided: 12/15/09 : Date Mailed: 12/29/09 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella Mark Volk 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. Hart, 08-031 Page 2 I.ALLEGATIONS: That David A. Hart, a public official/public employee in his capacity as a Supervisor of Conemaugh Township, Somerset County, violated Sections 1103(a) and 1104(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a) and 1104(a), when he used the authority of his office for private pecuniary benefit by claiming and approving vacation time for him for more hours than actually accrued and when he claimed and received reimbursement for mileage on days when he was not working as a Township employee; when he failed to file Statements of Financial Interests for the 2004 and 2007 calendar years; and when he used Township issued credit cards to make purchases of a personal nature. II.FINDINGS: 1. David Hart served as a Supervisor of Conemaugh Township, Somerset County from January 7, 2002, until December 31, 2007. a. Hart served as Secretary/Treasurer and Roadmaster from January 5, 2004, until December 31, 2007. b. Hart was assigned office space within the Conemaugh Township Building for use in connection with his position as Secretary/Treasurer and Roadmaster. 1. All Township files are maintained at the Township Building. 2. No official Township files were to be maintained off site, including Hart’s private residence. c. The Township did not maintain a specific job description for either the position of Secretary/Treasurer or Roadmaster during Hart’s tenure as a Supervisor. 2. Conemaugh Township is a Second Class Township governed by a three member Board of Supervisors. a. Supervisors are elected to 6 year terms. b. Supervisors receive annual compensation of $2,499.96 for their service as a Township Supervisor. 3. In addition to all three Supervisors, the Secretary/Treasurer also maintains signature authority over Township financial accounts. a. Checks require the signature of the Secretary/Treasurer and one Supervisor. b. Facsimile stamps were permitted to be used during Hart’s term as Supervisor. 1. A facsimile stamp of Supervisor Calvin Gindlesperger’s signature was created for the exclusive use of Hart on Township checks. 4. Conemaugh Township employs a six member, full-time road crew to address road related issues in the Township. a. The Conemaugh Township road crew maintains approximately 80 miles of road, including: berms, guide rails, storm lines, culverts, and street signs. Hart, 08-031 Page 3 b. The road crew also maintains the Township facilities (buildings and grounds) and a Township baseball field. 5. The Conemaugh Township road crew is supervised by two full time Roadmasters. a. From 2004 through 2007 the Roadmasters appointed by the Board of Supervisors were David Hart and Wayne Kauffman. 6. Normal working hours for the Conemaugh Township road crew change with the season as follows: a. From May 1 through November 15 employees work 10 hour days Monday through Thursday. 1. The road crew begins work at 6:00 a.m. and ends work at 4:00 p.m. b. From November 15 through May 1 employees work 8 hour days Monday through Friday. 1. The road crew begins work at 7:00 a.m. and ends work at 3:00 p.m. c. Road crew workers punch a time clock and complete time sheets to record hours worked. 1. The time sheets and punch cards are reviewed and approved by the Roadmasters for accuracy. d. It is common practice for the Conemaugh Township Roadmasters to follow the same established work schedule as the road crew. 1. Roadmasters did not complete timesheets or punch cards to document hours worked. 7. Conemaugh Township Auditors’ reorganization meeting minutes document Hart’s combined salary as Secretary/Treasurer and Roadmaster for 2004 through 2007, as approved by the township auditors, as follows: Meeting Date Approved Combined Salary January 15, 2004 $49,561.60 January 4, 2005 $49,561.60 January 4, 2006 $52,614.05 January 9, 2007 $53,666.33 a. Conemaugh Township Auditors confirmed that Hart’s approved salary for each year reflected a minimum 40 hour work week. b. Hart’s designation as a salaried employee as opposed to an hourly employee was intended to compensate him for any hours worked in excess of 40 hours per week. 8. Conemaugh Township Auditors meeting minutes from 2004, 2005, 2006 and 2007 do not indicate the allotment of vacation time to Supervisors employed by Township. a. Township Auditors confirmed that the Supervisors were to follow the union contract between the Township and the United Steelworkers of America Hart, 08-031 Page 4 Maintenance Employees Local Union 2635-18, for the calculation of vacation time. 1. It has been past practice of the Township for the Supervisors to follow the union contract. b. The union contract contains the following regarding allotment of vacation time to employees: “All full time bargaining unit employees shall be entitled to vacation with pay after one (1) year of continuous service with the Employer. The amount of vacation to which an employee is entitled shall be determined in accordance with the following: After one (1) year of service, but less than three (3) years of service; five (5) workdays equal to forty (40) hours. Such vacation