HomeMy WebLinkAbout1568 Schenker
In Re: Jason Schenker, : File Docket: 09-033
Respondent : X-ref: Order No. 1568
: Date Decided: 10/19/10
: Date Mailed: 10/26/10
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 waived. 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.
Schenker, 09-033
Page 2
I.ALLEGATIONS:
That Jason Schenker, a public official/public employee in his capacity as a Member
of the South Pymatuning Township Municipal Authority, violated Sections 1103(a), 1104(a)
and 1105(b) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a), 1104(a) and
1105(b), when [he] used the authority of [his] office for private pecuniary benefit, including
but not limited to increasing [his] rate of compensation as a Board Member without
approval of the South Pymatuning Township Board of Supervisors, the appointing
Authority; and then subsequently participating in actions of the Authority Board to issue
payments to [him]; when [he] failed to file Statements of Financial Interests for [the] 2006
and 2008 calendar years; and when [he] failed to disclose direct/indirect sources of income
for the 2007 calendar year.
II.FINDINGS:
1. James [sic] Schenker has served as a Member of the South Pymatuning Township
Municipal Authority (hereafter Authority) from approximately September 2006
through the present.
a. Schenker served as the Assistant Treasurer of the Authority Board from
January 7, 2007, through the present.
2. The South Pymatuning Township Supervisors created the Authority via Ordinance
presented at a meeting of the Township Supervisors on September 30, 1968.
a. The Township Supervisors created the Authority pursuant to the authority
granted them in the Pennsylvania Municipality Authorities Act.
b. The Authority provides sewage service for approximately sixty percent of
South Pymatuning Township.
3. The South Pymatuning Township Supervisors are responsible for appointing the
Members of the Authority Board and setting Board Member compensation.
a. Authority Board Members serve five year terms.
b. Pursuant to the provisions of the Municipality Authorities Act, compensation
provided for Authority Board Members must be established by the appointing
authority.
1. Board Members are not permitted to receive an increase or decrease
in compensation during their existing terms.
2. Any increase or decrease in salary becomes effective only upon the
beginning of a new term after the increase/decrease is enacted.
4. The original Articles of Incorporation associated with the Authority provided for a
five Member Board of Directors.
a. The Articles of Incorporation specifically mandated that the Authority was
limited to the undertaking of only those projects which it was directed to
undertake by resolution or ordinance of the Board of Supervisors.
5. The Authority is currently governed by a five Member Board of Directors.
a. The Authority Board holds one regularly scheduled meeting per month on
the first Tuesday of each month.
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1. Special meetings are held as necessary.
b. The Township Supervisors appointed a specific alternate Member to the
Authority Board in March 2003, January 2007, January 2008, and January
2009.
1. The initial alternate Board Member appointed served as such from
March 2003 until December 2005.
2. No alternate Board Member was specifically appointed by the
Township Supervisors in 2007.
6. Voting at Authority meetings is normally conducted via group “aye/nay” vote after a
motion is made and properly seconded.
a. All Board Members, including the Board Chairman, vote on motions
presented.
b. If any Authority Member objects during the group vote, an individual roll call
vote is taken and recorded.
c. Any objections or abstentions cast are specifically noted in the minutes.
1. Minutes of Authority Board meetings are approved for accuracy at
subsequent meetings.
7. No specific meeting packets are compiled for Authority Board Members to review
prior to Authority Board meetings.
a. Documents provided to the Authority Board Members at each meeting
include an agenda developed by the Board Chairman, a report developed by
the Authority engineer, and a Treasurer’s report generated by the recording
secretary.
b. The recording secretary also compiles a bill list which is presented to the
Board for review at the regular monthly meeting.
1. The bill list represents all those bills received by the Authority since
the prior legislative meeting.
8. Signature authority over Authority accounts is maintained by all five Members of the
Authority Board.
a. Authority checks require two live signatures.
b. Facsimile stamps are not utilized by the Authority.
