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HomeMy WebLinkAbout1544 Kaltenbaugh In Re: Jack Kaltenbaugh, : File Docket: 08-052 Respondent : X-ref: Order No. 1544 : 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.” An Answer was filed and a hearing was requested. 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. Kaltenbaugh, 08-052 Page 2 I.ALLEGATIONS: That Jack Kaltenbaugh, a public official/public employee in his capacity as a Supervisor of Connoquenessing Township, Butler 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 participated in actions of the Board of Supervisors to appoint him to the position of Township Code Enforcement Officer; when, as Township Code Enforcement Officer, he used his position to obtain a private pecuniary benefit for himself and a member of his immediate family by dismissing code enforcement actions and fines levied against him and his brother for property they jointly own; when, as a Supervisor acting as Township Roadmaster, [he] claimed on time sheets hours for compensation that he did not work; and when he failed to file a Statement of Financial Interests form for the 2007 calendar year by March [sic] 1, 2008. II.FINDINGS: 1.Jack Kaltenbaugh has served as an elected Supervisor of Connoquenessing Township, Butler County since January 7, 2008. a. Kaltenbaugh has served as Vice-Chairman from January 2008 to present. b. Kaltenbaugh has served as Roadmaster from January 2008 to present. c. Kaltenbaugh served as Code Enforcement Officer from January 2008 to December 2008. 2. Kaltenbaugh served as an elected Supervisor in two prior consecutive terms from January 6, 1992, to December 31, 2003. a. Kaltenbaugh served as Chairman of the Board from 1999 - 2003. b. Kaltenbaugh served as Vice-Chairman of the Board from 1992 – 1998. 3. Connoquenessing Township (Township) is governed by a three member Board of Supervisors. a. Supervisors hold legislative meetings on the first Wednesday of each month at 7:00 p.m. b. Executive sessions occur at the end of legislative meetings as necessary. c. Supervisors hold special meetings as necessary. 4. Supervisors are compensated $156.25 (gross) and $137.93 (net) monthly for their service. a. Attendance at the monthly board meeting is not required to receive the monthly stipend. 5. Board voting procedures occur in roll call fashion after a motion is made and seconded. a. All objections and abstentions are noted in the minutes. 1. The minutes of each meeting are approved for accuracy at each subsequent meeting. Kaltenbaugh, 08-052 Page 3 6. Supervisors receive bill lists moments before monthly meetings which are approved for payment at the regular monthly meetings. a. Bill lists represent invoices received since the previous monthly meeting that have not yet been paid by the Township. b. Supervisor and payroll payments are itemized on the bill lists. 7. All three Supervisors and the Secretary/Treasurer maintain signature authority. a. Two signatures are required on all Township issued checks. 1. Facsimile stamps are not utilized. b. Three signatures were required on all Township issued checks prior to January 2008. THE FOLLOWING FINDINGS RELATE TO THE ALLEGATION[S] THAT KALTENBAUGH PARTICIPATED IN BOARD OF SUPERVISORS ACTIONS RESULTING IN HIS APPOINTMENT TO THE POSITION OF CODE ENFORCEMENT OFFICER AND WHEN HE DISMISSED CODE ENFORCEMENT ACTIONS AGAINST HIM AND HIS BROTHER. 8. The position of Code Enforcement Officer (CEO) was created at the Board of Supervisors meeting on February 10, 1998, by the ratification of Ordinance No. 61. a. Section 502, Duties of the Code Enforcement Officer, sets performance expectations for the office. 1. The CEO is to investigate alleged violations of provisions of the Connoquenessing Township Code of Ordinances, send notices to violators and subsequently prosecute offenders in the name of the Township. b. Appeals of CEO actions are heard by the Board of Supervisors. 1. Appeals must be filed within 10 days of the date of the violation notice. c. Kaltenbaugh was a member of the Board at the time Ordinance No. 61 was enacted. 9. The CEO position has traditionally been filled by a third party appointed by the Board of Supervisors. a. The CEO position is an annual appointment. b. The CEO’s compensation is set annually by the Supervisors. 10. Township Ordinance No. 2005-73, enacted on September 5, 2005, specifies public nuisance violations within the Township and the consequences of failing to maintain property and buildings within the set standards. a. Section 102 addresses Motor Vehicle Prohibitions and specifies that tires lying in the open could permit vermin harborage and are prohibited. b. Section 105 entitled Yards, Open Lots, Parking Areas, documents that the Kaltenbaugh, 08-052 Page 4 accumulation of refuse and hazards is prohibited. c. Section 112 outlines a property owner’s responsibility to comply with the provisions outlined within the ordinance. d. Section 114 provides explanation of penalties assessed to code violators. 1. Conviction of a code violation will result in a fine not to exceed $1000.00 and /or imprisonment not to exceed 90 days. 2. Each day an offense continues is considered a separate violation. e. Section 115 states that in cases where a property has more than one owner, that each owner is individually responsible and shall be equally prosecuted. 11. On February 2, 2006, then Township Road Crew Superintendent William Chuba was directed by the Board to compile a list of properties in violation of Ordinance 2005-73. a. Stephen Misko, then Chairman of the Board, directed Chuba to create a record as a result of then CEO Ben Spangler failing to enforce violations of Ordinance 2005-73. 