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HomeMy WebLinkAbout1555 Yerke In Re: Thomas Yerke, : File Docket: 09-012 Respondent : X-ref: Order No. 1555 : Date Decided: 3/25/10 : Date Mailed: 4/9/10 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella 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. Yerke, 09-012 Page 2 I.ALLEGATIONS: That Thomas Yerke, a public official/public employee in his capacity as a Supervisor of Covington Township, Lackawanna County, violated Section 1103(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § 1103(a), when he used the authority of his public position for a private pecuniary benefit by participating in the actions of the Board to appoint him to the position of Roadmaster/Director of Public Works; and when he utilized a Township provided cellular telephone for personal purposes. II.FINDINGS: 1. Thomas Yerke has served as a Supervisor of Covington Township, Lackawanna County since at least 1996. a. Yerke was elected to a 5-year term when the Board switched from a three- member Board to a five-member Board. b. Yerke is currently serving his third term as Covington Township Supervisor. c. Yerke has served as Chairman of the Board of Supervisors for approximately 13 years. 2. Covington Township is a Second Class Township governed by a five member Board of Supervisors. 3. Yerke served as Covington Township Roadmaster from January 2000 until June 3, 2008. a. On June 3, 2008, the position of Roadmaster was renamed Director of Public Works upon Yerke’s request. 1. Yerke’s duties were expanded beyond responsibility for Township road maintenance and he requested the change in job title to encompass the additional duties. b. Yerke began serving as Covington Township Director of Public Works on June 3, 2008. c. Yerke has served Covington Township as the Director of Public Works from June 3, 2008, until the present. nd 4. Section 602 of the 2 Class Township Code provides, in part, regarding Boards of Supervisors, which are designated as three-member boards, as follows: a. “[A]ny Supervisor who is to be considered by the board for any appointed township position or for employment by the township as authorized by law shall not be excluded from voting on the issue of such appointment or employment.” b. The code does not provide that Supervisors who serve on five-member Boards are authorized to participate in actions appointing themselves to positions of employment with the Township. 5. Yerke participated in actions of the Board of Supervisors at the Reorganization Meetings of 2005, 2006, 2007, and 2008 to appoint himself to the position of Roadmaster. Actions taken by Yerke included voting on motions to appoint himself as Roadmaster and are shown in the following chart: Yerke, 09-012 Page 3 Meeting Date Action Recorded Vote 1/5/2004 abstained 4 to 0, 1 abstention (Yerke) 1/3/2005 vote 5 to 0 1/3/2006 vote 5 to 0 1/2/2007 vote 5 to 0 1/7/2008 vote 4 to 0, 1 abstention (Willson) a. Yerke abstained from voting on his appointment as Roadmaster in 2004. b. The motions made to appoint Yerke as Roadmaster between 2005 and 2007 were [made as] part of a singular motion approving a number of employment positions within the Township. 6. Yerke also participated in actions of the Board of Supervisors to appoint himself as the Director of Public Works when the position was changed from Roadmaster. a. Listed below are actions taken by Yerke resulting in his appointment as Director of Public Works: Meeting Recorded Date Action Vote 6/3/2008 vote 3 to 1 1/5/2009 vote 4 to 1 7. Yerke’s compensation as Roadmaster and Director of Public Works was set by the Township Board of Auditors. 8. Yerke’s W2 Wage and Tax Statements confirm his compensation as Roadmaster/Director of Public Works: Year Amount 2005 $46,366.75 2006 $13,015.80 2007 $45,467.40 2008 $49,832.59 2009 $19,454.14 * a. Yerke’s compensation between 2005 and 2009 totaled $174,136.99. * [sic]. [The sum of the listed numbers is $174,136.68.] 9. Covington Township began providing cellular telephones to select Township officials and employees in or about 1997 through Nextel. a. Elected officials included Yerke and Supervisor Marlene Beavers. 1. Yerke was provided a cellular telephone in his capacity as Roadmaster while in approximately 2005, Beavers received a phone as Project Director. 10. The cellular service has been provided continuously since 1997 by Sprint/Nextel. Yerke, 09-012 Page 4 a. Sprint and Nextel merged to form Sprint Nextel Corporation on August 12, 2005. b. The Covington Township account no. is 206951084. 