shall be scheduled by the Board of Supervisors during the annual shutdown week. After three (3) years of service, but less than then ten (10): an additional five (5) workdays equal to forty (40) hours. After ten (10) years of service, but less than fifteen (15): an additional five (5) workdays equal to forty (40) hours. After fifteen (15) years of service: an additional five (5) workdays equal to forty (40) hours.” c. The following chart summarizes vacation leave allotted by the contract: Years of Service Total Hours Allotted <1 0 1 to 3 40 3 to 10 80 10 to 15 120 15+ 160 9. Conemaugh Township Auditors meeting minutes from 2004 and 2005 confirm that compensatory time was not approved for working Supervisors claiming in excess of 40 hours within a work week. a. Conemaugh Township Auditors confirmed that Hart was not authorized or approved to receive compensatory time in 2004 and 2005. b. Township Auditors discussed but declined to approve compensatory time for the position of Secretary/Treasurer Roadmaster during the January 4, 2006, and January 9, 2007, auditors meetings. 10. In his capacity as Secretary/Treasurer Roadmaster for Conemaugh Township, Hart was not required to complete time sheets or complete punch cards, documenting hours worked. 11. Hart was responsible for maintaining Township records documenting the amount of leave utilized by employees, as well as the amount of accrued leave remaining. a. Hart maintained no record of his personal leave either utilized or accrued. Hart, 08-031 Page 5 1. Hart was responsible for approving his own utilized leave. 12. Cindy Walerysiak is the former Assistant Secretary/Treasurer and current Secretary/Treasurer for Conemaugh Township. a. As Assistant Secretary/Treasurer, from 2004 through 2007, Walerysiak worked as Hart’s assistant on various Township tasks including preparation of Township bills and the handling of residents’ phone calls. 1. Walerysiak’s office is located in the same building that Hart’s office was located. 13. Walerysiak documented days that Hart was absent from work on her personal desk calendars. a. Daily attendance records were later completed by payroll clerk Colette Boschele with the information from the desk calendars. b. Hart would normally inform Walerysiak ahead of time of days he was going to be absent from work. 14. Walerysiak’s desk calendars contained the following notations documenting Hart’s absences from work: Dates Notations 02/28/05 to 03/04/05 Dave to Florida 05/02/05 to 05/06/05 Dave in Florida 07/04/05 to 07/08/05 Shutdown week 10/13/05 to 10/21/05 Dave vacation 03/23/06 to 03/31/06 Dave off 06/15/06 to 06/16/06 Dave to Michigan 07/03/06 to 07/07/06 Shutdown week 10/13/06 to 10/20/06 Dave to Florida 02/16/07 to 02/23/07 Dave to Florida 06/25/07 to 06/29/07 Dave off 07/02/07 to 07/06/07 Shutdown week 10/12/07 to 10/13/07 Dave out 10/15/07 to 10/19/07 Dave off 15. Road crew employees and Township Roadmaster/Supervisor Wayne Kauffman observed Hart’s absences during the time periods noted on Walerysiak’s calendars. a. Hart was absent from daily morning meetings that took place between the road crew and Roadmasters outlining work to be performed. 16. During Hart’s time on the Board, Conemaugh Township held an annual shutdown th week normally taking place the week of the 4 of July holiday. a. To receive compensation for the shutdown week, employees were to utilize accrued vacation leave. b. The shutdown week was held to minimize conflicts regarding vacation utilization. c. The following chart shows when the shutdown week was held each year that Hart, 08-031 Page 6 Hart served as a working Township Supervisor: Year Shutdown Week 2004 7/5/2004 to 7/9/2004* 2005 7/4/2005 to 7/8/2005 2006 7/3/2006 to 7/7/2006 2007 7/2/2007 to 7/6/2007 *July 5, 2004 was a paid holiday, because July 4, 2004 fell on a Sunday. d. Hart was compensated for hours during the shutdown week in 2004, 2005, 2006, and 2007. 17. Conemaugh Township records confirm Hart was absent from work for 30 hours of vacation leave in 2004; 160 hours in 2005; 140 hours in 2006; and 142 [sic] hours in 2007. The following chart outlines days on which Hart was absent from work as a Conemaugh Township employee: Hours Date Utilized 7/6/2004 10 7/7/2004 10 7/8/2004 10 Total 2004 30 2/28/2005 8 3/1/2005 8 3/2/2005 8 3/3/2005 8 3/4/2005 8 5/2/2005 10 5/3/2005 10 5/4/2005 10 5/5/2005 10 7/5/2005 10 7/6/2005 10 7/7/2005 10 10/13/2005 10 10/17/2005 10 10/18/2005 10 10/19/2005 10 10/20/2005 10 Total 2005 160 3/27/2006 8 3/28/2006 8 3/29/2006 8 3/30/2006 8 3/31/2006 8 6/15/2006 10 7/3/2006 10 7/5/2006 10 Hart, 08-031 Page 7 7/6/2006 10 8/14/2006 10 8/15/2006 10 10/16/2006 10 10/17/2006 10 10/18/2006 10 10/19/2006 10 Total 2006 140 2/20/2007 8 2/21/2007 8 2/22/2007 8 2/23/2007 8 6/25/2007 10 6/26/2007 10 6/27/2007 10 6/28/2007 10 7/2/2007 10 7/3/2007 10 7/5/2007 10 Total 2007 102 18. Based on the practices of Conemaugh Township, vacation leave was to be accrued by Supervisors employed by the Township in the same manner as was set forth in the local union contract. The following chart outlines the amount of vacation leave available to Hart in 2004, 2005, 2006, and 2007: Hours Year Allotted 2004 0 2005 40 2006 40 2007 80 19. Hart’s hourly rate of