12. Kaltenbaugh owns property with his brother Ronald Kaltenbaugh located at 184 Stevenson Road, Renfrew, PA 16053. a. Property owned by Kaltenbaugh appeared on the list of properties compiled by Chuba as having violated Ordinance 2005-73. b. Nuisances found on Kaltenbaugh’s property included, “junk, tires, and hazardous materials.” 13. On April 27, 2006, the Board of Supervisors informed Spangler by letter that on March 1, 2006, they approved a list of properties to inspect for alleged violations of Ordinance 2005-73. a. The listing provided to Spangler was generated by the Supervisors based upon Chuba’s findings. b. Kaltenbaugh’s property was included on the list for inspection the Board provided to Spangler. c. Kaltenbaugh was never cited by Spangler for alleged property violations as noted in Chuba’s listings. d. Spangler resigned as CEO on or about July 11, 2007, but did not take action against the properties noted in the Board’s letter to him. 14. Shawn Gramz was appointed to the Township CEO position in August 2007. a. Gramz entered into a contract with the Township to provide CEO services, effective August 1, 2007, through December 31, 2007. 1. The contract was signed by Township Supervisors Misko, Ray Kroll, and Evelyn Hockenberry. b. Gramz was authorized by the Board to take a proactive stance in generating Kaltenbaugh, 08-052 Page 5 complaints rather than a reactive stance investigating property violations after the Township received a complaint. 1. Supervisor Hockenberry was not in favor of the proactive approach advocated by the majority of the Board. 15. The standard procedure followed by the Township for violations of Ordinance 61 was as follows during Gramz’s tenure as CEO from August 2007 until he was replaced in January 2008: a. Complaints are initiated by written notice sent to the Township or by observation of Township employees and officials, including the CEO. b. Upon receipt of a complaint or becoming aware of a potential violation the CEO will notify the property owner in writing by registered mail of the nature of the code violations. 1. The CEO will discuss the violations with the property owner in an attempt to resolve the code violations. c. Property owners have (10) days from the date of the written notice to request an appeal to the township supervisors. 1. If no response is received, either orally or in writing, the CEO will send a second letter giving final notice to a property owner to correct the code violations. d. If no response is received by the CEO from the property owner, the CEO presents the violations to the Board of Supervisors and obtains permission from the Board to file a complaint with the District Magistrate. 1. If authorized by the Board citations are filed by the CEO with the Magistrate. 2. Fines can be levied by the Magistrate if violations are documented after hearing or guilty plea by the property owner. 16. Kaltenbaugh was notified by certified letter from Gramz on August 13, 2007, that violations existed on his property following an inspection by Gramz. a. Kaltenbaugh accepted service of the violation notice on August 18, 2007. b. The notice gave an August 24, 2007, deadline to commence steps toward compliance to the alleged violations listed below: Violation Requirements Not Met Ordinance/Section # Motor Vehicle Prohibited Bus/Trucks/Trailers Ord 73. Chapter 10. Sect 102 Permitting Storage Multi Vehicles Ord 73. Chapter 10. Sect 103 Yards, Lots, Parking Accumulation of Refuse, High Grass Ord 73. Chapter 10. Sect 105 c. Kaltenbaugh was required to complete all necessary corrections to the property by September 15, 2007. d. At the time the notice letter was sent to Kaltenbaugh, he had won the Primary Election for a position on the Board of Supervisors and was on the ballot for [the] November 2007 General Election. Kaltenbaugh, 08-052 Page 6 17. Kaltenbaugh appealed the notice to the Board on September 14, 2007. a. Kaltenbaugh’s appeal was denied by the Board because it was not filed timely. 1. Appeals must be filed with the Township within ten days of the date documented on the violation notice. 2. The appeal deadline was August 23, 2007. b. Kaltenbaugh’s appeal was dated September 14, 2007, and received by the Township on September 15, 2007. 18. Kaltenbaugh was notified via certified correspondence from Gramz dated October 4, 2007, that a written response of his intent to comply with Ordinance 2005-73 would be required by October 19, 2007, or legal action could be taken by October 22, 2007. a. The notice documented that Kaltenbaugh’s failure to respond to the CEO’s correspondence could result in charges at the local magistrate. b. Kaltenbaugh, via his Secretary, responded by email to the Township expressing his intent to rectify the situation with the Township and Gramz. c. A meeting was scheduled between Kaltenbaugh and Gramz for October 31, 2007. d. Kaltenbaugh later requested that the October meeting be rescheduled for November 8, 2007, the day after Election Day. 1. Kaltenbaugh was a candidate for Connoquenessing Township Supervisor during the General Election. aa. Kaltenbaugh had defeated incumbent Supervisor Ray Kroll during the Primary. 2. Kaltenbaugh was “Supervisor-elect” as of November 7, 2007. 19. Gramz and the Kaltenbaughs met on November 8, 2007, to discuss the violations outlined within the notices sent to Kaltenbaugh. a. Gramz met with Kaltenbaugh and Kaltenbaugh’s brother. b. Kaltenbaugh agreed to “clean up” his property at conclusion of his meeting with Gramz. c. Kaltenbaugh did not clean-up his property and the property remained in violation of Township Ordinances as of December 27, 2007. 