11. The following Covington Township employees and officials currently have cellular telephones issued to them by the Township for official business use: Name Designation Number Katherine Tierney Secretary/Treasurer 570-840-0725 John Hollister Maintenance 570-840-0726 Tom Yerke DPW/Supervisor 570-840-0727 Tom Hall Road Department 570-840-0728 Bill Wright Zoning Officer 570-840-0729 Stephen Miaris Road Department 570-840-2693 Bernard Klocko Police Department 570-840-3409 Marlene Beavers Supervisor 570-840-6959 a. No other Covington Township employees or officials have/had access to the phone issued to Yerke. 12. From January 2006 to January 2008, the Township’s cellular telephone plan, [which included Yerke’s phone], was the SLE Performance 200. a. The Plan provided the following: SLE Performance 200 Talkgroup (SM) Nextel Direct Connect Cross Fleet Shared Cellular Minutes Shared DC/Talkgroup Mins Usage Domestic Toll b. Monthly costs per person for the plan were $39.36. c. The plan did not include text messaging, and the total minutes were shared among the users. 1. Each phone had approximately 200 minutes plus an additional 100 shared minutes. 13. Yerke’s Township cellular telephone plan was changed effective February 2008 to the Biz Essentials Add on 7:00 p.m. a. February 2008 costs were $49.20. b. Between March and June 2008, monthly costs were $28.70. c. Costs for July 2008 totaled $50.29. d. Yerke’s plan was changed after a meeting with Nextel representatives. 14. The features of the Biz Essentials Add on 7:00 p.m. included the following: Yerke, 09-012 Page 5 Biz Essentials Add on 7 p.m. $ 25.00 unlimited nationwide DC $ 10.00 Total Costs $ 35.00 Less 18% discount $ 6.30 Total $ 28.70 a. This service plan was in effect until August 2008. 15. An unlimited messaging plan was added to Yerke’s Township issued cell phone in August 2008. a. The unlimited messaging plan provided by Nextel includes unlimited use of the text and picture messaging service. b. Effective August 2008, Yerke’s cell phone plan increased to $38.90/month, plus taxes. c. Yerke authorized the inclusion of unlimited messages to his Township provided cellular telephone plan. 16. Yerke again changed the plan of his cell phone to an unlimited talk/message/connect plan on October 18, 2008. a. The plan included unlimited minutes, unlimited messages, and unlimited use of the Nextel Direct Connect Feature. b. The Direct Connect feature is frequently used by the Road Crew in a fashion similar to that of a walkie talkie. c. The cost of the plan increased to $89.99 a month. 17. The changes to the cell phone service plan assigned to Yerke’s Township issued cell phone were made due to increased monthly costs to the Township for the plan which included personal use of the phone for both sending and receiving text and picture messages and for making and receiving calls of a personal nature. a. Yerke’s cellular telephone account was one of the accounts with excessive costs for texting and minutes usage. b. The changes to the service plans were not made by any action of the Board of Supervisors. 1. Yerke negotiated plan costs with Nextel representatives. c. Changes made by Yerke were done, in part, as a result of overages by Yerke for text messages and other calling features. 18. Cell phone invoices issued to Covington Township from Sprint/Nextel for the time period from January 2008 through December 2009 confirm the use of the Township issued cell phone number 570-840-0727 by Yerke to send or receive text and picture messages on 14,852 occasions. a. Covington Township does not regularly conduct business with vendors or residents via text or picture messages. Yerke, 09-012 Page 6 b. Township employees rarely text Yerke for any official purpose. c. [Text messages] by all other Township telephones from January 2008 to December 2009 [totaled] 721. d. Yerke’s text messages surpassed all other Township cell phone messages combined beginning in May 2008. 19. Yerke sent or received 14,131 (based on 14,852 less 721 made by Township employees) text and picture messages from January 2008 through December 2009 that were not related to official Covington Township business. a. Credit was given for the 721 made by other Township cellular telephones. 