pay for the position of Roadmaster – Secretary/Treasurer was determined by dividing Hart’s annual Roadmaster – Secretary/Treasurer salary by 40 hours per week for 52 weeks as shown below: Year Salary Approx. Hourly Rate 2004 $49,561.60 $23.83 2005 $49,561.60 $23.83 2006 $52,614.05 $25.30 2007 $53,666.33 $25.80 ** 20. Hart received compensation totaling $6,619.67 for vacation hours in excess of the approved rate as follows: Year Excess Rate of Total Hours Pay Hart, 08-031 Page 8 2004 30 $ 23.83 $ 714.83** 2005 120 $ 23.83 $2,859.32** 2006 100 $ 25.30 $2,529.52** 2007 20 $ 25.80 $ 516.00 2004-2007 Total $6,619.67** 21. Hart lost the election to serve a second term as Supervisor during the November 6, 2007, general election. a. Hart decreased his work hours for the Township following his defeat. b. Hart confirmed to State Ethics Commission Investigators working less than 40 hours weekly but [being] compensated for 40 hours per week from November 12, 2007, until January 4, 2008. 1. Hart admitted to missing morning meetings between the road crew and Roadmasters on a frequent basis. 2. Hart did not attend monthly Supervisors meetings in November 2007 or December 2007. c. The number of hours worked by Hart between November 12, 2007, and December 31, 2007, could not be determined from Township records. 22. Hart participated in the approval of monthly Township bills, including all payments from the Township General Fund. a. Payroll in the Township is paid from the General Fund. b. In his official capacity as Conemaugh Township Supervisor, Hart voted to approve all monthly bills, which included payments to himself for utilized hours Hart was absent from work in excess of accrued leave, yet compensated nonetheless, as shown in the following chart: [sic] c. Hart participated in approving 18 of the twenty payments issued to him between July 22, 2004, and January 16, 2008. d. Hart voted to approve 15 of 20 payroll checks issued to him for time absent from work in excess of accrued vacation time. e. Hart voted to approve 3 of 3 accounts payable checks for advance pay, representing compensation for time absent from work in excess of accrued leave. 23. Hart cashed or deposited all payroll checks, and all accounts payable checks, issued to him from the Township General Fund that contained compensation for absentee hours from work. THE FOLLOWING FINDINGS RELATE TO THE ALLEGATIONS THAT HART CLAIMED AND RECEIVED REIMBURSEMENT FOR MILEAGE ON DAYS WHEN HE WAS NOT ENGAGED IN TOWNSHIP BUSINESS OR WORKING AS A TOWNSHIP EMPLOYEE. 24. As an employee of Conemaugh Township, Hart completed monthly mileage reimbursement reports for miles driven in relation to official Township business. Hart, 08-031 Page 9 a. The mileage reports were to contain the date(s) miles were claimed, the amount of miles driven, and a description of the purpose why miles were traveled. b. Beginning in October 2006, Hart provided a monthly total of miles traveled, but did not provide a description of the purpose miles were traveled or the date the miles were traveled. 25. The mileage reimbursement rate was approved at yearly Board of Supervisors reorganization meetings. Meeting minutes confirm the following approved reimbursement rates for mileage: Year Rate 2004 $0.375 1/1/05 to 9/1/05 $0.405 9/1/05 to 12/31/05 $0.485 2006 $0.445 2007 $0.485 a. The mileage reimbursement rate was changed at the September 21, 2005, regular meeting to $0.485 per mile to reflect the change of the Federal IRS mileage reimbursement rate, retroactive to September 1, 2005. b. Hart claimed a total of 459 miles on days he was documented as being absent from work. 1. Hart claimed 384 miles in 2005 and 75 miles in 2006 on days that he was documented as being absent from a full work day. 26. Hart completed and submitted the mileage reports for reimbursement and approved his mileage reports as Roadmaster – Secretary/Treasurer. 27. Hart claimed and was compensated for miles on days that he was absent from work in the following amounts, as shown below: Date Miles Rate Amount 2/28/2005 24 0.405 $ 9.72 5/2/2005 40 0.405 $ 16.20 5/3/2005 28 0.405 $ 11.34 5/4/2005 26 0.405 $ 10.53 5/5/2005 28 0.405 $ 11.34 7/5/2005 75 0.405 $ 30.38 7/6/2005 65 0.405 $ 26.33 7/7/2005 50 0.405 $ 20.25 10/13/2005 48 0.485 $ 23.28 7/3/2006 25 0.445 $ 11.13 7/5/2006 25 0.445 $ 11.13 7/6/2006 25 0.445 $ 11.13 ** a. Hart was compensated a total amount of $192.74 for miles claimed on days that he was documented as being absent from work. **** 1. Hart was compensated $159.36 in 2005 and $33.38 in 2006 for Hart, 08-031 Page 10 claiming miles on days that he utilized vacation leave. THE FOLLOWING FINDINGS RELATE TO THE ALLEGATIONS THAT HART USED TOWNSHIP ISSUED CREDIT CARDS TO MAKE PURCHASES OF A PERSONAL NATURE. 28. In approximately January 2004, Hart obtained a Township MasterCard credit card # XXXX-XXXX-XXXX-6120 through his position as Township Secretary/Treasurer. a. The card was issued in Hart’s name and also in the name of Conemaugh Township. b. The card was obtained to allow for easier purchase of items for Township use. c. The card was to be used only to make purchases related to official Township business. d. The card limit was $2,000.00. e. There was no official vote taken by the Board of Supervisors to authorize Hart to obtain the card. f. Only one card was issued to the Township. g. The Township MasterCard was maintained by Hart in his appointed position as Secretary/Treasurer. 