20. Gramz and Supervisor Misko informally discussed trying to work with Kaltenbaugh to resolve the ordinance violations on his property. a. The Township has in the past attempted to work with property owners to resolve ordinance violations prior to initiating any legal action. b. The Board also wanted to avoid the embarrassment of an incoming member of the Board of being found in violation of a Township Ordinance. Kaltenbaugh, 08-052 Page 7 1. Kaltenbaugh would be taking office as a Supervisor effective January 2008. 21. At the December 27, 2007, regular Supervisors meeting, Gramz requested direction from the Board on filing citations against Township residents, including Kaltenbaugh, for Ordinance 2005-73 violations. a. A motion was made by Supervisor Misko to file citations against four residents or businesses, including Kaltenbaugh. 1. Supervisor Knoll [sic] stated the citation for Kaltenbaugh should only reflect the junk vehicles. 2. Gramz noted he would only write citations as the Board directs. b. Kroll seconded Misko’s motion. c. Supervisor Hockenberry did not vote to issue a citation to Kaltenbaugh. d. The motion was approved by the Board. 22. Gramz prepared Commonwealth of Pennsylvania Non-Traffic Citations [Nos.] P6103239-2 and P6103240-3 for the ordinance violations at Kaltenbaugh’s property. a. The citations were completed by Gramz prior to the December 27, 2007, regular Supervisors meeting. 1. Gramz signed the citations on December 28, 2007, after receiving approval from the Board of Supervisors to proceed with the filing of citations. 23. On December 28, 2007, Kaltenbaugh contacted Gramz requesting a meeting to discuss the citations. a. Kaltenbaugh met Gramz at the Township building parking lot on December 28, 2007. 1. Kaltenbaugh appealed to Gramz for one final extension to clean his property. aa. Kaltenbaugh assured Gramz he would clean up his property. 2. Gramz agreed to grant Kaltenbaugh a 30 day extension. 3. Gramz did not file the citations as was approved by the Board as a result of Kaltenbaugh’s request. 24. On December 28, 2007, Gramz filed citations with the local Magistrate as approved by the Supervisors against all property owners with alleged violations, with the exception of Kaltenbaugh. a. Gramz did not file citations against Kaltenbaugh with the local Magistrate as a result of the extension he agreed to with Kaltenbaugh. 25. On December 30, 2007, Gramz submitted a letter of interest to the Township Kaltenbaugh, 08-052 Page 8 requesting reappointment to the CEO position. a. No other individuals expressed interest in the position of CEO for 2008. b. Gramz’s contract as the Township CEO expired on December 31, 2007. 26. Prior to the January 2008 Re-organization Meeting of the Board of Supervisors, Kaltenbaugh and Hockenberry discussed the reappointment of Gramz. a. Kaltenbaugh informed Hockenberry of his displeasure with Gramz for the nature of his enforcement of the code ordinance. 1. At the time, ordinance violations were pending against Kaltenbaugh. 2. Kaltenbaugh was opposed to reappointing Gramz. 27. During the January 7, 2008, reorganization meeting the Board made numerous appointments, including Code Enforcement Officer. a. A motion was made by Hockenberry, seconded by Kaltenbaugh to appoint Estel Harp as Township CEO. 1. The motion was approved by a 2 to 1 vote with Supervisor Misko opposing. b. Harp had not been an applicant for the position. 1. Harp was approached by Hockenberry approximately one week prior to the reorganization meeting regarding his interest in the CEO position. 2. Hockenberry informed Harp that Gramz wrote out citations without Board approval and would not be reappointed. 3. Harp agreed to accept the position if no one else was interested. 28. At the January 9, 2008, regular meeting of the Board Hockenberry advised the Board that she wanted to revise her motion concerning the CEO made during the January 7, 2008, re-organization meeting. a. It was Hockenberry’s and Kaltenbaugh’s intent to rescind the appointment of Harp as CEO and replace him with Hockenberry and Kaltenbaugh. 29. Minutes of [the] January 9, 2008, Board of Supervisors meeting contain the following regarding actions taken to rescind the appointment of Harp as CEO: Hockenberry stated that she would like to revise the motion from the re-organization meeting that appointed Estel Harp as the Code Enforcement Officer in error and appoint Jack Kaltenbaugh and Evelyn Hockenberry. Misko asked if the current Code Enforcement Officer would have to resign. Attorney Hawk stated that a motion would be required to remove the current Code Enforcement Officer and appoint a new one. Misko asked Hockenberry and Kaltenbaugh if they would be paid for the position, Hockenberry stated no that this would be part of their Supervisor duties. Misko asked Solicitor Hawk if it would be legal to hold both an elected and an Kaltenbaugh, 08-052 Page 9 appointed position. Solicitor Hawk stated it would be legal until somebody took it to court and proves that it isn’t. Hockenberry made a motion to terminate Estel Harp as the Code Enforcement Officer and appoint Jack Kaltenbaugh and Evelyn Hockenberry as the Code Enforcement Officer, seconded by Kaltenbaugh. Roll call Hockenberry yes, Kaltenbaugh yes, Misko opposed due to the fact of the conflict of interest and the liability to the Township and not sure that under the second class Township Code this can be done. 30. Prior to Kaltenbaugh’s and Hockenberry’s appointment the Township CEO position had been held by a contracted professional experienced in enforcing code ordinances. a. The CEO has historically not been a Township Supervisor. 31. Immediately after his appointment to the CEO position, at the January 9, 2008, meeting, Kaltenbaugh seconded Hockenberry’s motion to dismiss all charges and notices sent by the former CEO which did not originate from a written complaint, which included the citations Gramz prepared against him. a. The motion passed 2 - 1 with Kaltenbaugh casting the deciding vote. 1. Supervisor Misko voted against the motion. 