20. Covington Township was invoiced by Nextel a varying charge for each message sent or received from Yerke’s Township issued cell phone from January 2008 until the unlimited messaging service plan was added to the phone beginning with the August 21, 2008, statement. a. An average cost per message for each month was determined by dividing the total cost of all the messages for each month by the total cost that the Township was invoiced for each for messages for each month [sic] as shown below: Statement Total Total Avg. Per Date Messages Cost Message 1/21/2008 1 $ 0.20 $ 0.20 2/21/2008 1 $ 0.25 $ 0.25 3/21/2008 7 $ 1.65 $ 0.24 4/21/2008 19 $ 4.65 $ 0.24 5/21/2008 105 $ 22.15 $ 0.21 6/21/2008 1012 $ 203.35 $ 0.20 7/21/2008 1728 $ 150.90 $ 0.09 21. Covington Township was charged $370.45 for text and picture messages that were sent or received by Yerke’s Township issued cell phone from January 2008 until July 2008 that were of a personal nature as shown below: Statement Personal Avg. Per Date Messages Message Total Cost 1/21/2008 0 $ 0.20 $ - 2/21/2008 0 $ 0.25 $ - 3/21/2008 0 $ 0.24 $ - 4/21/2008 0 $ 0.24 $ - 5/21/2008 99 $ 0.21 $ 20.88 6/21/2008 994 $ 0.20 $ 199.73 7/21/2008 1716 $ 0.09 $ 149.85 a. Not all of the charges for text and picture messages were for Yerke’s personal purposes. 1. Yerke confirmed to State Ethics Commission Investigators that he did use the Township cellular telephone to send personal text and picture messages. Yerke, 09-012 Page 7 22. Minute usage on Yerke’s Township issued cell phone in 2008 and 2009 confirms increased minutes including personal use of the Township issued cell phone by Yerke as shown in the following chart: Statement Date Minutes 1/21/2008 460 2/21/2008 445 3/21/2008 702 4/21/2008 1025 5/21/2008 1050 6/21/2008 1214 7/21/2008 1498 8/21/2008 1511 9/21/2008 1627 10/21/2008 2283 11/21/2008 1940 12/21/2008 1108 1/21/2009 902 2/21/2009 875 3/21/2009 848 4/21/2009 1529 5/21/2009 1321 6/21/2009 1105 7/21/2009 981 8/21/2009 1233 9/21/2009 1310 10/21/2009 846 11/21/2009 1093 12/21/2009 933 23. The total costs incurred by the Township for Yerke’s Township issued cell phone from January 2006 until December 2008, including excess minutes costs, long distance charges and texting, are listed below: Excess Invoice Plan Minutes Long D/C Total Date Cost Cost Distance Messaging Additional Overage Cost 1/22/2006 $39.36 $ - $ 0.45 $ - $0.59 $ - $ 40.40 2/22/2006 $39.36 $ - $ 0.20 $ - $0.59 $ - $ 40.15 3/22/2006 $39.36 $ - $ - $ 0.15 $0.59 $ - $ 40.10 4/22/2006 $39.36 $ - $ 0.80 $ - $0.63 $ - $ 40.79 5/22/2006 $39.36 $ 36.77 $ 0.40 $ - $1.22 $ - $ 77.75 6/22/2006 $39.36 $ 39.95 $ 1.78 $ 0.15 $1.29 $ - $ 82.53 7/22/2006 $39.36 $ 42.53 $14.24 $ - $1.53 $ - $ 97.66 8/22/2006 $39.36 $ 20.91 $ 6.31 $ - $1.05 $ - $ 67.63 9/22/2006 $39.36 $ 34.31 $ 5.38 $ - $1.26 $ - $ 80.31 10/22/2006 $39.36 $ 26.67 $ 3.46 $ - $1.11 $ - $ 70.60 11/22/2006 $39.36 $101.22 $ 0.65 $ - $1.97 $ - $143.20 Yerke, 09-012 Page 8 12/22/2006 $39.36 $ - $ 1.67 $ - $0.56 $ - $ 41.59 1/22/2007 $39.36 $ - $ - $ 0.15 $0.51 $ - $ 40.02 2/21/2007 $39.36 $ - $ 1.33 $ - $0.53 $ - $ 41.22 3/21/2007 $39.36 $ 28.87 $ - $ - $0.87 $ - $ 69.10 4/21/2007 $39.36 $ 17.64 $ 0.54 $ - $0.95 $ - $ 58.49 5/21/2007 $39.36 $ 83.29 $ 2.36 $ 0.25 $2.21 $ - $127.47 6/21/2007 $39.36 $ 18.96 $ 0.29 $ 0.40 $0.97 $ 0.24 $ 60.22 7/21/2007 $39.36 $ 23.26 $ - $ - $0.90 $ - $ 63.52 8/21/2007 $39.36 $ 30.70 $ 2.07 $ 0.15 $1.21 $ 0.06 $ 73.55 9/21/2007 $39.36 $ 43.56 $ 0.40 $ 0.30 $1.34 $ 0.20 $ 85.16 10/21/2007 $39.36 $ 77.13 $ - $ 0.40 $2.30 $ - $119.19 11/21/2007 $39.36 $ 34.87 $ - $ 1.35 $1.89 $ - $ 77.47 12/21/2007 $39.36 $ 6.70 $ 3.20 $ 2.65 $1.29 $ - $ 53.20 1/21/2008 $39.36 $ - $ 1.00 $ 0.20 $0.92 $ - $ 41.48 2/21/2008 $49.20 $ - $ - $ 0.25 $1.12 $ - $ 50.57 3/21/2008 $28.70 $ - $ - $ 1.65 $0.69 $ - $ 31.04 4/21/2008 $28.70 $ - $ - $ 4.65 $0.83 $ - $ 34.18 5/21/2008 $28.70 $ - $ - $ 22.15 $ - $ - $ 50.85 6/21/2008 $28.70 $ - $ - $203.35 $5.80 $ - $237.85 7/21/2008 $50.29 $ 11.83 $ - $150.90 $0.31 $213.33 8/21/2008 $36.90 $ 51.73 $ - $ - $0.51 $ - $ 89.14 9/21/2008 $36.90 $ 96.86 $ - $ - $0.90 $ - $134.66 10/21/2008 $90.54* $235.76 $ - $ - $9.49 $335.79 11/21/2008 $89.99 $ - $ - $ - $1.84 $ - $ 91.83 12/21/2008 $89.99 $ - $ - $ - $1.84 $ 91.83 *includes one day of unlimited messaging 24. The additional charges to Yerke’s cell phone plan for excess minute usage, long distance and texting as billed to the Township by Nextel for the period January 2006 through August 2008 were $730.90. a. Some of those charges were related to personal use of the Township cellular telephone by Yerke. 