HomeMy WebLinkAbout1569 DeVries
In Re: Burt DeVries, : File Docket: 09-034
Respondent : X-ref: Order No. 1569
: 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.” 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.
DeVries, 09-034
Page 2
I.ALLEGATIONS:
That Burt DeVries, a public official/public employee in his capacity as a Member of
the South Pymatuning Township Municipal Authority, violated Sections 1103(a) and
1104(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a) and 1104(a), when
he used the authority of his office for private pecuniary benefit, 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; and
when he failed to file Statements of Financial Interests for the 2005 and 2006 calendar
years.
II.FINDINGS:
1. DeVries has served as a Member of the South Pymatuning Township Municipal
Authority (hereafter Authority) consecutively from at least December 6, 2005,
through the present.
a. DeVries was initially appointed to fill a vacancy on the Authority Board on
December 4, 2002.
1. DeVries served as an Authority Board Member from December 4,
2002, until March 10, 2003.
2. DeVries served as an alternate Authority Board Member from March
11, 2003, through approximately December 5, 2005.
b. DeVries served as the Authority Assistant Secretary/Treasurer from January
3, 2006, to January 2, 2007, and as the Authority Treasurer from January 2,
2007, to the present.
2. DeVries also served as a Supervisor for South Pymatuning Township, Mercer
County, from February 5, 1996, to January 5, 2004.
a. DeVries served as the Assistant Chairperson of the Board of Supervisors
from at least January 6, 1997, until January 5, 2004.
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
DeVries, 09-034
Page 3
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.
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.
DeVries, 09-034
Page 4
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.
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.
DeVries, 09-034
Page 5
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
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
DeVries, 09-034
Page 6
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.
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 Board, including DeVries, voted to increase
the compensation of Authority Members.
a. DeVries, as a Township Supervisor, voted to set compensation for Authority
Members in 2002.
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.
DeVries, 09-034
Page 7
c. DeVries voted, as an alternate Authority Member, on January 5, 2005.
21. Authority Board Members routinely voted to approve increases in Board Member
compensation as illustrated in the chart below:
Meeting Date Members Meeting Meeting Compensation Vote
Present Compensation Approved by Authority
Established by
Supervisors
January 5, 2005 M. Nashtock $50.00 per meeting $75.00 per meeting 4-0
B. DeVries
V. DeJulia
D. Haywood
January 4, 2006 M. Nashtock $50.00 per meeting $100.00 per Authority meeting 5-0
B. DeVries
V. DeJulia $75.00 per USVWPCA meeting
E. Klein
D. Haywood
January 18, 2008 M. Nashtock $50.00 per meeting $150.00 per Authority meeting 5-0
B. DeVries
V. DeJulia $50.00 per extra and continued
E. Klein meetings
J. Schenker
a. None of the increases in compensation were presented to the South
Pymatuning Township Supervisors for consideration or approval prior to
enacting.
b. Nashtock did not inform the Township Supervisors of Authority Board actions
to increase Board Member compensation in 2005, 2006 or 2008 although
serving as both a South Pymatuning Township Supervisor and Authority
Board Member during those years.
22. When compensation was increased at the above listed meetings, Members of the
Board of Supervisors were also serving as Authority Members.
a. Supervisor Nashtock was present at the 2005, 2006 and 2008 meetings.
b. The Authority Members believed that the Board of Supervisors would have
approved increases.
23. At the times of the votes to increase compensation, Authority Members believed
that since a Member 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. Former Supervisor DeVries and Supervisor Nashtock, who also served as
Authority Members, did not believe any additional action of the Supervisors
was required.
DeVries, 09-034
Page 8
24. Checks issued to Authority Board Members as compensation for meeting
attendance originated from Authority Account Numbers XXXX406 and XXXXX526 at
First National Bank (FNB).
25. Between May 2004 and August 2009, DeVries participated in actions as a Member
of the Authority to approve monthly bills which included payments to him for
attendance at meetings.
a. [The] payments received by DeVries [totaled] $8,500.00.
b. DeVries voted to approve fifty-four (54) bill lists during this time.
c. DeVries signed four (4) checks totaling $750.00 issued to him.