32. Minutes of [the] January 9, 2008, Board of Supervisors meeting confirm Kaltenbaugh’s actions to dismiss code violations, which include those pending against him: Motion made by Hockenberry to dismiss all of the charges and notices sent by the former Code Enforcement Officer, that did not receive a written complaint, seconded by Kaltenbaugh. Roll call Hockenberry yes, Kaltenbaugh yes, Misko opposed stating that this is action is telling the Township that it is ok to have junk, debris and abandoned vehicles, undoing everything that has been done in the last 6-8 months. 33. The citations prepared by Gramz were never filed with the Magisterial District Court. a. Both citations remain in Township records and are marked “VOID” across the fronts of the citations. 1. Citation No. P6103239-2 documents “VOID 12/28/07” across the front. 2. Citation No. P6103240-3 documents “VOID 12/27/07” across the front. b. The handwriting “VOID 12/27/07” and “VOID 12/28/07” on the citations is not Gramz’s. 34. At the February 6, 2008, Supervisors meeting, Misko stated that Title 53 of Pennsylvania Statute 10614 prohibits Zoning Officers from holding elected office and that the position of Zoning Officer is commensurate with that of CEO. a. Misko noted that [the] Second Class Township Code also prohibits holding an elected and appointed office. Kaltenbaugh, 08-052 Page 10 b. Misko brought this information to the Board to question Kaltenbaugh’s and Hockenberry’s appointments as CEOs. 1. Misko is an attorney. 35. Pennsylvania Second Class Township Code, Article IV addresses the Election of Officers and Vacancies in Office and notes the following in Section 403 entitled “Supervisors”: “Except as otherwise provided in this act, no supervisor shall at the same time hold any other elective or appointive township office or position.” 36. Kaltenbaugh’s participation in dismissing all prior CEO actions effectively halted all investigative and enforcement steps on Kaltenbaugh’s property. a. Twelve days prior to his January 9, 2008, vote, Kaltenbaugh requested a thirty day extension from Gramz to reach compliance on his code violations. 1. This enabled Kaltenbaugh to delay charges being filed by Gramz until Kaltenbaugh took office and participated in the Board decisions to dismiss all violations, including those filed against him. b. Kaltenbaugh as co-CEO has not pursued further inspections related to Ordinance No. 2005-73 in relation to violations on Kaltenbaugh’s property. c. Kaltenbaugh has not corrected the ordinance violations on his property. 37. Penalties were levied by the District Magistrate for citations authorized by the Board for written complaints. a. Penalties levied included fines and costs for Permitted Storage of Motor Vehicles and Motor Vehicles Prohibited. b. The fines for those violations as levied by the District Magistrate were as follows: Prohibited Storage of Motor Vehicles $212.60 Motor Vehicles Prohibited $205.80 38. The citations prepared by Gramz to be filed against Kaltenbaugh were for Prohibited Storage of Motor Vehicles and Motor Vehicles Prohibited. 39. The District Magistrate hears cases filed by the CEO related to alleged violations of Township Ordinances and Codes. a. Typically, the Magistrate affords residents thirty to sixty days to reach compliance. b. The Magistrate may fine a violator from $0.00 to $1,000.00 and up to 90 days imprisonment, depending upon the circumstances for violations similar to violations alleged in Gramz’s citations P6103239 and P6103240 filed against Kaltenbaugh. 1. The violator may also be responsible for applicable court costs and Township legal fees in the minimum amount of $122.00. Kaltenbaugh, 08-052 Page 11 aa. Exceptions could exist when the Defendant can demonstrate a financial hardship or is found Not Guilty. 40. Kaltenbaugh realized a financial gain of at least $418.40 by participating in [the] Board’s action to halt the filing of citations against him at the local Magistrate. a. Kaltenbaugh participated in the vote to dismiss charges and notices at the time that Ordinance violations had been documented against him. b. Kaltenbaugh delayed enforcement until after he took office and participated in the Board actions resulting in the former CEO not being reappointed. c. But for Kaltenbaugh’s participation in appointing himself CEO, Kaltenbaugh would have had citations filed against him. 1. Kaltenbaugh voted to appoint himself CEO for 2008 at the time that Gramz, the former CEO, had documented alleged violations on Kaltenbaugh’s property. d. Kaltenbaugh never brought his property [into] compliance with the Township Ordinances. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT KALTENBAUGH, AS A TOWNSHIP SUPERVISOR, ACTING IN THE CAPACITY OF ROADMASTER, CLAIMED HOURS HE DID NOT WORK ON TIMESHEETS FOR COMPENSATION. 41. Connoquenessing Township employs a Road Crew consisting of three full time employees. 42. The Road Crew is supervised by the Roadmaster. a. In 2008 Kaltenbaugh and Supervisor Hockenberry held the position of Roadmasters. 43. Road Crew employees utilize a time clock and timesheets to track their hours worked. 44. The Roadmaster is required to complete time sheets documenting a description of work completed and the number of hours associated with each task. a. The Roadmaster reviews and approves his time sheets before submitting them to the Secretary/Treasurer for payment. b. The Roadmaster is not required to utilize a time clock. 45. As Roadmaster since January 2008, Kaltenbaugh is not required to work a predetermined number of hours at any set time. a. Kaltenbaugh regularly completed timesheets claiming hours worked each pay period. 1. Kaltenbaugh would claim hours on timesheets for meeting with road workers and inspecting Township roads. 