9. The Township Board of Supervisors set Authority Board Members’ compensation at
the rate of $50.00 (gross) per meeting.
a. The Board of Supervisors set this compensation in December 2002 (Finding
No. 18).
1. Prior to this time Authority Members were not compensated.
b. Board Members must be present in order to receive the $50.00 payment.
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c. The $50.00 per meeting payment is applicable to Authority meetings as well
as any meetings attended which relate to Authority business.
10. Payment issued to Authority Board Members for meeting attendance is specifically
documented on the bill list presented for review and approval.
a. The Authority secretary sends an e-mail message to every Board Member on
a monthly basis in order to determine the amount of compensation to issue
to each respective Board Member.
1. The e-mail requests each respective Board Member to inform the
secretary of the number of meetings which were attended during the
prior month.
b. The Authority secretary generates checks for each respective Board Member
based on the response received.
c. The Authority secretary transports the checks to the Authority meeting for
required signatures and subsequent distribution.
11. The desire of Authority Board Members to receive compensation for service on the
Board was first presented to the Township Supervisors for consideration at least as
early as December 17, 2001.
a. Authority Board Members had historically served as unpaid volunteers in
their positions through that time.
12. Minutes of the December 17, 2001, Supervisors Special Meeting document then
Authority Board Member Mark Presley questioning the Supervisors regarding
Authority Board Members receiving compensation.
a. The entire Authority Board and Authority solicitor were in attendance at the
meeting with the exception of Board Member David Sopko.
b. The Township did not approve compensation for Authority Board Members
at that time.
13. At the January 2, 2002, Authority meeting, the Authority Board requested its
solicitor to inform the Township Supervisors of the Authority’s position on various
issues under consideration.
a. Issues under consideration included the size of the Board, appointment of
new Board Members, and salaries for Board Members.
14. In correspondence dated January 4, 2002, to the Township Supervisors, the
Authority solicitor noted the following regarding compensation for Authority
Members:
a. The Authority Board was renewing its request that its Members be paid for
each regular meeting attended at the rate of fifty dollars per meeting.
1. The correspondence identified extra Board Member responsibilities
regarding the Authority beyond regular meeting attendance including
managing finances, answering concerns of the public, attending
meetings with the Borough of Clark Sewer Committee, and attending
meetings of the Upper Shenango Valley Water Pollution Control
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Authority (USVWPCA).
2. The correspondence documented that all extra responsibilities would
remain uncompensated including attending special meetings or
meetings with the Township Supervisors.
b. The Township Supervisors did not approve compensation for Authority
Board Members as a result of the second request made on January 4, 2002.
c. Authority Board Members continued to serve as unpaid volunteers in their
positions through 2002.
15. At the November 14, 2002, Authority meeting, the Authority Board again requested
its solicitor to inform the Township Supervisors of the Authority’s position on various
issues under consideration by both the Authority and the Supervisors.
a. Issues under consideration again included the size of the Authority Board,
appointment of new Board Members, and salaries for Board Members.
16. In correspondence to the Township Supervisors dated November 19, 2002, the
Authority solicitor presented the Authority’s position on multiple issues, including:
a. The reappointment of Evelyn Klein to the Authority Board for a five year term
expiring on December 31, 2007.
b. [Approval] for establishment of a salary for Authority Members at the rate of
fifty dollars per regular meeting attended.
17. A motion was made at the November 22, 2002, Supervisors meeting by DeVries,
seconded by Nashtock, to appoint Nashtock to the Authority Board.
a. The motion passed via unanimous 2-0 vote.
1. Supervisor Derr was not present at the meeting.
18. At the December 4, 2002, meeting of the Board of Supervisors, a motion was made
by Nashtock, seconded by DeVries, to set compensation for Authority Board
Members to be paid from Authority accounts as designated by the Authority Board.
a. The motion called for Authority Board Members to receive compensation in
the amount of $50.00 per meeting.
