HomeMy WebLinkAbout1605 Anderson
In Re: Robert Anderson, : File Docket: 10-043
Respondent : X-ref: Order No. 1605
: Date Decided: 9/24/12
: Date Mailed: 10/5/12
Before: John J. Bolger, Chair
Donald M. McCurdy, Vice Chair
Raquel K. Bergen
Nicholas A. Colafella
Mark Volk
Mark R. Corrigan
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted
an investigation regarding possible violation(s) of the Public Official and Employee Ethics
Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., by the above-named Respondent. At the
commencement of its investigation, the Investigative Division served upon Respondent
written notice of the specific allegations. Upon completion of its investigation, the
Investigative Division issued and served upon Respondent a Findings Report identified as
an “Investigative Complaint.” An Answer was filed and a hearing was requested. A
Stipulation of Findings and a Consent Agreement 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.
I.ALLEGATIONS:
That Robert Anderson, a public official/public employee in his capacity as the
Business Enterprise Program Coordinator/Administrative Officer [3] with the Office of
Vocational Rehabilitation of the Department of Labor and Industry, violated Sections
1103(a) and 1105(b) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a) and
1105(b), when he used the authority of his public position for a private pecuniary benefit of
himself and/or a business with which he is associated by participating in the drafting of
specifications for state contracts and supervision of contracts awarded to A & M Business
Enterprises, Inc., a business with which he is associated; when he directed Labor and
Industry employees to utilize the services of A & M Business Enterprises, Inc.; when he
used Commonwealth materials, equipment and/or facilities in furtherance of his personal
interests; when he used a Commonwealth issued credit card to make purchases of a
personal nature; when he failed to list on Statements of Financial Interests filed for the
2005, 2006, 2007 and 2009 calendar years all direct/indirect sources of income; when he
failed to disclose all creditors in excess of $6,500 on Statements of Financial Interests filed
for the 2008 and 2009 calendar years; when he failed to disclose his office, directorship, or
employment in any business on a Statement of Financial Interests filed for the 2007
calendar year; and when he failed to disclose on Statements of Financial Interests filed for
the 2007, 2008 and 2009 calendar years his financial interest in any entity in business for
profit.
Anderson, 10-043
Page 2
II.FINDINGS:
1. Robert Anderson was employed by the Commonwealth of Pennsylvania,
Department of Labor and Industry, beginning May 13, 2006.
a. Anderson’s employment with the Department of Labor and Industry (“L & I”)
was with the Bureau of Blindness and Visual Services (“BBVS”).
b. Anderson was previously employed by the Pennsylvania Department of
Education, Bureau of Career and Technical Education, as an Administrative
Officer 2 from approximately September 7, 2004, until May 12, 2006.
c. Anderson separated from Commonwealth employment on or about April 20,
2012, effective December 16, 2010.
2. L & I’s Bureau of Blindness and Visual Services is a department within L & I’s Office
of Vocational Rehabilitation.
a. Anderson’s specific job title for the BBVS was Administrative Officer 3, and
Anderson was the Business Enterprise Program (“BEP”) Coordinator.
3. Some of Anderson’s general job duties as the Coordinator of the Business
Enterprise Program (“BEP”) included the direct supervision of four (4) field agents,
one (1) construction specialist and one (1) clerical position.
a. Anderson was also responsible for enrolling clients in BEP, assisting roughly
forty-five (45) operators to become profitable, overseeing the day-to-day
operations of the program, developing Invitations for Bids (“IFB”), soliciting
services, and overseeing purchases made for BEP.
4. Anderson’s position as an Administrative Officer 3 reports directly to David
DeNotaris, Director, Bureau of Blindness and Visual Services.
5. L & I’s personnel records also include a job description for Anderson’s position of
Administrative Officer 3; Anderson signed this position description on November 23,
2009.
6. Personnel records reflect that Anderson was promoted to the position of
Administrative Officer 3 with the Department of Labor and Industry, Bureau of
Blindness and Visual Services effective May 13, 2006.
a. In connection with the promotion, Anderson was informed that the position
was covered under the financial disclosure provisions of the State Ethics Act
and the Governor’s Code of Conduct, by way of correspondence dated April
21, 2006.
b. Anderson also was informed as part of the April 21, 2006, correspondence
that he was required to file a supplemental employment request for
compensated work outside of his Commonwealth responsibilities.
7. As an L & I employee, Anderson was required to complete mandatory training
relating to ethics and information technology use.
a. Training records confirm that Anderson completed online training for “Ethics
in the workplace” on February 13, 2008.