46. Township employees confirmed that Kaltenbaugh typically meets with the Road Crew workers at the Township building prior to the beginning of their regular shift to discuss work to be completed. Kaltenbaugh, 08-052 Page 12 a. On occasion, Kaltenbaugh visits job sites to check on the progress of the Road Crew. b. Kaltenbaugh regularly travels Township roads to review the conditions of Township roads for maintenance reasons. 47. Roadmaster time sheets submitted by Kaltenbaugh on file with the Township document that Kaltenbaugh regularly claimed ninety minutes worked for “checking on the men.” a. “Checking on the men” routinely consisted of Kaltenbaugh driving to a work site in his personal work vehicle and asking the workers how the projects were proceeding. b. Township roads are checked approximately twice annually, as part of Supervisor duties. 48. Kaltenbaugh was paid a total of $4,608.00 for 275.5 hours claimed in 2008. * a. Kaltenbaugh’s rate of pay in 2008 was $16.50/hour. * [Cf., Fact Finding 49 a.] 1. Kaltenbaugh was mistakenly paid $20.00/hour in May 2008 for (18) hours worked. 2. Kaltenbaugh claimed (20) hours worked, but was compensated for (18) hours. b. The balance of hours claimed (257.5) was paid at the rate of $16.50/hour. 49. Kaltenbaugh was paid a total of $2,853.00 for 158.5 [hours] claimed from January 2009 through July 2009. * a. Kaltenbaugh’s rate of pay in 2008 was $18.00/hour. * [Cf., Fact Finding 48 a.] 50. William Chuba and Dan McGee, road crew workers, maintained a logbook tracking hours they observed Kaltenbaugh working. a. Many of the hours Chuba and McGee observed and recorded Kaltenbaugh working were consistent with what Kaltenbaugh claimed on Township timesheets. b. When compared to each other, the logbooks maintained by Chuba and McGee were inconsistent among each other with regard to the recorded hours that Kaltenbaugh had worked. 51. Insufficient evidence exists to support the allegation that Kaltenbaugh claimed time sheet hours for compensation that he did not work. 52. In a sworn statement provided to Commission Investigators on September 1, 2009, Kaltenbaugh provided the following information: a. Kaltenbaugh knew Gramz was authorized to file citations with the Magistrate Kaltenbaugh, 08-052 Page 13 for code violations at his property when Kaltenbaugh voted on January 9, 2008, to dismiss all charges and notices sent by the prior CEO, which did not originate from a written complaint. b. Kaltenbaugh was aware of his requirement to file a Statement of Financial Interest[s] but failed to file as a result of Township administrative employees resigning. 1. Township administrative employees resigned on April 1, 2008. THE FOLLOWING FINDINGS RELATE TO KALTENBAUGH FAILING TO FILE STATEMENTS OF FINANCIAL INTERESTS FOR THE 2007 CALENDAR YEAR. 53. Statement of Financial Interests filing requirements for public officials and public employees are set forth via Section 1104(a) of the Public Official and Employee Ethics Act. st a. Kaltenbaugh is required to file Statements of Financial Interests by May 1 annually in his position as a Connoquenessing Township Supervisor. 54. Statements of Financial Interests for Connoquenessing Township public officials are distributed by the Township Secretary. a. Forms are annually distributed to Kaltenbaugh for completion. b. Completed forms are returned to the Secretary and maintained in the Township building. 55. A Statement of Financial Interests compliance review for Connoquenessing Township was conducted by the Investigative Division on September 12, 2008, and confirmed the following regarding Statements of Financial Interests on file for Kaltenbaugh: Calendar Year Date Filed 2007 None Filed 2008 01/08/09 a. No Statement of Financial Interests for the 2007 calendar year was on file for Kaltenbaugh with Connoquenessing Township. b. As of September 10, 2009, Connoquenessing Township had no calendar year 2007 Statement of Financial Interests on file from Kaltenbaugh. 1. A Statement of Financial Interests for calendar year 2007 was required to be filed by May 1, 2008. III.DISCUSSION: As a Supervisor of Connoquenessing Township (“Township”) since January 7, 2008, and Township Code Enforcement Officer (“CEO”) from January 2008 to December 2008, Respondent Jack Kaltenbaugh (hereinafter also referred to as “Respondent,” “Respondent Kaltenbaugh,” and “Kaltenbaugh”) 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 Kaltenbaugh violated Sections 1103(a) and Kaltenbaugh, 08-052 Page 14 1104(a) of the Ethics Act: (1) when he participated in actions of the Township Board of Supervisors (“Board”) to appoint him to the position of Township CEO; (2) when, as Township CEO, he used his position to obtain a private pecuniary benefit for himself and a member of his immediate family by dismissing code enforcement actions and fines levied against him and his brother for property they jointly own; (3) when, as a Supervisor acting as Township Roadmaster, he claimed on time sheets hours for compensation that he did not work; and (4) when he failed to file a Statement of Financial Interests (“SFI”) form for the 2007 calendar year by May 1, 2008. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities (a)Conflict of interest.