1. The $50.00 per meeting payment was documented as being effective
January 1, 2003, for Board Members starting their term on or after
this date.
b. The motion passed via 2-0 unanimous vote.
c. The motion did not specify if Authority Board Members were entitled to
receive the $50.00 per meeting attended for meetings outside regular
Authority meetings (i.e., meetings with the Authority engineer, attendance at
USVWPCA meetings, etc.).
19. Prior to December 2002, the South Pymatuning Township Supervisors had never
approved Members of the Authority Board to receive compensation for their
service/meeting attendance.
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a. The Authority Board had initiated requests to the Township Supervisors to
approve compensation for Board Members as early as, if not prior to,
December 2001.
b. Individuals serving as Board Members had done so as unpaid volunteers
from the inception of the Authority.
20. Between 2005 and 2008, the Authority increased Member compensation on three
separate occasions.
a. Schenker is reflected in Authority records as voting only in 2008 to increase
Member compensation.
1. Schenker was not a Member of the Authority until September 2006.
b. Minutes of the Authority meetings confirm the following regarding increases
to Member compensation:
January 5, 2005:
The Authority went into executive session. The Authority returned
from executive session. Vince DeJulia made a motion to increase
Lori Gill’s salary to $1,000.00 per month, Dave Haywood seconded.
All Members approved. Dave Haywood made a motion [to] increase
the Board Members pay per meeting to $75.00 per meeting, Vince
DeJulia seconded. All Members approved.
1. Board Member Klein was not present for this meeting.
Members voting were Nashtock, DeVries, DeJulia and
Haywood.
January 4, 2006:
Dave Haywood made a motion to pay the Authority Members $100.00
per meeting for the South Pymatuning Municipal Authority and $75.00
per meeting for the USVWPCA, Vince DeJulia seconded. All
Members approved.
1. Members present and voting were Nashtock, DeVries,
DeJulia, Klein and Haywood.
January 18, 2008:
At 6:00 p.m. the Board went into Executive Session to discuss
personnel matters and reconvened at 6:10 p.m.
A motion was made by Mr. DeVries, seconded by Mrs. Klein to set the
regular monthly meeting pay for all Board Members to $150.00 and
reduce the extra meeting and continued meeting pays to $50.00 per
meeting. Any Member that attends a USVWPCA meeting will be
credited with an extra meeting pay. The rate increase is effective
February 1, 2008. Motion carried.
1. Board Members voting were DeJulia, DeVries, Klein,
Nashtock and Schenker.
21. None of the increases in compensation were presented to the South Pymatuning
Township Supervisors for consideration or approval prior to enacting.
a. Two of the five Authority Members voting to increase compensation either
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Page 7
were, or had been, Members of the Township Board of Supervisors.
22. When compensation was increased at the above listed meetings, Members of the
Board of Supervisors were also serving as Authority Members.
a. Former Supervisor DeVries and Supervisor Nashtock were present at the
2005, 2006 and 2008 meetings.
b. The Authority Members believed that the Board of Supervisors would have
approved increases if requested by the Authority.
23. At the times of the votes to increase compensation, Authority Members believed
that since a majority of the Board of Supervisors voted to increase compensation,
no other formal action was required.
a. The Authority Solicitor did not advise the Authority that separate Board of
Supervisor approval was required.
b. Supervisors DeVries and Nashtock, who also served as Authority Members,
did not believe any additional action of the Supervisors was required.
24. Schenker participated in the 2008 vote to increase Board Member compensation
because he was informed that similar increases were approved in the past.
a. Schenker was not informed that increases required Board of Supervisor
approval.
25. Checks issued to Authority Board Members as compensation for meeting
attendance originated from Authority Account Numbers XXXX406 and XXXXX526 at
First National Bank (FNB).
26. Schenker, between January 2008 and August 2009, participated in actions as an
Authority Board Member in approving monthly bill lists on which payment to him for
attendance at Authority and additional outside meetings totaled $800.00.