29. Purchases made on the credit card appear on individual MasterCard bills which are mailed to the Township’s office for payment. a. MasterCard bills are processed the same way as other Township bills. 30. Between January 2004 and December 2007, Hart used the Township issued MasterCard to make purchases relating to both Township and personal use. a. Purchases on the card made by Hart included but were not limited to: lodging, meals, computer equipment, PSATS Convention expenses, and alcoholic beverages. 31. Hart routinely made purchases of meals from restaurants on the Township MasterCard unrelated to any township business totaling $473.85 as follows: Statement Date of End Date Purchase Purchase Amount 2/28/2005 Rizzo's Rest - Windber 1/29/2005 $ 80.43 2/28/2006 Baileys Circle 219 Inc 2/24/2006 $167.22 5/31/2006 Chili's Grill - Johnstown 4/28/2006 $ 70.72 11/30/2006 Denny's Inc - Johnstown 11/24/2006 $ 29.07 4/30/2007 Ground Round - Greensburg 4/2/2007 $ 36.96 5/31/2007 Denny's Inc - Johnstown 5/2/2007 $ 22.22 7/24/2007 Big Dogz Grill - Johnstown 6/26/2007 $ 67.23 Total $473.85 a. The purchases made on April 27, 2005, in the amount of $109.68 at Hart, 08-031 Page 11 Applebee’s on April 28, 2006, in the amount of $70.72 at Chili’s, and on May 1, 2006, in the amount of $69.41 at Lone Star were in relation [to] meals purchased for Secretary’s Day. 32. Hart also made the following purchases on the Township MasterCard totaling $410.42 while vacationing in Florida: Statement Date of End Date Purchase Purchase Amount 5/31/2005 Alamo Rent-a-car - Orlando FL 4/30/2005 $ 214.01 5/31/2005 Regal Empress – Ft. Lauderdale, FL 5/4/2005 $ 196.41 a. Hart regularly vacationed in Florida during his term as Conemaugh Township Supervisor. b. These purchases were not authorized by the Board of Supervisors. 33. Hart made additional purchases of a personal nature in the amount of $316.35 utilizing the Township issued MasterCard as outlined in the following chart: Statement Date of End Date Purchase Purchase Amount 12/30/2005 Berman Inv. 877-237-6265 12/17/2005 $ 99.90 12/30/2005 Yoder's Greenhouse - Johnstown 12/21/2005 $ 36.00 12/30/2005 Habits Beer & Tobacco - Johnstown 12/22/2005 $ 52.70 8/31/2006 MNI CreditReport.com 8/5/2006 $ 27.95 8/31/2006 MNI Creditreport Services 8/24/2006 $ 9.95 12/29/2006 CLK Bank.com Download 12/10/2006 $ 69.85 12/29/2006 Habits Beer & Tobacco - Johnstown 12/19/2006 $ 20.00 a. The purchase made on 12/17/2005 in the amount of $99.90 listed as “Berman Inv. 877-237-6265” was found to have been for a Bruce A. Berman investment program. Website: http://www.bruceabermanprogram.com. 1. The purchase had no relation to Township business. b. Conemaugh Township records do not include receipts for purchases made by Hart at Yoder’s Greenhouse on 12/21/2005 and/or at Habits Beer & Tobacco on 12/22/2005. c. The purchases on 8/5/2006 and 8/24/2006 listed as MNI Credit report services are from a credit reporting website: http://www.creditreport.com. 1. The purchase had no relation to Township business. d. The purchase from 12/10/2006 in the amount of $69.85 listed as “CLK Bank.com Download” was found to have been for DVD pirating software that allows the user to copy DVD movies. Website: http://www.dvdenergy.com. e. The receipt provided for the purchase on 12/19/2006 in the amount of $20.00 from Habit’s Beer and Tobacco shows the purchase of a 30 pack of Coors Light Beer. f. None of the above listed purchases were not authorized by the Board of Supervisors nor related to legitimate Township business. Hart, 08-031 Page 12 34. Hart utilized the Township issued MasterCard to make personal purchases totaling $1,200.62. 35. During Hart’s term as a Conemaugh Township Supervisor the Township utilized Sam’s Club to take advantage of purchases of frequently used items in bulk amounts. a. Sam’s Club is a division of Wal-Mart Stores, Inc. that offers discounts on merchandise and services for small business owners and consumers with the purchase of an annual membership. b. The Sam’s Club store nearest to Conemaugh Township is located at 2500 Plank Road Commons, Altoona, PA. 1. The store is approximately 50 miles from the Township. c. Purchases were made of coffee related items for Township use including coffee, coffee cups, and coffee stirs. 