26. From February 2005 through August 2009, DeVries received compensation as an
Authority Board Member in excess of the amount specifically approved by the
Township Supervisors totaling $3,950.00 as shown in the chart below:
Meeting Check Check Check No. of Amount Unapproved
Date Number Date Amt. Mtgs. Due Compensation
(Gross)
06/01/04 2000 06/01/04 50.00 1 $50.00 $0.00
07/06/04 2016 07/06/04 50.00 1 50.00 0.00
08/03/04 2040 08/03/04 50.00 1 50.00 0.00
09/07/04 2055 09/07/04 50.00 1 50.00 0.00
12/2004 2118 12/07/04 50.00 1 50.00 0.00
01/05/05 2142 01/01/05 50.00 1 50.00 0.00
02/01/05 2164 02/01/05 75.00 1 50.00 25.00
03/08/05 2180 03/01/05 75.00 1 50.00 25.00
04/05/05 2195 04/05/05 75.00 1 50.00 25.00
08/02/05 2285 08/02/05 75.00 1 50.00 25.00
09/06/05 2317 09/06/05 75.00 1 50.00 25.00
10/04/05 2331 10/04/05 75.00 1 50.00 25.00
11/01/05 2350 11/01/05 75.00 1 50.00 25.00
12/06/05 2373 12/01/05 150.00 2 100.00 50.00
01/04/06 2390 01/03/06 75.00 1 50.00 25.00
02/07/06 2413 02/01/06 100.00 1 50.00 50.00
03/07/06 2429 03/07/06 100.00 1 50.00 50.00
04/04/06 2442 04/04/06 250.00 3 150.00 100.00
05/02/06 2462 05/01/06 175.00 2 100.00 75.00
06/06/06 2475 06/06/06 100.00 1 50.00 50.00
07/05/06 2495 07/05/06 100.00 1 50.00 50.00
08/01/06 2498 08/01/06 175.00 2 100.00 75.00
09/05/06 0004 09/07/06 250.00 3 150.00 100.00
10/03/06 1015 10/03/06 175.00 2 100.00 75.00
11/06/06 1042 11/06/06 175.00 2 100.00 75.00
12/05/06 1058 12/05/06 250.00 3 150.00 100.00
01/04/07 1086 01/04/07 175.00 2 100.00 75.00
02/06/07 1115 02/06/07 250.00 3 150.00 100.00
03/06/07 1136 03/06/07 100.00 1 50.00 50.00
04/03/07 1151 04/03/07 175.00 2 100.00 75.00
05/01/07 1178 05/01/07 175.00 2 100.00 75.00
06/05/07 1203 06/05/07 100.00 1 50.00 50.00
07/09/07 1223 07/09/07 100.00 1 50.00 50.00
08/01/07 1242 08/01/07 250.00 3 150.00 100.00
DeVries, 09-034
Page 9
Meeting Check Check Check No. of Amount Unapproved
Date Number Date Amt. Mtgs. Due Compensation
(Gross)
09/04/07 1261 09/04/07 175.00 2 100.00 75.00
10/02/07 1281 10/02/07 175.00 2 100.00 75.00
11/07/07 1320 11/07/07 100.00 1 50.00 50.00
12/04/07 1343 12/04/07 325.00 4 200.00 125.00
01/09/08 1368 01/09/08 175.00 2 100.00 75.00
02/05/08 1391 02/01/08 225.00 2 100.00 125.00
03/05/08 1415 03/04/08 200.00 2 100.00 100.00
04/01/08 1438 04/01/08 200.00 2 100.00 100.00
05/06/08 1470 05/06/08 200.00 2 100.00 100.00
06/03/08 1489 06/03/08 150.00 1 50.00 100.00
07/01/08 1505 07/01/08 200.00 2 100.00 100.00
08/05/08 1530 08/05/08 150.00 1 50.00 100.00
09/02/08 1548 09/02/08 200.00 2 100.00 100.00
10/07/08 1562 10/07/08 150.00 1 50.00 100.00
11/03/08 1586 11/02/08 200.00 2 100.00 100.00
12/02/08 1606 12/02/08 150.00 1 50.00 100.00
01/06/09 1627 01/06/09 250.00 3 150.00 100.00
02/03/09 1649 02/03/09 150.00 1 50.00 100.00
03/03/09 1668 03/03/09 150.00 1 50.00 100.00
04/07/09 1689 04/07/09 150.00 1 50.00 100.00
05/05/09 1712 05/05/09 150.00 1 50.00 100.00
06/02/09 1739 06/02/09 150.00 1 50.00 100.00
07/07/09 1761 07/07/09 150.00 1 50.00 100.00
08/04/09 1776 08/04/09 150.00 1 50.00 100.00
Total $8,500.00 $3,950.00
27. 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. DeVries was present at the meeting and participated in the
unanimous vote.
28. During a sworn statement with Commission investigators on May 6, 2010, DeVries
stated the following:
a. DeVries recalled the issue of approving compensation for the Authority
Board being presented to the Township Supervisors when he served as
such.
b. DeVries believed that Authority Board Members served as volunteers prior to
December 2002 when the Township Supervisors approv[ed] compensation
for Board Members.
c. DeVries, as a Township Supervisor, participated in the vote to appoint
himself to the Authority Board and participated in the vote to approve
DeVries, 09-034
Page 10
compensation for Authority Board Members.