27. From January 2008 through August 2009, Schenker voted nineteen (19) times to
approve bills which included payments to Schenker for compensation received after
voting to increase Board Member compensation.
28. Ongoing payment to Authority Board Members was suspended by the Authority
Board at the October 6, 2009, Authority Board meeting.
a. Noted under “New Business” was that the Board hold payment for October
and future meetings until informed by the Commission of a resolution to the
potential conflict of Members adjusting their own compensation.
1. Commission refers to the State Ethics Commission.
b. The motion passed unanimously.
1. Klein was present at the meeting and participated in the unanimous
vote.
29. Between October 2009 and July 2010, Schenker was eligible to receive
compensation for meeting attendance as an Authority Member totaling $400.00 (8
meetings @ $50/meeting).
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Page 8
a. Schenker attended eight (8) of the ten (10) meetings held during that time
frame.
b. Schenker has not received compensation totaling $400.00 which was
approved by the appointing authority.
30. During a sworn statement with Commission investigators conducted on May 4,
2010, Schenker stated the following:
a. Schenker was not specifically familiar with the Municipality Authorities Act
prior to reading the Act after receiving his Notice of Investigation letter.
1. Schenker became aware after reading the Act that compensation for
Authority Board Members is required to be established and approved
by the appointing body.
aa. Schenker was not previously aware that the Authority Board
could not legitimately increase its own compensation for
service.
2. Schenker became aware after reading the Act that any legitimate
increases in Authority Board Member compensation become effective
only after the beginning of a Board Member’s new term.
b. Schenker was not aware that Authority Board Members were compensated
for service when he accepted his appointment to the Authority Board.
1. Schenker believed that Authority Board Members volunteered their
service.
2. Schenker discovered that Authority Board Members were
compensated after attending his first Authority meeting.
c. No concerns were raised by the Authority solicitor at the time that the vote
took place to increase Authority Board Member compensation.
THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT SCHENKER FAILED
TO FILE STATEMENTS OF FINANCIAL INTERESTS IN HIS POSITION AS A MEMBER
OF THE SOUTH PYMATUNING TOWNSHIP AUTHORITY BOARD FOR CALENDAR
YEARS 2006 AND 2008 AND WHEN HE FAILED TO DISCLOSE INCOME FROM THE
AUTHORITY ON HIS 2007 CALENDAR YEAR STATEMENT OF FINANCIAL
INTERESTS.
31. On May 20, 2009, and August 26, 2009, a review of various records including
Statements of Financial Interests was conducted at the South Pymatuning
Township municipal building.
a. No Statements of Financial Interests were present for Schenker in his
position as an Authority Board Member for calendar years 2006 or 2008.
32. Schenker received income from the Authority in the amount of $1,775.00 in 2007.
a. Schenker did not disclose income received from the Authority on his
Statement of Financial Interests filed in 2008 representative of the 2007
calendar year.
1. Schenker’s 2007 calendar year Statement of Financial Interests
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documented Farrell Coin Laundry, LLC., and Jason Schenker Rentals
as direct or indirect sources of income.
33. During his sworn statement on May 4, 2010, Schenker provided completed
Statements of Financial Interests for calendar years 2006 and 2008 as well as an
amended Statement of Financial Interests for calendar year 2007 to Commission
investigators which disclosed income from the Authority.
a. All Statements of Financial Interests provided by Schenker bear Schenker’s
signature and a completion date of September 22, 2009.
III.DISCUSSION:
As a Member of the South Pymatuning Township Municipal Authority (“Authority”)
from approximately September 2006 through the present, Respondent Jason Schenker,
hereinafter also referred to as “Respondent,” “Respondent Schenker,” and “Schenker,” 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 Schenker violated Sections 1103(a), 1104(a)
and 1105(b) of the Ethics Act: (1) when he used the authority of his office for private
pecuniary benefit, including but not limited to increasing his rate of compensation as a
Board Member without approval of the South Pymatuning Township (“Township”) Board of
Supervisors, the appointing authority, and then subsequently participating in actions of the
Authority Board to issue payments to him; (2) when he failed to file Statements of Financial
Interests (“SFIs”) for the 2006 and 2008 calendar years; and (3) when he failed to disclose
direct/indirect sources of income for the 2007 calendar year.