36. Hart used the Township Sam’s Club credit card to make the following purchases of a personal nature totaling $349.69, at a time when Hart was conducting Township business as shown below: Purchase Date Price Description 5/15/2004 $ 3.88 Whole Kernel Corn 5/15/2004 $ 3.88 Sweet Peas 5/15/2004 $ 7.84 Solid White Albacore 5/15/2004 $ 5.87 Cascade Gel 5/15/2004 $ 6.62 Frosted Mini Wheats 5/15/2004 $ 8.86 Supreme Plate 5/15/2004 $23.22 Minced Garlic - 48 OZ 5/15/2004 $10.86 Beef Sirloin Patties 5/15/2004 $13.24 Raw Shrimp 31/40 CT 5/15/2004 $14.88 Cheer Liquid 5/15/2004 $ 5.76 Cut Green Beans 5/15/2004 $ 5.48 Summer Tinted Cups 5/15/2004 $ 8.24 Mini Eclairs 5/15/2004 $ 5.88 Chicken & Poultry 5/15/2004 $ 6.88 Shells & Cheese 5/15/2004 $ 5.87 Grill Seasoning 5/15/2004 $ 3.86 Raspberries 12 OZ 5/15/2004 $ 9.87 Fancy Cashew 5/15/2004 $ 5.87 Smokey Mesquite 5/15/2004 $12.88 Bnls Sknls Fully 5/15/2004 $ 5.88 Vanity Fair Tblcover 5/15/2004 $ 6.87 Cutlery Combo Pack 5/15/2004 $ 6.38 Deer Park 5/15/2004 $19.84 Media Storage Rack 5/15/2004 $13.88 Northern Bath Tissue 5/15/2004 $ 5.76 Cheerios 5/15/2004 $19.27 Kill Bill Hart, 08-031 Page 13 4/22/2006 $ 9.88 Cashew Halves 4/22/2006 $ 3.88 Russet Potatoes - 10 LB 4/22/2006 $ 2.33 Stroe/Sunbeam/Ranch 4/22/2006 $ 3.43 Sweet Onion 5 LB 4/22/2006 $12.86 Raw Shrimp 31/40 CT 4/22/2006 $14.88 Cheer 4/22/2006 $ 5.08 Chicken Broth 4/22/2006 $16.56 Northern Bath Tissue 4/22/2006 $ 4.88 Aquafina 4/22/2006 $16.52 Bounty SAS Mega 4/22/2006 $11.77 Dove Pink/Sensitive a. Hart made a total of $247.62 in personal purchases on 5/15/2004 and a total of $102.07 on 4/22/2006. b. The following items were purchased for Township use on the dates of May 15, 2004, and April 22, 2006: Date Description Price 05/15/04 Cup Foam 8oz 1000 count $32.64 05/15/04 Pom Paper Towels $35.74 05/15/04 Select-A-Size 12 Roll $12.88 05/15/04 Cold Cup 9oz $23.64 04/22/06 Cane Sugar Packets $12.89 04/22/06 Custom Roast $41.28 04/22/06 Pin Sol $15.68 37. Hart used his public position to charge personal items to the Township MasterCard and the Township Sam’s Club card totaling $1,550.31. a. MasterCard $1,200.62 b. Sam’s Club $ 349.69 Total $1,550.31 38. From January 2004 through December 2007, Hart in his official capacity as Conemaugh Township Secretary/Treasurer, received and reviewed MasterCard and Sam’s Club credit card bills, produced and signed checks, and approved bill lists for purchases made by him on both Township issued credit cards. 39. From January 2004 through December 2007, Hart, in his official capacity as Conemaugh Township Supervisor, voted to approve bill lists which included payments to MasterCard and Sam’s Club, which contained invoices for purchases made by Hart which were of a personal nature. a. Hart was absent from the following meetings from January 2004 through December 2007: Meeting Date Month Bills From 11/21/2007 November 2007 12/19/2007 December 2007 40. On January 4, 2008, after leaving office, Hart reimbursed Conemaugh Township in the amount of $760.11 for personal purchases made with Township credit cards Hart, 08-031 Page 14 with the following check: Check Date Check No. Amount 1/4/2008 742 $ 760.11 a. The amount of $760.11 was for personal purchases made on the Township Sam’s Club credit card and for personal purchases made on the Township MasterCard account while Hart was vacationing in Florida. 41. Hart’s balance [for] personal use of Conemaugh Township credit cards [is] as shown below: Total Charges: $1,550.31 Less Reimbursement $ 760.11 Total $ 790.20 THE FOLLOWING FINDINGS RELATE TO THE ALLEGATIONS THAT HART FAILED TO FILE STATEMENTS OF FINANCIAL INTERESTS FOR THE 2004 AND 2007 CALENDAR YEARS. 42. As Supervisor for Conemaugh Township, Hart was annually required to file a Statement of Financial Interests form by May 1, containing information as it related to the prior calendar year. 43. On June 16, 2008, a compliance review was conducted of the Statement of Financial Interests forms on file with Conemaugh Township. The following forms were found to have been filed by Hart: a. Calendar Year 2003: Filed: 2-17-04 on SEC form 01/98 Position: Supervisor Creditors: None Direct/indirect income: Hart Construction, Major Builders Office, Directorship or Employment in any business: Hart Construction All other financial interests: None b. Calendar Year 2004: No form on file. c. Calendar Year 2005: Filed: 1-10-06 on SEC form 01/06 Position: Supervisor/Roadmaster/Secretary/Treasurer Creditors: Capital One Car Loan Direct/indirect income: Conemaugh Township Office, Directorship or Employment in any business: None All other financial interests: None d. Calendar Year 2006: Filed: 2-26-07 on SEC form 01/07 Position: Supervisor Creditors: Capital One Car Loan Direct/indirect income: Conemaugh Township Office, Directorship or Employment in any business: Secretary/Treasurer Conemaugh Township All other financial interests: None e. Calendar Year 2007: No form on file. Hart, 08-031 Page 15 44. No record exists in Conemaugh Township of David Hart filing Statements of Financial Interests for the following years: a. 2004 calendar year by May 1, 2005. 1. Hart was compensated $2,499.96 in Supervisor wages and $49,561.60 in Secretary/Treasurer wages for a total of $52,061.56 in 2004. b. 2007 calendar year by May 1, 2008. 1. Hart was compensated $2,499.96 in Supervisor wages and $53,666.33 for a total of $56,166.29 in 2007. 