1. DeVries recalled no statement having been made by either him or
Michael Nashtock regarding possible conflicts of interests in relation
to the votes.
d. DeVries was in favor of allowing the Authority Board to establish its own
compensation amount with no Township involvement unless the amounts
established by the Authority Board became “ridiculous.”
1. DeVries was in favor of allowing such after reviewing the section of
the Municipality Authorities Act which allowed the Authority Board to
establish Board officer compensation.
aa. All Members of the Authority Board served as officer[s] at that
time; however, increases approved by the Authority Board
were for general Board membership.
e. DeVries did not accept any compensation as an alternate Authority Board
Member until after his term as a Township Supervisor had expired.
f. Board Members are not issued any reimbursement for mileage, charges
incurred for telephone calls regarding Authority business, etc.
THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT DEVRIES FAILED TO
FILE A STATEMENT OF FINANCIAL INTERESTS IN HIS POSITION AS A MEMBER OF
THE SOUTH PYMATUNING TOWNSHIP MUNICIPAL AUTHORITY FOR CALENDAR
YEARS 2005 AND 2006.
29. On May 20, 2009, and August 26, 2009, a review of various records including
Statements of Financial Interests was conducted by the Investigative Division of the
State Ethics Commission at the South Pymatuning Township municipal building.
b. No Statements of Financial Interests were present for DeVries in his position
as an Authority Board Member for calendar years 2005 and 2006.
30. On May 6, 2010, DeVries met with a Commission investigator and provided copies
of his personal copies of Statements of Financial Interests which he had filed for
calendar years 2005 and 2006.
a. DeVries’s 2005 and 2006 calendar year Statements of Financial Interests
were dated June 12, 2006, and February 12, 2007, respectively.
III.DISCUSSION:
As a Member of the South Pymatuning Township Municipal Authority (“Authority”),
Respondent Burt DeVries, hereinafter also referred to as “Respondent,” “Respondent
DeVries,” and “DeVries,” is 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 DeVries violated Sections 1103(a) and
1104(a) 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; and (2) when he failed to file Statements of Financial
Interests (“SFIs”) for the 2005 and 2006 calendar years.
DeVries, 09-034
Page 11
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a)Conflict of interest.—
No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
The term "conflict of interest" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest."
Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
family is associated. The term does not include an action
having a de minimis economic impact or which affects to the
same degree a class consisting of the general public or a
subclass consisting of an industry, occupation or other group
which includes the public official or public employee, a
member of his immediate family or a business with which he or
a member of his immediate family is associated.
65 Pa.C.S. § 1102.
Section 1103(a) of the Ethics Act prohibits a public official/public employee from
using the authority of public office/employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public official/public
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
Section 1104(a) of the Ethics Act provides that each public official/public employee
must file an SFI for the preceding calendar year, each year that he holds the position and
the year after he leaves it.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are set forth above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
Respondent DeVries has served as a Member of the Authority consecutively from at
least December 6, 2005, through the present. DeVries was initially appointed to fill a
vacancy on the Authority Board on December 4, 2002. DeVries served as an Authority
Board Member from December 4, 2002, until March 10, 2003. DeVries served as an
alternate Authority Board Member from March 11, 2003, through approximately December
5, 2005. DeVries served as the Authority Assistant Secretary/Treasurer from January 3,
2006, to January 2, 2007, and as the Authority Treasurer from January 2, 2007, to the
present.
DeVries also served as a Township Supervisor from February 5, 1996, to January 5,
2004.
DeVries, 09-034
Page 12
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.
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. As a
Township Supervisor, DeVries seconded the motion and voted in favor of setting such
compensation for the Authority Board Members. 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 Township Board of Supervisors would have
approved increases.
At the January 5, 2005, and January 4, 2006, Authority Board meetings, DeVries
participated in the Authority Board votes to increase Authority Board Member
compensation. At the January 18, 2008, Authority Board meeting, DeVries made the
motion and participated in the Authority Board vote to increase Authority Board Member
compensation.
Between May 2004 and August 2009, DeVries participated in actions as an
Authority Board Member in approving monthly bill lists that included payments to DeVries
for attendance at meetings. DeVries voted to approve 54 bill lists during this time.
DeVries signed four (4) checks totaling $750.00 issued to him. The Stipulated Findings do
not indicate whether those checks included unauthorized meeting pay to DeVries.
As detailed in Fact Finding 26, from February 2005 through August 2009, DeVries
received as an Authority Board Member a total of $3,950 of compensation not approved by
the Township Board of Supervisors.
At the October 6, 2009, Authority Board meeting, DeVries participated in a
unanimous vote of the Authority Board 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.