Anderson, 10-043
Page 3
8. Anderson, while an employee of L & I, had access to Commonwealth owned
technology and computers.
a. Anderson had a Commonwealth owned laptop computer issued to him.
b. As a Commonwealth employee, Anderson was required to review and
comply with the Commonwealth’s Internet/E-mail User Agreement.
c. Anderson’s Commonwealth user name was “rdanderson.”
9. On September 7, 2004, Anderson signed a Commonwealth Internet/E-mail User
Agreement.
a. Management Directive 205.34 relates to acceptable uses of Commonwealth
computers, Internet and email.
1. Personal use of Commonwealth computers, Internet and email is not
authorized by this directive.
10. Anderson, in his official capacity as Administrative Officer 3 for the Department of
Labor and Industry, was issued a Commonwealth credit card for use on official
Commonwealth business and travel.
11. On March 31, 2005, Anderson signed a PNC Commonwealth credit card user
agreement, which included cautionary language on the card’s use.
a. Specifically included with the application/agreement was the following
language regarding personal use of the card: Business purpose only, “you
expressly agree that the card and account will only be used for business
purposes and for business travel and entertainment expenses relating to the
Commonwealth. You expressly agree that the card and the account will not
be used for personal, family, or household purposes.”
12. Between December 10, 2007, and July 13, 2010, Anderson at times used his
Commonwealth issued credit card for purchases of a personal nature.
a. Anderson paid any charge considered personal along with any interest
generated by such purchase.
b. Anderson was reimbursed by the Commonwealth for all official charges.
c. Any monthly balances would have been the result of Anderson’s failure to
pay for personal charges made to this account.
d. Pursuant to Travel Procedure Manual 230.1, effective July 1, 2009,
Anderson would have been responsible for all unpaid, uncontested
balances.
13. Anderson made purchases of a personal nature totaling $4,723.60, which were
charged to his Commonwealth issued credit card, during the period from December
10, 2007, through July 13, 2010.
14. Monthly account statements covering the period from January 10, 2008, through
December 1, 2010, reflect that Anderson’s Commonwealth credit card account had
a zero balance only three (3) times prior to it being paid in full on or about
December 1, 2010.
Anderson, 10-043
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15. On September 22, 2010, Anderson was notified by Trudy Miller, Agency
Coordinator, Travel Card Program ... that the corporate account was past due.
16. Anderson owed a balance of $2,329.22, as of August 10, 2010.
a. Anderson continued carrying a balance on this account until a final payment
was posted to the account effective December 1, 2010.
b. Any outstanding balance owed at the time of Anderson’s separation from
Commonwealth employment has been paid in full by Anderson, including all
interest charges.
The following findings relate to allegations that Anderson used L & I equipment and
facilities in furtherance of his private interests.
17. During his term of employment with L & I from May 2006 through July 2010,
Anderson utilized L & I facilities and equipment in furtherance of his private
interests.
a. Anderson used Commonwealth owned equipment, materials and/or facilities
to complete college curriculum work and advance his private consulting
services, individually and/or through Anderson & Marshall Consultants.
18. Anderson, in his official capacity as BEP Coordinator, was provided with
th
Commonwealth office space on the first floor of 1521 North 6 Street, Harrisburg,
Pennsylvania.
th
a. 1521 North 6 Street, Harrisburg is the primary office location for the
Pennsylvania Department of Labor and Industry, Office of Vocational
Rehabilitation, and its Business Enterprise Program.
b. Anderson’s office was in a secure building with visitors being required to
sign in on a visitor’s log.
19. Since at least 2006, Anderson has been enrolled as a doctoral degree candidate in
organizational management and leadership at Capella University.
a. Anderson maintained documents relating to his curriculum on his
Commonwealth computer’s “D” drive, under “Backup School Items,” folder
name “Dissertation Backup.”
20. Anderson used his Commonwealth office space, listed in the previous finding, to
routinely work on educational projects in the pursuit of a doctoral degree during
normal Commonwealth business hours.
21. On January 23, 2010, Anderson installed a folder titled “Dissertation Backup” onto
his Commonwealth computer.
a. Anderson did not have authorization from L & I to utilize his Commonwealth
computer for non-Commonwealth activities.
1. Anderson purports that he believed he had his supervisor’s authority
to utilize his Commonwealth equipment for non-Commonwealth
purposes.
b. This folder contained documents, which were created and edited by
Anderson between February 15, 2008, and January 23, 2010.