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.
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Page 10
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 an SFI for the preceding calendar year, each year that he holds the position and
the year after he leaves it.
Section 1105(b) of the Ethics Act and its subsections detail the financial disclosure
that a person required to file the Statement of Financial Interests form must provide.
Subject to certain statutory exceptions not applicable to this matter, Section 1105(b)(5) of
the Ethics Act requires the filer to disclose on the Statement of Financial Interests the
name and address of any direct or indirect source of income totaling in the aggregate
$1,300 or more.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are set forth above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
The Authority was created in 1968 pursuant to the Municipality Authorities Act. The
Members of the Authority Board are appointed by the Township Board of Supervisors.
Pursuant to the Municipality Authorities Act, compensation provided for Authority Board
Members must be established by the Township Board of Supervisors as the appointing
authority. Authority Board Members are not permitted to receive an increase or decrease
in compensation during their existing terms. Any increase or decrease in salary becomes
effective only upon the beginning of a new term.
Respondent Schenker has served as a Member of the Authority from approximately
September 2006 through the present. Schenker has served as the Assistant Treasurer of
the Authority Board from January 7, 2007, through the present.
In December 2002 the Township Board of Supervisors set the compensation of
Authority Board Members at the rate of $50.00 gross per meeting attended. The $50.00
per meeting payment was documented as being effective January 1, 2003, for Board
Members starting their term on or after that date. Although the approved motion did not
specify whether Authority Board Members would be entitled to compensation for meetings
outside regular Authority meetings (Fact Finding 18 c), the parties have stipulated that the
$50.00 per meeting payment is applicable to Authority meetings as well as any meetings
attended that relate to Authority business (Fact Finding 9c).
At Authority Board meetings held on January 5, 2005, January 4, 2006, and January
18, 2008, the Authority Board voted to increase its Members’ compensation as detailed in
Fact Findings 20-21. None of these increases in compensation were presented to the
Township Board of Supervisors for consideration or approval prior to enactment. The
Authority Solicitor did not advise the Authority that separate Board of Supervisor approval
was required. Former Supervisor DeVries and Supervisor Nashtock, who served as
Authority Members, did not believe any additional action of the Supervisors was required.
The Authority Members believed that the Board of Supervisors would have approved
increases if requested by the Authority.
Schenker was not a Member of the Authority until September 2006. Schenker
participated in the January 18, 2008, vote to increase Board Member compensation
because he was informed that similar increases were approved in the past. Schenker was
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not informed that increases required approval of the Township Board of Supervisors.
Between January 2008 and August 2009, Schenker participated in actions as an
Authority Board Member in approving monthly bill lists on which payment to him for
attendance at Authority and additional outside meetings totaled $800.00.
From January 2008 through August 2009, Schenker voted nineteen (19) times to
approve bills which included payments to Schenker for compensation received after voting
to increase Authority Board Member compensation.
At the October 6, 2009, Authority Board meeting, the Authority Board voted
unanimously to suspend further meeting payments to Authority Board Members until
informed by this Commission of a resolution to the potential conflict of Members adjusting
their own compensation. As a result of the suspension of meeting payments, Schenker did
not receive meeting pay totaling $400.00 to which he was entitled.
During a sworn statement with Commission investigators conducted on May 4,
2010, Schenker indicated that he was not specifically familiar with the Municipality
Authorities Act prior to reading the Act after receiving his Notice of Investigation letter, and
that he was not previously aware that compensation for Authority Board Members is
required to be established and approved by the appointing body. Schenker became aware
after reading the Act that any legitimate increases in Authority Board Member
compensation become effective only after the beginning of a Board Member’s new term.