On May 20, 2009, and August 26, 2009, a review of SFIs was conducted at the
Township municipal building. No SFIs were present for DeVries as an Authority Board
Member for calendar years 2005 and 2006. On May 6, 2010, DeVries provided to a
Commission investigator copies of DeVries’s personal copies of SFIs which he had filed for
calendar years 2005 and 2006. DeVries’s 2005 and 2006 calendar year SFIs were dated
June 12, 2006, and February 12, 2007, respectively.
DeVries, 09-034
Page 13
We note that during a sworn statement with Commission investigators on May 6,
2010, DeVries acknowledged that while serving as a Township Supervisor, he participated
in the vote to appoint himself to the Authority Board. Such an action would be beyond the
scope of the allegations and the five-year limitations period provided by the Ethics Act.
See, 65 Pa.C.S. § 1108(m).
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
DeVries 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.
b. That no violation of Section 1104(a) of the Public
Official and Employee Ethics Act, 65 Pa.C.S.
§1104(a), occurred in relation to the allegation
that DeVries failed to file Statements of Financial
Interests for the 2005 and 2006 calendar years
with the South Pymatuning Township Municipal
Authority, as there is insufficient evidence to
establish that the forms in question were not
appropriately filed.
4. DeVries agrees to make payment in the amount of $1,300.00
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. The Investigative Division will recommend that the State Ethics
Commission take no further action in this matter; and make no
specific recommendations to any law enforcement or other
authority to take action in this matter. Such, however, does
not prohibit the Commission from initiating appropriate
enforcement actions in the event of Respondent's failure to
comply with this agreement or the Commission's order or
cooperating with any other authority who may so choose to
review this matter further.
Consent Agreement, at 1-2.
In considering the Consent Agreement, we accept the recommendation of the
parties for a finding that an unintentional violation of Section 1103(a) of the Ethics Act
occurred when DeVries participated in increasing his rate of compensation as an Authority
Board Member, without approval of the Township Board of Supervisors, and received said
compensation.
DeVries, 09-034
Page 14
DeVries used the authority of his public office as an Authority Board Member at the
January 5, 2005, and January 4, 2006, Authority Board meetings, when he participated in
the Authority Board votes to increase Authority Board Member compensation. DeVries
used the authority of his public office as an Authority Board Member at the January 18,
2008, Authority Board meeting when he made the motion and participated in the Authority
Board vote to increase Authority Board Member compensation.
DeVries voted to approve at least some of the monthly bill lists that included
unauthorized compensation to him for meeting attendance.
The resulting private pecuniary benefit to DeVries consisted of a total of $3,950.00
of unauthorized meeting pay that DeVries received.
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 appear that the aforesaid
violation was unintentional.
We hold that an unintentional violation of Section 1103(a) of the Ethics Act occurred
when DeVries participated in increasing his rate of compensation as an Authority Board
Member, without approval of the Township Board of Supervisors (the appointing authority),
and received said compensation. Cf., Russell v. State Ethics Commission, 987 A.2d 835
(Pa. Cmwlth. 2009), allocatur denied, No. 22 WAL 2010 (Pa. August 11, 2010).
We further hold that no violation of Section 1104(a) of the Ethics Act occurred in
relation to the allegation that DeVries failed to file SFIs for the 2005 and 2006 calendar
years with the Authority, as there is insufficient evidence to establish that the forms in
question were not appropriately filed.
As part of the Consent Agreement, Respondent has agreed to make payment in the
amount of $1,300.00 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.
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 DeVries is
directed to make payment in the amount of $1,300.00 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.
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”),
Respondent Burt DeVries (“DeVries”) is 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. DeVries unintentionally violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. §
1103(a), when he participated in increasing his rate of compensation as an
DeVries, 09-034
Page 15
Authority Board Member, without approval of the South Pymatuning Township
Board of Supervisors (the appointing authority), and received said compensation.
3. No violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred in
relation to the allegation that DeVries failed to file Statements of Financial Interests
for the 2005 and 2006 calendar years with the Authority, as there is insufficient
evidence to establish that the forms in question were not appropriately filed.
In Re: Burt DeVries, : File Docket: 09-034
Respondent : Date Decided: 10/19/10
: Date Mailed: 10/26/10
ORDER NO. 1569
1. As a Member of the South Pymatuning Township Municipal Authority (“Authority”),
Burt DeVries (“DeVries”) unintentionally violated 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.
2. No violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred in
relation to the allegation that DeVries failed to file Statements of Financial Interests
for the 2005 and 2006 calendar years with the Authority, as there is insufficient
evidence to establish that the forms in question were not appropriately filed.
3. Per the Consent Agreement of the parties, DeVries is directed to make payment in
the amount of $1,300.00 payable to the South Pymatuning Township Municipal
Authority and forwarded to the Pennsylvania State Ethics Commission by no later
th
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