25. Yerke utilized the Township cell phone issued to him on at least two occasions as a point of contact to sell personal used automobiles. a. Yerke listed his Township cell phone number, 570-840-0727, in or around 7/27/2008, on a blue Ford Falcon as a point of contact for purchasing the vehicle. 1. Total usage by Yerke in July 2008 and August 2008 on his Township issued cell [phone] was 3,009 minutes. b. Yerke listed his Township cell phone number, 570-840-0727, in or around 10/21/2008, on a 1993 Cadillac as a point of contact for purchasing the vehicle. 1. Total minutes usage by Yerke in October and November 2008 of his Township issued cell phone was 4,223 minutes. c. Four of the highest monthly minute usage totals occurred when Yerke was attempting to sell the two vehicles. Yerke, 09-012 Page 9 d. Yerke confirmed to Investigators for the State Ethics Commission that he utilized the Township cellular telephone number as a point of contact when advertising in local newspapers to sell personal items. 26. Yerke utilized his Township issued cell phone to make or receive 416 personal calls totaling approximately 271.3 minutes (approximately 4.5 hours) to/from his home telephone number [Number Redacted] from February 1, 2008, until August 24, 2009, as shown in the following chart: Total Call Time Month (sec) Feb-08 628 Mar-08 854 Apr-08 623 May-08 639 Jun-08 584 Jul-08 728 Aug-08 475 Sep-08 879 Oct-08 731 Nov-08 865 Dec-08 1833 Jan-09 638 Feb-09 1348 Mar-09 691 Apr-09 1370 May-09 1185 Jun-09 884 Jul-09 701 Aug-09 622 Total 16,278 a. Of the 416 calls placed to or received from Yerke’s home telephone number, 134 were made either on a weekend or after his regular hours as a Township employee had ended. 27. Yerke utilized his Township issued cell phone to make or receive 61 calls totaling approximately 31 minutes to/from his daughter, Amanda Yerke’s, cellular telephone number [Number Redacted] from February 1, 2008, until August 24, 2009, as shown in the following chart: Total Call Month Time (sec) Feb-08 270 Mar-08 27 Apr-08 105 May-08 0 Jun-08 527 Jul-08 381 Aug-08 240 Sep-08 111 Yerke, 09-012 Page 10 Oct-08 0 Nov-08 71 Dec-08 35 Jan-09 23 Feb-09 0 Mar-09 67 Apr-09 0 May-09 0 Jun-09 0 Jul-09 4 Aug-09 0 Total 1,861 28. Covington Township incurred costs of $960.02 as a result of Yerke’s actions to increase cell phone service plans available on his Township issued cell phone as shown below: Statement Additional Date Charge 8/21/2008 $ 20.00 9/21/2008 $ 20.00 10/21/2008 $ 61.96* 11/21/2008 $ 61.29 12/21/2008 $ 61.29 1/21/2009 $ 61.29 2/21/2009 $ 61.29 3/21/2009 $ 61.29 4/21/2009 $ 61.29 5/21/2009 $ 61.29 6/21/2009 $ 61.29 7/21/2009 $ 61.29 8/21/2009 $ 61.29 9/21/2009 $ 61.29 10/21/2009 $ 61.29 11/21/2009 $ 61.29 12/21/2009 $ 61.29 Total $ 960.02 *includes a $0.67 charge for 10/20/08 unlimited messaging a. The increase in plan costs covered extra usage by Yerke for both official and personal use. b. The additional charge for 10/21/2008 through 12/21/2009 was determined by subtracting the previous cost for the plan assigned to Yerke’s phone ($28.70) from the cost of the new plan ($89.99). c. From January 2006 through December 2009, Yerke regularly participated in actions of the Board of Supervisors to approve payments of bill lists which included the Nextel/Sprint invoices containing costs for his cellular telephone usage. Yerke, 09-012 Page 11 29. In or about September 2008, residents began raising concerns to the Board of Supervisors regarding the use of Township cellular telephones for personal use by Yerke. a. The complaints occurred at or about the time Yerke increased the plan features for his cellular telephone, resulting in increased monthly costs of $89.99 for Yerke’s Township paid cellular telephone. b. Yerke also began carrying a personal cell phone with him during his Township work hours to make and receive personal calls. 