— No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The term "conflict of interest" is defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private 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. Respondent has served as a Township Supervisor since January 7, 2008. Respondent has served as a Township Roadmaster from January 2008 to present. Respondent served as Township CEO from January 2008 to December 2008. Kaltenbaugh, 08-052 Page 15 The Board consists of three Members. Supervisors are compensated $156.25 (gross) and $137.93 (net) monthly for their service. The Township CEO is appointed annually by the Board. The duties of the CEO include investigating alleged violations of provisions of the Township Code of Ordinances, sending notices to violators and subsequently prosecuting offenders in the name of the Township. Appeals of CEO actions are heard by the Board. Appeals must be filed within 10 days of the date of the violation notice. Township Ordinance No. 2005-73, enacted on September 5, 2005, specifies public nuisance violations within the Township. Conviction of a code violation will result in a fine not to exceed $1,000.00 and/or imprisonment not to exceed 90 days. Each day an offense continues is considered a separate violation. The Ordinance states that in cases where a property has more than one owner, each owner is individually responsible and shall be equally prosecuted. Respondent and his brother, Ronald Kaltenbaugh, own property located at 184 Stevenson Road, Renfrew, PA 16053 (“the Property”). In 2006, the Property was included on a list of properties potentially in violation of Ordinance 2005-73. Nuisances found on the Property included, “junk, tires, and hazardous materials.” However, the individual serving as Township CEO at that time did not take action against Respondent/the Property. In 2007, Respondent won the Primary Election for a position on the Board and was on the ballot for the November 2007 General Election. In August 2007 a new CEO, Shawn Gramz (“Gramz”), was appointed by the Board to provide CEO services effective August 1, 2007, through December 31, 2007. In August 2007 Gramz notified Respondent by certified letter that violations existed on the Property. Per the notice letter, Respondent was required to complete all necessary corrections to the Property by September 15, 2007. Respondent filed an appeal with the Board, which was denied as untimely. By certified correspondence from Gramz dated October 4, 2007, Respondent was notified that a written response of his intent to comply with Ordinance 2005-73 would be required by October 19, 2007, or legal action could be taken by October 22, 2007. Respondent indicated his intent to rectify the situation, and a meeting was scheduled between Respondent and Gramz for October 31, 2007. At Respondent’s request, the meeting was rescheduled for November 8, 2007, the day after Election Day. Respondent won the election. On November 8, 2007, Gramz, Respondent, and Respondent’s brother met and Respondent agreed to “clean up” the Property. However, Respondent did not clean-up the Property, and the Property remained in violation of Township Ordinances as of December 27, 2007. At the December 27, 2007, regular Board meeting, a motion was made by Supervisor Misko to file citations against four residents or businesses, including Respondent. Supervisor Kroll seconded Misko’s motion. The motion was approved, although Supervisor Evelyn Hockenberry (“Hockenberry”) did not vote to issue a citation to Respondent. On December 28, 2007, Gramz signed Commonwealth of Pennsylvania Non-Traffic Citations for the ordinance violations at the Property. On that same day, Respondent contacted Gramz requesting a meeting to discuss the citations. Respondent met Gramz at Kaltenbaugh, 08-052 Page 16 the Township building parking lot on December 28, 2007. Respondent appealed to Gramz for one final extension to clean the Property. Respondent assured Gramz that he would clean up the Property. Gramz agreed to grant Respondent a 30 day extension. Gramz did not file the citations against Respondent as a result of Respondent’s request. Gramz’s contract as Township CEO expired on December 31, 2007. Prior to the January 2008 Re-organization Meeting of the Board, Respondent informed Hockenberry of his displeasure with Gramz for the nature of his enforcement of the code ordinance. Respondent was opposed to reappointing Gramz. During the January 7, 2008, reorganization meeting of the Board, a motion was made by Hockenberry and seconded by Respondent to appoint Estel Harp (“Harp”) as Township CEO. The motion was approved by a 2 to 1 vote with Supervisor Misko opposing the motion. Two days later, at the January 9, 2008, regular meeting of the Board, Hockenberry made a motion to terminate Estel Harp as the CEO and appoint herself and Respondent as the CEO. Hockenberry indicated that she and Respondent would not be compensated for serving in the CEO position and that it would be part of their Supervisor duties. Respondent seconded the motion. Respondent and Hockenberry voted in favor of the motion. Supervisor Misko voted against the motion. Immediately after his appointment to the CEO position, at the January 9, 2008, meeting, Respondent seconded Hockenberry’s motion to dismiss all charges and notices sent by the former CEO that did not originate from a written complaint, which included the citations Gramz prepared against Respondent. The motion passed 2 - 1 with Respondent casting the deciding vote. Supervisor Misko voted against the motion. The citations prepared by Gramz were never filed with the Magisterial District Court. Both citations remain in Township records and are marked “VOID.” Respondent as co- CEO did not pursue further inspections related to Ordinance No. 2005-73 in relation to violations on the Property. Respondent’s participation in dismissing all prior CEO actions effectively halted all investigative and enforcement steps on the Property. The parties have stipulated that Respondent realized a financial gain of at least $418.40 by participating in the Board’s action to halt the filing of citations against him at the local Magistrate. Respondent participated in the vote to dismiss charges and notices at the time that Ordinance violations had been