45. Hart was compensated a total of $4,999.92 from public funds for calendar years in which he did not have a Statement of Financial Interests form on file with the Conemaugh Township office. ** 46. David Hart realized a private pecuniary gain of $7,602.61 as a result of the use of his public position as a Conemaugh Township Supervisor as follows: ** a. Payment of excess vacation hours (2004 to 2007) $ 6,619.67 ** b. Mileage $ 192.74 c. Use of Township credit card $ 790.20 ** TOTAL $ 7,602.61 ** [The indicated amount reflects minor mathematical discrepancy(ies) favoring the Respondent. Respondent receives the benefit of the stipulated amount.] III.DISCUSSION: As a Supervisor of Conemaugh Township (“Township”) from January 7, 2002, until December 31, 2007, and Township Secretary/Treasurer from January 5, 2004, until December 31, 2007, Respondent David Hart (hereinafter also referred to as “Respondent,” “Respondent Hart,” and “Hart”) was a public official/public employee subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. The allegations are that Respondent Hart violated Sections 1103(a) and 1104(a) of theEthics Act: (1) when he used the authority of office for private pecuniary benefit by claiming and approving vacation time for himself for more hours than he actually accrued; (2) when he claimed and received reimbursement for mileage on days when he was not working as a Township employee; (3) when he failed to file Statements of Financial Interests (“SFIs”) for the 2004 and 2007 calendar years; and (4) when he used Township issued credit cards to make purchases of a personal nature. 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 Hart, 08-031 Page 16 interest. 65 Pa.C.S. § 1103(a). The term "conflict of interest" is defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official/public employee from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1104(a) of the Ethics Act provides that each public official/public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. 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. The Township is a Second Class Township governed by a three member Board of Supervisors. All three Supervisors and the Township Secretary/Treasurer have signature authority over Township financial accounts. Checks require the signature of the Secretary/Treasurer and one Supervisor. Respondent served as a Township Supervisor from January 7, 2002, until December 31, 2007. Respondent also served as Township Secretary/Treasurer and Roadmaster from January 5, 2004, until December 31, 2007. Respondent’s responsibilities included maintaining Township records documenting the amount of leave utilized by employees and approving his own utilized leave. The parties have stipulated that Respondent was entitled to receive no vacation leave in 2004, 40 hours of vacation leave in 2005, 40 hours of vacation leave in 2006, and 80 hours of vacation leave in 2007. Fact Finding 18. The parties have further stipulated that Respondent received compensation totaling $6,619.67 for excess vacation leave consisting of 30 excess vacation hours in 2004, 120 excess vacation hours in 2005, 100 excess vacation hours in 2006, and 20 excess vacation hours in 2007. Fact Finding 20. In his official capacity as a Township Supervisor, Respondent voted to approve all Hart, 08-031 Page 17 monthly bills that included payments to himself for utilized hours he was absent from work in excess of accrued leave. Respondent participated in approving 18 of the 20 payments issued to him between July 22, 2004, and January 16, 2008. Respondent voted to approve 15 of 20 payroll checks issued to him for time absent from work in excess of accrued vacation time. Respondent voted to approve three of three accounts payable checks for advance pay, representing compensation for time absent from work in excess of accrued leave. As Roadmaster–Secretary/Treasurer, Respondent claimed and received reimbursement from the Township in the total amount of $192.74 for 459 miles purportedly driven in 2005 and 2006 on days that he was documented as being absent from work. Respondent completed and submitted mileage reimbursement reports claiming reimbursement for the aforesaid mileage. Respondent approved his own mileage reimbursement reports. Additionally, the parties have stipulated that Respondent used his public position to charge personal items totaling $1,550.31 to the Township’s MasterCard and Sam’s Club card. Fact Finding 37. Respondent obtained and maintained the Township MasterCard in his capacity as Township Secretary/Treasurer. The card was to be used only to make purchases related to official Township business. From 2005 through 2007, Respondent used the Township MasterCard for personal purchases totaling $1200.62, including meals, vacation expenses, DVD pirating software, beer, an investment program and credit report services that had no relation to Township business. On May 15, 2004, and April 22, 2006, Respondent used the Township Sam’s Club credit card to make purchases of a personal nature totaling $349.69. From January 2004 through December 2007, Respondent, in his official capacity as Township Secretary/Treasurer, received and reviewed MasterCard and Sam’s Club credit card bills, produced and signed checks, and approved bill lists for purchases made by him on both Township issued credit cards. From January 2004 through December 2007, Respondent, in his official capacity as Township Supervisor, voted to approve bill lists that included payments to MasterCard and Sam’s Club for personal purchases made by Respondent. On January 4, 2008, after leaving office, Respondent reimbursed the Township in the amount of $760.11 for some of the personal purchases he had made on the Township MasterCard and Sam’s Club credit card. The remaining balance for such personal purchases is $790.20. The parties have stipulated that Respondent realized a private pecuniary gain of $7,602.61 as a result of the aforesaid uses of his public position as a Township Supervisor, calculated as the sum of the following: (1) $6,619.67 for payment of excess vacation hours from 2004 to 2007; (2) $192.74 for mileage reimbursement for miles not driven; and (3) $790.20 for use of the Township credit card(s) for personal purchases. Fact Finding 46. As for Respondent’s SFIs, on June 16, 2008, an SFI compliance review revealed that no SFI forms were on file with the Township for Respondent for calendar years 2004 and 2007. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. Hart, 08-031 Page 18 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 a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a) occurred when Hart claimed and approved vacation time for more hours than accrued. b. That a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a) occurred in relation to Hart’s use of a Township issued credit card to make personal purchases. c. That a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a) occurred when Hart claimed and received mileage reimbursement for miles not driven. d. That a violation of Section 1104(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1104(a) occurred in relation to Hart’s failure to file Statements of Financial Interests for [the] 2004 and 2007 calendar years. 4. To the extent he has not already done so, Hart agrees to file Statements of Financial Interests for calendar years 2004 and 2007, with … Conemaugh Township, and forward a copy of [sic] to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. Hart agrees to make payment in the amount of $7,852.61 ($7,602.61 for violations of Section 1103(a), and $250.00 for failing to file SFIs) in settlement of this matter payable to … Conemaugh Township and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 6. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 1-2. In considering the Consent Agreement, we agree with the parties that a violation of Section 1103(a) of the Ethics Act occurred when Respondent claimed and approved Hart, 08-031 Page 19 vacation time for more hours than he accrued. Respondent used the authority of his public position(s) when he participated in approving payments to himself for utilized hours he was absent from work in excess of his accrued leave. The resulting private pecuniary benefit to Respondent consisted of compensation totaling $6,619.67 for excess vacation leave in 2004, 2005, 2006, and 2007. Accordingly, we hold that a violation of Section 1103(a) of the Ethics Act occurred when Respondent claimed and approved vacation time for more hours than he accrued. Cf., Arrow, Order 1534; Latkanich, Order 1445; McGraw, Order 1397. We further agree with the parties that a violation of Section 1103(a) of the Ethics Act occurred in relation to Respondent’s use of Township issued credit card(s) to make personal purchases. Respondent used the authority of his public position when he obtained and maintained the Township MasterCard in his capacity as Township Secretary/Treasurer. Although the card was to be used only to make purchases related to official Township business, from 2005 through 2007 Respondent used the card for personal purchases totaling $1200.62. Similarly, Respondent used the Township Sam’s Club credit card to make purchases of a personal nature totaling $349.69. Respondent further used the authority of his public position as Township Secretary/Treasurer when he received and reviewed MasterCard and Sam’s Club credit card bills, produced and signed checks, and approved bill lists for purchases made by him on both Township issued credit cards. Respondent used the authority of his public office as Township Supervisor when he voted to approve bill lists that included payments to MasterCard and Sam’s Club for personal purchases made by him. Following a partial reimbursement, the remaining balance of the private pecuniary benefit Respondent received from using Township credit cards for personal purchases is in the amount of $790.20. We hold that a violation of Section 1103(a) of the Ethics Act occurred in relation to Respondent’s use of Township issued credit card(s) to make personal purchases. Cf., Regola, Order 1517; Melenia, Order 1516; Evans, Order 1457; Pierce, Order 1449; Krisher, Order 1425; Gorr, Order 1423; Cobb, Order 1354 . We accept the recommendation of the parties for a finding that a violation of Section 1103(a) of the Ethics Act occurred when Respondent claimed and received mileage reimbursement for miles not driven. Respondent used the authority of his public position(s) when he claimed and received reimbursement from the Township in the total amount of $192.74 for 459 miles purportedly driven in 2005 and 2006 on days that he was documented as being absent from work. Respondent completed and submitted mileage reimbursement reports claiming reimbursement for the aforesaid mileage. Respondent approved his own mileage reimbursement reports. The resulting private pecuniary benefit to Respondent was in the amount of $192.74. In accepting the parties’ recommendation for the finding of a violation, we are mindful of the