30. Yerke discussed the use of Township provided cell phones during the December 3, 2008, meeting of the Board. [The minutes include the following excerpt]: Cell Phone Use: Mr. Yerke stated that it has come to his attention that there may be a problem with Township cell phones being used for personal calls. He stated that he would like to set a rule to give guidance on the use of cell phones. He noted that the Township cell phones have been used for nine years to help keep the Township functional. Key personnel have the phones to keep in touch with one another and have been used for personal calls that have come to them. The phone package that the Township pays for each month has a limited and unlimited use that we stay within. We pay a fair rate for eight phones at approximately three hundred twenty five dollars a month. Mr. Yerke stated that he looks at the phone bills monthly and if there is an overcharge he calls Nextel and they make the adjustment in the next billing. Mr. Yerke stated that to avoid any controversy with these phones he would ask the Board to consider and it will be an additional expense, to give each cell phone holder an allotted amount on a monthly basis. This would require each person to buy their own phone and service and the Township would reimburse a set amount for Township use, or keep the program as it is. Mr. Yerke showed where he is now carrying two phones with him, one Township and the other personal. He stated that there is unlimited use on the Township phone and the Township pays one flat rate on it, so it doesn’t matter if he makes a million calls. Yeager (Solicitor) stated that once again the problem is using Township property for private use so the idea is to have people own their own private phones and use them for Township use with a set amount for reimbursement as determined by the Board individually. Mr. Willson (Township Supervisor) said to get copies of other municipalities’ policies on the issue. Mr. Yerke stated that he did take the opportunity to ask other municipalities what they do and they all are identical to what Covington does now. Mr. Yerke stated that when you have a phone for nine years and someone calls you on the Township phone, and many people have your number, naturally some people will call you for other reasons than Township business. It’s not an abuse it’s just a natural order of things, however he understands that is [sic] could be interpreted as abuse. Mr. Lindner (Township Supervisor) said that if your wife calls who’s to say she isn’t calling as a tax payer. Mr. Yeager stated that what if someone calls you on a personal matter at 2 p.m. the problem is that you are speaking on personal business on Township time. Mr. Lindner stated that Township calls come in off Township time also. It was said that the private plans will cost the Township double. Mr. Willson said that he thinks we need a set policy and to let Attorney Yeager come up with that policy. Mr. Yeager stated that the easy policy would be don’t use Township phone for private business however, the practical aspects are how do you enforce it. George VanBrunt commented that he works for three Townships and he has his own phone that cost $229.00 monthly with seven hundred minutes and he pays for it. Mrs. VanBrunt stated that if you are going to have a private phone you are going to pay a lot more. Mr. Yerke stated that he can’t say he won’t accept family phone calls when they call. He stated that this was Yerke, 09-012 Page 12 never a problem, it was always affordable and he watched the Nextel billing every month. Mr. Yerke said that the Nextel phone is being scrutinized and a case is being made that he is abusing it when he has unlimited phone minutes. He stated he is concerned with other people in the Township stating that Kate and Bill shut their phones off and now he can’t get them. Mr. Wright asked how this situation got to this state, this is ridiculous, he said. Yerke stated that there is a case being made against him for abuse of government property. Mr. Yeager further stated that the other part of the argument is people are spending an inordinate amount of time during the day taking private calls and the cost. Mr. Godek stated cancel the phones and go back to pony express. Mr. Yerke stated that he thinks we accomplished something here in that people realize what is going on. He is concerned that our constituent [sic] might think that we are crooks. It can be perceived as an abuse or a normal order of doing things. It will be up to them to decide. Mr. VanBrunt explained a recent situation where he had to speak with the Secretary on business and had to call her home phone and leave a message, whereas before he could call on the cell phone. Mr. Leonard Borowski said buy a radio they go twenty six miles at the cost of forty or fifty dollars and you can contact anyone any time you want, then the argument is over. Mr. Yerke said providing that they too have a walkie talkie. Mr. VanBrunt said the walkie talkie that goes twenty six miles won’t go three if you are in the wrong place. Mr. Yerke suggested that we keep looking at the cell phone bill to keep the abuse down to a minimum. Mr. Petrosky stated to have the staff use their phones. 