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.