judicial decision in Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Commw. Ct. 2004) (holding that a net profit in the amount of $561.77 resulting from business transactions between a township supervisor’s employer and the township would fall within the “de minimis” exclusion to the definition of “conflict of interest”). If the parties had not determined to enter into a Consent Agreement, we could have been presented with factual and legal issues as to whether, under the circumstances of this case, Bixler Hart, 08-031 Page 20 would apply as to the aforesaid private pecuniary benefit in the amount of $192.74. However, given: (1) that the parties have entered into a comprehensive Consent Agreement with benefit of legal counsel; and (2) the parties are in agreement that a violation of Section 1103(a) as to Respondent’s claimed reimbursement for miles not driven would be appropriate as part of an overall settlement of this case, we shall accept the parties’ proposed disposition. We note that this determination in this case based upon the agreement of the parties should not be considered as precedent for other cases, which would be determined based upon their own facts and circumstances. Accordingly, we hold that a violation of Section 1103(a) of the Ethics Act occurred when Respondent claimed and received mileage reimbursement for miles not driven. Finally, we hold that a violation of Section 1104(a) of the Ethics Act occurred in relation to Respondent’s failure to file SFIs for the 2004 and 2007 calendar years. As part of the Consent Agreement, Respondent has agreed to make payment in the amount of $7,852.61 payable to Conemaugh Township and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. To the extent he has not already done so, Respondent has further agreed to file with the Township SFIs for calendar years 2004 and 2007 and to forward copies of such filings to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. We determine that the Consent Agreement submitted by the parties sets forth a proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, per the Consent Agreement of the parties, Respondent is directed to make payment in the amount of $7,852.61 payable to Conemaugh Township and th forwarded to this Commission by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. To the extent he has not already done so, Respondent is directed to file with the Township SFIs for calendar years 2004 and 2007 and to forward copies of such filings to th this Commission by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV.CONCLUSIONS OF LAW: 1. As a Supervisor of Conemaugh Township (“Township”) from January 7, 2002, until December 31, 2007, and Township Secretary/Treasurer from January 5, 2004, until December 31, 2007, Respondent David Hart (“Hart”) was a public official/public employee subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. 2. Hart violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he claimed and approved vacation time for more hours than he accrued. 3. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Hart’s use of Township issued credit card(s) to make personal purchases. Hart, 08-031 Page 21 4. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Hart claimed and received mileage reimbursement for miles not driven. 5. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred in relation to Hart’s failure to file Statements of Financial Interests for the 2004 and 2007 calendar years. In Re: David Hart, : File Docket: 08-031 Respondent : Date Decided: 12/15/09 : Date Mailed: 12/29/09 ORDER NO. 1540 1. David Hart (“Hart”), a public official/public employee in his capacities as a Supervisor of Conemaugh Township (“Township”) from January 7, 2002, until December 31, 2007, and Township Secretary/Treasurer from January 5, 2004, until December 31, 2007, violated Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), when he claimed and approved vacation time for more hours than he accrued. 2. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Hart’s use of Township issued credit card(s) to make personal purchases. 3. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Hart claimed and received mileage reimbursement for miles not driven. 4. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred in relation to Hart’s failure to file Statements of Financial Interests (“SFIs”) for the 2004 and 2007 calendar years. 5. Per the Consent Agreement of the parties, Hart is directed to make payment in the amount of $7,852.61 payable to Conemaugh Township and forwarded to the th Pennsylvania State Ethics Commission by no later than the thirtieth (30) day after the mailing date of this Order. 6. To the extent he has not already done so, Hart is directed to file with the Township SFIs for calendar years 2004 and 2007 and to forward copies of such filings to the th Pennsylvania State Ethics Commission by no later than the thirtieth (30) day after the mailing date of this Order. 7. Compliance with Paragraphs 5 and 6 of this Order will result in the closing of this case with no further action by this Commission. a. Non-compliance will result in the institution of an order enforcement action. BY THE COMMISSION, ___________________________ Louis W. Fryman, Chair