31. Covington Township did not have an official cell phone policy until February 3, 2009. At the February 3, 2009, regular Board of Supervisors meeting, a cell phone policy was adopted. Meeting minutes note as follows: “ON MOTION duly made (Lindner), seconded (Beavers), and carried to accept Option #1 where overages would be paid for by user who exceeds the allotted minutes for that phone.” a. There was no written policy enacted. 32. During an interview with State Ethics Commission Investigators, Yerke admitted that he had utilized his Township issued cell phone for personal use. a. Yerke admitted to using the phone for the personal purpose of exchanging text and picture messages with family and friends. b. Yerke admitted to utilizing the phone to make and receive personal calls. c. Yerke admitted that he gave his friends and family members the Township cell phone number to use as a point of contact and that the cell phone had become “his identity” over time. III.DISCUSSION: As a Supervisor of Covington Township (“Township”) since at least 1996, Respondent Thomas Yerke, hereinafter also referred to as “Respondent,” “Respondent Yerke,” and “Yerke,” has been a public official/public employee subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. The allegations are that Yerke violated Section 1103(a) of the Ethics Act: (1) when he used the authority of his public position for a private pecuniary benefit by participating in the actions of the Township Board of Supervisors (“Board”) to appoint him to the position Yerke, 09-012 Page 13 of Township Roadmaster/Director of Public Works; and (2) when he utilized a Township provided cellular telephone for personal purposes. 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. 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 Yerke has served as a Township Supervisor since at least 1996. Yerke has served as Chairman of the Board for approximately 13 years. The Board consists of five Members. In addition to serving as a Township Supervisor, Yerke served as Township Roadmaster from January 2000 until June 3, 2008, and as Township Director of Public Works from June 3, 2008, until the present. At the Board’s Reorganization Meetings on January 3, 2005, January 3, 2006, January 2, 2007, and January 7, 2008, Yerke participated in Board votes to appoint him to the position of Township Roadmaster. On June 3, 2008, and January 5, 2009, Yerke participated in Board votes to appoint him as the Township Director of Public Works. Yerke, 09-012 Page 14 Yerke’s compensation as Roadmaster and Director of Public Works was set by the Township Board of Auditors. Yerke’s W2 Wage and Tax Statements confirm his compensation as Roadmaster/Director of Public Works as detailed in Fact Finding 8. Between 2005 and 2009, Yerke’s compensation in the aforesaid positions totaled over $174,136. In or about 1997, the Township began providing cellular telephones through Nextel to certain Township officials and employees including Yerke. The cellular service has been provided continuously since 1997 by Sprint/Nextel. No other Township officials or employees have had access to the phone issued to Yerke. From January 2006 to January 2008, the Township’s cellular telephone plan, which included Yerke’s phone, was the SLE Performance 200. Monthly costs per person for the plan were $39.36. The plan did not include text messaging, and the total minutes were shared among the users. Each phone had approximately 200 minutes plus an additional 100 shared minutes. Yerke’s Township cellular telephone plan was changed effective February 2008 to the “Biz Essentials Add on 7:00 p.m.” This service plan was in effect until August 2008. An unlimited messaging plan was added to Yerke’s Township issued cell phone in August 2008. The unlimited messaging plan included unlimited use of the text and picture messaging service. Effective August 2008, Yerke’s cell phone plan cost $38.90/month, plus taxes. Yerke authorized the inclusion of unlimited messages to his Township provided cellular telephone plan. Yerke again changed the plan of his cell phone to an unlimited talk/message/connect plan on October 18, 2008. The plan included unlimited minutes, unlimited messages, and unlimited use