On May 20, 2009, and August 26, 2009, a review of SFIs was conducted at the
Township municipal building. No SFIs were present for Schenker as an Authority Board
Member for calendar years 2006 or 2008. Additionally, Schenker’s SFI for calendar year
2007 did not include the Authority as a direct or indirect source of income despite the fact
that Schenker had received income in the amount of $1,775.00 from the Authority in 2007.
During his sworn statement on May 4, 2010, Schenker provided to Commission
investigators completed SFIs for calendar years 2006 and 2008 as well as an amended
SFI for calendar year 2007 that disclosed income from the Authority. All SFIs provided by
Schenker bear Schenker’s signature and a completion date of September 22, 2009.
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 no violation of Section 1103(a) of the Public
Official and Employee Ethics Act, 65 Pa.C.S.
§1103(a) occurred when Schenker participated
in increasing his rate of compensation, as a
Board Member, without approval of the South
Pymatuning Township Board of Supervisors, the
appointing Authority; and his receipt of said
compensation because the net amount of the
private pecuniary gain was de minimis.
b. That an unintentional violation of Section
1104(a) of the Public Official and Employee
Ethics Act, 65 Pa.C.S. §1104(a), occurred in
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Page 12
relation to the allegation that Schenker failed to
file Statements of Financial Interests for the
2006 and 2008 calendar years with the South
Pymatuning Township Municipal Authority.
c. That an unintentional violation of Section
1105(b) of the Public Official and Employee
Ethics Act, 65 Pa.C.S. §1105(b), occurred when
Schenker failed to list all sources of direct or
indirect income on his 2007 Statement of
Financial Interests.
4. Schenker agrees to make payment in the amount of $250.00 in
settlement of this matter payable to the South Pymatuning
Township Municipal Authority and forwarded to the
Pennsylvania State Ethics Commission within thirty (30) days
of the issuance of the final adjudication in this matter.
5. If Schenker has not already done so, he agrees to file
amended Statements of Financial Interests for calendar year
2007 listing all sources of income; and file Statements of
Financial Interests for calendar years 2006 and 2008 with the
South Pymatuning Township Municipal Authority, and forward
copies [of] all filings to this Commission.
6. The Investigative Division will recommend that the State Ethics
Commission take no further action in this matter; and make no
specific recommendations to any law enforcement or other
authority to take action in this matter. Such, however, does
not prohibit the Commission from initiating appropriate
enforcement actions in the event of Respondent's failure to
comply with this agreement or the Commission's order or
cooperating with any other authority who may so choose to
review this matter further.
Consent Agreement, at 1-2.
In considering the Consent Agreement, the parties have recommended a finding
that no violation of Section 1103(a) of the Ethics Act occurred when Schenker participated
in increasing his rate of compensation as an Authority Board Member, without approval of
the Township Board of Supervisors, and received said compensation because the net
amount of the private pecuniary gain was de minimis. It would appear that the parties are
in agreement that the excess meeting pay that Schenker received, when offset by the
$400.00 of meeting pay that Schenker was entitled to receive but did not receive, was a de
minimis amount. We shall accept the recommendation of the parties.
Accordingly, we hold that no violation of Section 1103(a) of the Ethics Act occurred
when Schenker participated in increasing his rate of compensation as an Authority Board
Member, without approval of the Township Board of Supervisors, and received said
compensation, because based upon the Consent Agreement of the parties, the net amount
of the private pecuniary gain was de minimis.
We further hold that an unintentional violation of Section 1104(a) of the Ethics Act
occurred in relation to the allegation that Schenker failed to file SFIs for the 2006 and 2008
calendar years with the Authority. Intent is not a requisite element for a violation of
Section 1103(a) of the Ethics Act. See, e.g., Yocabet v. State Ethics Commission, 531
A.2d 536 (Pa. Cmwlth. 1987). Nevertheless, based upon the Stipulated Findings, it would
Schenker, 09-033
Page 13
appear that the aforesaid violation was unintentional.