Anderson, 10-043
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22. Three (3) of the documents contained in the folder titled “Dissertation Backup” were
authored on Anderson’s Commonwealth computer under Anderson’s
Commonwealth username “rdanderson.”
23. The folder “Dissertation Backup” contained five (5) folders with approximately thirty-
five (35) Word PDF, picture and/or Internet files, and an additional fifty-three (53)
files not contained in a specific folder within the main “Dissertation Backup” folder.
24. All items contained in the “Dissertation Backup” folder and subfolders related to
research and/or curriculum work towards Anderson’s pursuit of a doctoral degree
from Capella University.
a. None of these items related to Anderson’s official duties as the BEP
Coordinator.
25. Anderson used his Commonwealth email address, rdanderson@state.pa.us, as a
point of contact on correspondence relating to doctoral degree research.
26. Beginning in or about 2008, Anderson used Commonwealth facilities and
equipment in furtherance of a private consulting business he formed in conjunction
with Andrew Marshall, known as Anderson & Marshall Consultants (a/k/a A & M
Consultants).
27. Business filings with the Pennsylvania Department of State for A & M Consultants,
LLC reflect that a certificate of organization as a domestic limited liability company
was filed on December 18, 2007.
a. Entity number 3776604 was assigned by the Pennsylvania Department of
State to A & M Consultants, LLC.
b. The registered office is listed as the home address of Andrew Marshall.
c. Organizers were identified as Robert D. Anderson, Lancaster, PA 17603 and
Andrew Marshall, Lancaster, PA 17603.
d. The effective date of the business filing was January 1, 2008.
e. On August 4, 2008, the registered address of A & M Consultants, LLC was
changed to the home address of Robert D. Anderson.
f. Andrew Marshall withdrew from the business on or about July 1, 2008.
28. Anderson did not obtain supplemental employment approval from L & I for his
involvement with A & M Consultants.
a. He did list A & M Consultants as a source of income on Statement of
Financial Interests and Governor’s Code of Conduct forms filed for the 2008
and 2009 calendar years, and a Code of Conduct form for the 2010 calendar
year.
29. Robert Anderson disclosed his involvement with A & M Consultants, LLC to several
subordinate employees in the Office of Vocational Rehabilitation (“OVR”) Business
Enterprise Program.
30. A & M Consultants, LLC did not have any contracts to provide consulting services to
the Office of Vocational Rehabilitation or its Business Enterprise Program.
Anderson, 10-043
Page 6
a. Anderson did not have authorization to use Commonwealth equipment or
facilities in furtherance of his private consulting business (A & M
Consultants, LLC) activities.
31. Since about 2008, Anderson utilized his Commonwealth issued laptop in connection
with A & M Consultants, LLC business activities.
a. Anderson edited and stored business consulting files on his Commonwealth
computer.
b. This work product did not relate in any way to Anderson’s responsibilities as
OVR’s BEP Coordinator.
32. In or about June 2009, OVR purchased a laptop, monitor and docking station for
Anderson’s Commonwealth use.
a. The cost to the Commonwealth for this equipment was $1,463.00.
33. On January 24, 2010, at 4:04 p.m., Anderson installed a folder onto his
Commonwealth computer/hard drive identified above, titled “Anderson & Marshall
Consultants” folder.
a. Anderson & Marshall Consultants did not have any business relationship
with the Commonwealth.
34. Contained within the “Anderson & Marshall Consultants” folder were approximately
1386 folders, subfolders, files and/or photos.
a. These documents did not relate to Anderson’s official duties with the
Commonwealth.
b. These files included Word documents, Excel, PowerPoint, and photo
images.
35. On January 24, 2010, at 4:07 p.m., Anderson copied the “Anderson & Marshall
Consultants” folder onto his Commonwealth computer desktop area, locating the
copied version in a folder titled “Anderson laptop 1.”
36. Anderson’s use of a Commonwealth computer in furtherance of matters relating to A
& M Consultants, LLC and for a doctoral dissertation were impermissible uses of
Commonwealth property.
The following findings relate to the allegations concerning Anderson
nolle prossed
and A & M Business Enterprises, Inc. (“AMBE”).
37. Business filings for A & M Business Enterprises with the Pennsylvania Department
of State reflect that a certificate of organization for a domestic limited liability
company was filed on July 14, 2008.
a. Andrew Marshall is identified as the sole organizer.
b. Robert Anderson is identified as a paid employee of AMBE on an executive
file maintained on Anderson’s Commonwealth computer.
c. Both Anderson and Andrew Marshall purport that Anderson was not an
employee of AMBE and did not have a financial or other interest in AMBE.