of the Nextel Direct Connect Feature, which is similar to a walkie talkie. The cost of the plan increased to $89.99 per month. The changes to the cell phone service plan assigned to Yerke’s Township issued cell phone were made due to increased monthly costs to the Township for the plan, which included personal use of the phone by Yerke for both sending and receiving text and picture messages and for making and receiving calls of a personal nature. The changes to the service plans were not made by any action of the Board. Yerke negotiated plan costs with Nextel representatives. Changes made by Yerke were done, in part, as a result of overages by Yerke for text messages and other calling features. The parties have stipulated that Yerke sent or received 14,131 text and picture messages from January 2008 through December 2009 that were not related to official Township business. The total number of text messages by all other Township telephones from January 2008 to December 2009 was 721. The parties have further stipulated that: (1) the Township was charged $370.45 for text and picture messages of a personal nature that were sent or received by Yerke’s Township issued cell phone from January 2008 until July 2008; (2) the additional charges to Yerke’s cell phone plan for excess minute usage, long distance and texting as billed to the Township by Nextel for the period January 2006 through August 2008 were $730.90, some of which charges were related to personal use of the Township cellular telephone by Yerke; and (3) the Township incurred costs of $960.02 as a result of Yerke’s actions to increase cell phone service plans available on his Township issued cell phone. Yerke confirmed to Investigators for the State Ethics Commission that he utilized the Township cellular telephone number as a point of contact when advertising in local newspapers to sell personal items. Yerke utilized the Township cell phone issued to him on at least two occasions as a point of contact to sell personal used automobiles. Four of Yerke, 09-012 Page 15 the highest monthly minute usage totals occurred when Yerke was attempting to sell the two vehicles. From January 2006 through December 2009, Yerke regularly participated in actions of the Board to approve payments of bill lists that included the Nextel/Sprint invoices containing costs for his cellular telephone usage. In or about September 2008, residents began raising concerns to the Board regarding Yerke’s use of Township cellular telephones for personal purposes. The complaints occurred at or about the time Yerke increased the plan features for his cellular telephone, resulting in increased monthly costs of $89.99 for Yerke’s Township paid cellular telephone. Yerke also began carrying a personal cell phone with him during his Township work hours to make and receive personal calls. Yerke discussed the use of Township provided cell phones during the December 3, 2008, meeting of the Board as detailed at Fact Finding 30. At the February 3, 2009, regular meeting of the Board, a cell phone policy was adopted as stated at Fact Finding 31. During an interview with State Ethics Commission Investigators, Yerke admitted that he had utilized his Township issued cell phone for personal use. Yerke admitted to using the phone for the personal purpose of exchanging text and picture messages with family and friends. Yerke admitted to utilizing the phone to make and receive personal calls. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations as follows: 3. The Investigative Division will recommend the following in relation to the above allegations: a. That an unintentional violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a) occurred when Yerke voted to appoint himself as Roadmaster and/or Director of Public Works for Covington Township. 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 Yerke’s utilization of [a] Township provided cellular telephone for his personal purposes. 4. Yerke agrees to make payment in the amount of $1,350.00 in settlement of this matter payable to Covington Township and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. 