documented against him. Respondent delayed enforcement until after he took office and participated in the Board actions resulting in the former CEO not being reappointed. But for Respondent’s participation in appointing himself CEO, Respondent would have had citations filed against him. Respondent never brought his property into compliance with the Township Ordinances. In addition to the above, Respondent has served as a Township Roadmaster from January 2008 to present. As Roadmaster, Respondent regularly completed time sheets claiming hours worked each pay period. The parties have stipulated that insufficient evidence exists to support the allegation that Respondent claimed hours on his time sheets that he did not work. As for Respondent’s SFIs, an SFI compliance review conducted by the Investigative Division on September 12, 2008, confirmed that no SFI was on file for Respondent for calendar year 2007. As of September 10, 2009, the Township still had no calendar year 2007 SFI on file for Respondent. An SFI for calendar year 2007 was required to be filed by May 1, 2008. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. Kaltenbaugh, 08-052 Page 17 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. A violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a) occurred when Kaltenbaugh participated in actions of the Board of Supervisors to appoint himself to the position of Township Code Enforcement Officer. b. A violation of Section 1103(a) of the Ethics Act occurred when Kaltenbaugh, as Township Code Enforcement Officer, used his position to obtain a private pecuniary benefit for himself and a member of his immediate family by dismissing code enforcement actions and fines levied against him and his brother for property they jointly own. c. No violation of Section 1103(a) of the Ethics Act occurred when Kaltenbaugh, as a Supervisor acting as Township Roadmaster, claimed on time sheets hours for compensation that he did not work, in that there is insufficient evidence to support this violation. d. A violation of Section 1104(a) of the Ethics Act occurred when Kaltenbaugh failed to file a Statement of Financial Interests for the 2007 calendar year by March [sic] 1, 2008. 4. Kaltenbaugh agrees to make payment in the amount of $500.00 in settlement of this matter payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. Kaltenbaugh agrees to file a Statement of Financial Interests for calendar year 2007, disclosing all required information as appropriate with Connoquenessing Township within thirty (30) days of the issuance of the final adjudication in this matter. Copies of said forms shall be forwarded to the State Ethics Commission for compliance verification purposes. 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. Kaltenbaugh, 08-052 Page 18 Consent Agreement, at 1-2. In considering the Consent Agreement, we accept the parties’ recommendation for a finding that a violation of Section 1103(a) of the Ethics Act occurred when Respondent participated in actions of the Board to appoint himself to the position of Township CEO. Respondent used the authority of his public office as a Township Supervisor when, at the January 9, 2008, regular meeting of the Board, he seconded the motion and voted in favor of appointing himself and Hockenberry to the position of CEO. Based upon the Stipulation of Findings, the position of Township CEO was an appointive Township office or position that was incompatible with the position of Township Supervisor. The Second Class Township Code provides: “Except as otherwise provided in this act, no supervisor shall at the same time hold any other elective or appointive township office or position.” 53 P.S. § 65403(b). Although the Stipulation of Findings does not indicate that Respondent received compensation for serving as CEO, he did receive compensation for serving as a Township Supervisor at the same time he was holding the incompatible position of Township CEO. Accordingly, we hold that a violation of Section 1103(a) of the Ethics Act occurred when Respondent participated in actions of the Board to appoint himself to the position of Township CEO. We accept the recommendation of the parties for a finding that a violation of Section 1103(a) of the Ethics Act occurred when Respondent used his public position to obtain a private pecuniary benefit for himself and a member of his immediate family by dismissing code enforcement actions subject to fines that would otherwise have been levied against him and his brother for property they jointly own. By securing the position of CEO, Respondent placed himself in a position to avoid enforcement of Township Ordinance No. 2005-73 against himself and his brother as to the Property. But for Respondent’s participation in appointing himself CEO, Respondent would have had citations filed against him. Immediately after being appointed to the CEO position, at the January 9, 2008, meeting, Respondent used the authority of his public office by seconding Hockenberry’s motion to dismiss all charges and notices sent by the former CEO that did not originate from a written complaint. These included the citations Gramz prepared against Respondent. The motion passed 2 - 1 with Respondent casting the deciding vote. Respondent as co-CEO did not pursue further inspections related to Ordinance No. 2005-73 in relation to violations on the Property. Respondent’s participation in dismissing all prior CEO actions effectively halted all investigative and enforcement steps on the Property. The parties have stipulated that Respondent realized a financial gain of at least $418.40 by participating in the Board’s action to halt the filing of citations against him at the local Magistrate. Respondent participated in the vote to dismiss charges and notices at the time that Ordinance violations had been documented against him. 