Finally, we hold that an unintentional violation of Section 1105(b) of the Ethics Act
occurred when Schenker failed to list all direct or indirect sources of income on his SFI for
calendar year 2007.
As part of the Consent Agreement, Respondent has agreed to make payment in the
amount of $250.00 payable to the South Pymatuning Township Municipal Authority and
forwarded to this Commission within thirty (30) days of the issuance of the final
adjudication in this matter.
To the extent he has not already done so, Respondent has further agreed to file
with the Authority an amended SFI for calendar year 2007 listing all sources of income and
SFIs for calendar years 2006 and 2008 and to forward copies of all such filings to this
Commission.
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 Schenker is
directed to make payment in the amount of $250.00 payable to the South Pymatuning
Township Municipal Authority and forwarded to this Commission by no later than the
th
thirtieth (30) day after the mailing date of this adjudication and Order.
To the extent he has not already done so, Respondent Schenker is directed to file
with the Authority an amended SFI for calendar year 2007 listing all sources of income and
SFIs for calendar years 2006 and 2008 and to forward copies of all such filings to this
th
Commission by no later than the thirtieth (30) day after the mailing date of this
adjudication and Order.
Compliance with the foregoing will result in the closing of this case with no further
action by this Commission. Noncompliance will result in the institution of an order
enforcement action.
IV.CONCLUSIONS OF LAW:
1. As a Member of the South Pymatuning Township Municipal Authority (“Authority”)
from approximately September 2006 through the present, Respondent Jason
Schenker (“Schenker”) has been a public official subject to the provisions of the
Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq.
2. Schenker did not violate Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a),
when he participated in increasing his rate of compensation as an Authority Board
Member, without approval of the South Pymatuning Township Board of Supervisors
(the appointing authority), and received said compensation, because based upon
the Consent Agreement of the parties, the net amount of the private pecuniary gain
was de minimis.
3. An unintentional violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. §
1104(a), occurred in relation to the allegation that Schenker failed to file Statements
of Financial Interests (“SFIs”) for the 2006 and 2008 calendar years with the
Authority.
4. An unintentional violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. §
1105(b), occurred when Schenker failed to list all direct or indirect sources of
income on his SFI for calendar year 2007.
In Re: Jason Schenker, : File Docket: 09-033
Respondent : Date Decided: 10/19/10
: Date Mailed: 10/26/10
ORDER NO. 1568
1. As a Member of the South Pymatuning Township Municipal Authority (“Authority”),
Jason Schenker (“Schenker”) did not violate Section 1103(a) of the Public Official
and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), when he participated
in increasing his rate of compensation as an Authority Board Member, without
approval of the South Pymatuning Township Board of Supervisors (the appointing
authority), and received said compensation, because based upon the Consent
Agreement of the parties, the net amount of the private pecuniary gain was de
minimis.
2. An unintentional violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. §
1104(a), occurred in relation to the allegation that Schenker failed to file Statements
of Financial Interests (“SFIs”) for the 2006 and 2008 calendar years with the
Authority.
3. An unintentional violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. §
1105(b), occurred when Schenker failed to list all direct or indirect sources of
income on his SFI for calendar year 2007.
4. Per the Consent Agreement of the parties, Schenker is directed to make payment in
the amount of $250.00 payable to the South Pymatuning Township Municipal
Authority and forwarded to the Pennsylvania State Ethics Commission by no later
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than the thirtieth (30) day after the mailing date of this Order.
5. To the extent he has not already done so, Schenker is directed to file with the
Authority an amended SFI for calendar year 2007 listing all sources of income and
SFIs for calendar years 2006 and 2008 and to forward copies of all such filings to
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this Commission by no later than the thirtieth (30) day after the mailing date of this
Order.
6. Compliance with Paragraphs 4 and 5 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