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 Yerke, 09-012 Page 16 cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 1-2. In considering the Consent Agreement submitted by the parties, we accept the parties’ recommendation for a finding that an unintentional violation of Section 1103(a) of the Ethics Act occurred when Yerke voted to appoint himself as Roadmaster and/or Director of Public Works for the Township. Each element of the recommended unintentional violation has been established. Yerke used the authority of his public office as a Township Supervisor when he participated in Board votes to appoint him to the aforesaid Township employment positions. The Second Class Township Code authorizes township supervisors serving on three-member boards, but not five-member boards, to vote to appoint themselves to township employment positions. See, 53 P.S. § 65602(a). In this case, The Board consists of five Members. Therefore, Yerke lacked legal authority to participate in voting to appoint himself to the aforesaid Township employment positions. The resulting private pecuniary benefit consisted of compensation that Yerke received in the said employment positions. Although intent is not a requisite element of a violation of Section 1103(a) of the Ethics Act, see, Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Commw. Ct. 1987), the parties are in agreement that the aforesaid violation was unintentional. Accordingly, we hold that an unintentional violation of Section 1103(a) of the Ethics Act occurred when Yerke voted to appoint himself as Roadmaster and/or Director of Public Works for the Township. We further accept the parties’ recommendation that a violation of Section 1103(a) of the Ethics Act occurred in relation to Yerke’s utilization of a Township provided cellular telephone for his personal purposes. It is axiomatic that Section 1103(a) of the Ethics Act prohibits the use of governmental facilities, equipment, and the like for private purposes. See, e.g., Debias, Order 1539; Confidential Opinion, 05-001. Yerke used the authority of his public position(s) with the Township when he engaged in extensive use of his Township provided cellular telephone for personal purposes and when he made changes to the Sprint/Nextel plan for that telephone--at Township expense--which facilitated such personal use. From January 2006 through December 2009, Yerke further used the authority of his public office as a Township Supervisor by regularly participating in Board actions to approve payments of bill lists that included the Nextel/Sprint invoices containing costs for his cellular telephone usage. The resulting private pecuniary benefit to Yerke consisted of use of the Township cellular telephone at Township expense for Yerke’s personal purposes. Accordingly, we hold that a violation of Section 1103(a) of the Ethics Act occurred in relation to Yerke’s utilization of a Township provided cellular telephone for his personal purposes. Cf., Young, Order 1378; Moore, Order 1317. As part of the Consent Agreement, Yerke has agreed to make payment in the Yerke, 09-012 Page 17 amount of $1,350.00 payable to Covington Township and forwarded 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. Per the Consent Agreement of the parties, Yerke is directed to make payment in the amount of $1,350.00 payable to Covington Township and forwarded to this Commission by th 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 Covington Township (“Township”) since at least 1996, Respondent Thomas Yerke (“Yerke”) has been a public official/public employee subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. 2. Yerke unintentionally violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he voted to appoint himself as Roadmaster and/or Director of Public Works for the Township. 3. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Yerke’s utilization of a Township provided cellular telephone for his personal purposes. In Re: Thomas Yerke, : File Docket: 09-012 Respondent : Date Decided: 3/25/10 : Date Mailed: 4/9/10 ORDER NO. 1555 1. As a Supervisor of Covington Township (“Township”), Thomas Yerke (“Yerke”) unintentionally violated Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), when he voted to appoint himself as Roadmaster and/or Director of Public Works for the Township. 2. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Yerke’s utilization of a Township provided cellular telephone for his personal purposes. 3. Per the Consent Agreement of the parties, Yerke is directed to make payment in the amount of $1,350.00 payable to Covington 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. 4. Compliance with Paragraph 3 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 Commissioner Mark Volk did not participate in this matter.