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 would apply as to the private pecuniary benefit received by Kaltenbaugh, 08-052 Page 19 Respondent. However, given: (1) that the parties have entered into a comprehensive Consent Agreement; and (2) the parties are in agreement that the finding of the aforesaid violation of Section 1103(a) would be appropriate as part of an overall settlement of this case, we shall accept the parties’ proposed disposition. We note that this determination in this case based upon the agreement of the parties should not be considered as precedent for other cases, which would be determined based upon their own facts and circumstances. We hold that a violation of Section 1103(a) of the Ethics Act occurred when Respondent, as Township Supervisor/CEO, used his position(s) to obtain a private pecuniary benefit for himself and a member of his immediate family by dismissing code enforcement actions subject to fines that would otherwise have been levied against him and his brother for property they jointly own. We hold that no violation of Section 1103(a) of the Ethics Act occurred as to the allegation that Respondent, as a Supervisor acting as Township Roadmaster, claimed on time sheets hours for compensation that he did not work, in that there is insufficient evidence to support such a violation. We hold that a violation of Section 1104(a) of the Ethics Act occurred when Respondent failed to file an SFI for the 2007 calendar year by May 1, 2008. As part of the Consent Agreement, Respondent has agreed to make payment in the amount of $500.00 payable to the Commonwealth of Pennsylvania and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Respondent has further agreed to file with the Township an SFI for calendar year 2007, disclosing all required information, and to forward a copy of such filing to this Commission for compliance verification purposes. 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 $500.00 payable to the Commonwealth of Pennsylvania th and 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 an SFI for calendar year 2007, disclosing all required information, and to do so th by no later than the thirtieth (30) day after the mailing date of this adjudication and Order, with a copy of such filing forwarded to this Commission for compliance verification purposes. 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 Connoquenessing Township (“Township”) since January 7, 2008, and Township Code Enforcement Officer (“CEO”) from January 2008 to December 2008, Respondent Jack Kaltenbaugh (“Kaltenbaugh”) 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. Kaltenbaugh, 08-052 Page 20 2. Kaltenbaugh violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he participated in actions of the Township Board of Supervisors to appoint himself to the position of Township Code Enforcement Officer (“CEO”). 3. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Kaltenbaugh, as Township Supervisor/CEO, used his position(s) to obtain a private pecuniary benefit for himself and a member of his immediate family by dismissing code enforcement actions subject to fines that would otherwise have been levied against him and his brother for property they jointly own. 4. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred as to the allegation that Kaltenbaugh, as a Supervisor acting as Township Roadmaster, claimed on time sheets hours for compensation that he did not work, in that there is insufficient evidence to support such a violation. 5. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Kaltenbaugh failed to file a Statement of Financial Interests for the 2007 calendar year by May 1, 2008. In Re: Jack Kaltenbaugh, : File Docket: 08-052 Respondent : Date Decided: 12/15/09 : Date Mailed: 12/29/09 ORDER NO. 1544 1. Jack Kaltenbaugh (“Kaltenbaugh”), a public official in his capacities as a Supervisor of Connoquenessing Township (“Township”) since January 7, 2008, and Township Code Enforcement Officer (“CEO”) from January 2008 to December 2008, violated Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a), when he participated in actions of the Township Board of Supervisors to appoint himself to the position of Township Code Enforcement Officer (“CEO”). 2. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Kaltenbaugh, as Township Supervisor/CEO, used his position(s) to obtain a private pecuniary benefit for himself and a member of his immediate family by dismissing code enforcement actions subject to fines that would otherwise have been levied against him and his brother for property they jointly own. 3. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred as to the allegation that Kaltenbaugh, as a Supervisor acting as Township Roadmaster, claimed on time sheets hours for compensation that he did not work, in that there is insufficient evidence to support such a violation. 4. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Kaltenbaugh failed to file a Statement of Financial Interests (“SFI”) for the 2007 calendar year by May 1, 2008. 5. Per the Consent Agreement of the parties, Kaltenbaugh is directed to make payment in the amount of $500.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission by no later than the th thirtieth (30) day after the mailing date of this Order. 6. To the extent he has not already done so, Kaltenbaugh is directed to file with the Township an SFI for calendar year 2007, disclosing all required information, and to th do so by no later than the thirtieth (30) day after the mailing date of this Order, with a copy of such filing forwarded to the Pennsylvania State Ethics Commission for compliance verification purposes. 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