Anderson, 10-043
Page 7
38. During Anderson’s tenure as BEP Coordinator, AMBE was involved with two (2)
separate vending contracts: one for vending services at U.S. postal facilities located
within the Commonwealth, and a second contract with the Pennsylvania
Department of General Services (“DGS”) for vending services in Commonwealth
owned and leased facilities.
a. The U.S. postal facilities contract detailed below was awarded to Culinary
Holdings, Inc. (“CHI”), Union, New Jersey, effective July 1, 2009.
1. AMBE is the stated point of contact representing CHI on this contract.
b. The DGS state facilities contract detailed below was awarded to AMBE with
an effective date of July 9, 2010.
39. Anderson, as an employee of L & I, engaged in the following actions regarding
AMBE:
a. Participating in official actions as BEP Coordinator on contracts ultimately
awarded to AMBE for vending management services through L & I’s Office of
Vocational Rehabilitation.
b. A Commonwealth computer was utilized in furtherance of AMBE business
initiatives.
40. OVR followed the same process in awarding contracts for vending services at post
office locations as it did with awarding contracts for state owned/leased facilities.
41. As BEP Coordinator, Anderson engaged in the same roles with both contracts [in
which] AMBE maintained an interest, namely the postal facilities and DGS state
facilities [contracts].
42. Around May 2009, AMBE developed a Statement of Work for vending services at
U.S. postal facilities within the Commonwealth.
43. Effective July 1, 2009, Culinary Holdings Inc. (“CHI”) was awarded contract number
4400005464 to handle vending operations in U.S. postal facilities throughout the
Commonwealth.
a. This contract was issued on June 15, 2009.
b. The term of this contract was July 1, 2009, through June 30, 2012.
c. As part of the contract, AMBE served as the point of contact representing
CHI.
1. Andrew Marshall is identified as the contact person on behalf of
AMBE.
d. Robert Anderson is the stated point of contact on this contract, representing
L & I’s Bureau of Blindness and Visual Services.
44. Business filings with the Pennsylvania Department of State include a Certificate of
Organization for Culinary Operations, LLC, which was filed on August 7, 2009.
a. Entity number 3898422 was assigned to Culinary Operations, LLC.
Anderson, 10-043
Page 8
b. The registered address was “c/o A & M Business Enterprises, LLC,
Lancaster, PA.”
c. The stated organizer was Joseph F. Belasco, c/o Culinary Holdings, Inc.,
Union, NJ.
45. AMBE created a Statement of Work dated July 1, 2008, for services to be provided
by AMBE for Culinary Ventures Vending.
a. This two (2) page document was created on Anderson’s Commonwealth
computer under the author/user “rdanderson.”
46. This Statement of Work did not relate to any of Anderson’s official duties as the
BEP Coordinator.
a. The Statement of Work related to AMBE securing contracts with CHI, which
were subject to Anderson’s review as BEP Coordinator.
47. Anderson’s Commonwealth computer was also utilized to draft a consulting
agreement between A & M Business Enterprises and Culinary Ventures Vending on
July 27, 2008.
48. The consulting agreement had an effective date of July 1, 2008, and referenced the
“attached Statement of Work.”
49. This consulting agreement … did not relate to any of Anderson’s official duties as
the BEP Coordinator.
a. Andrew Marshall purports that he was the person who created and/or edited
AMBE documents on Anderson’s Commonwealth computer.
50. Early in 2010, AMBE began developing a Statement of Work for the management of
vending operations at all Commonwealth owned facilities.
51. On June 15, 2010, AMBE submitted a bid for the BBVS/DGS Vending Contract.
52. Andrew Marshall, President/CEO of AMBE, submitted AMBE’s bid.
a. An “Executive Summary” submitted for the BBVS Vending Contract outlined
services to be provided by AMBE, including accountability, support, training,
quality service and financial.
b. AMBE described itself as being “the primary contractor for the project and
(would) provide the transition, training, counseling and ongoing management
reporting to support (the) this proposal.”
53. During the time period of 2010, Anderson directed Vondol Hammond, a subordinate
employee, to order vending repair services for some Commonwealth owned
vending machines through AMBE.
a. AMBE was not on state contract to repair vending machines.
b. OVR had vending machine repair vendors on contract at the time of these
repairs.
c. OVR was experiencing difficulty in finding a vendor in this geographic area.
Anderson, 10-043
Page 9
54. Between April 26, 2010, and June 24, 2010, eight invoices totaling $2,274.16 were
issued from AMBE to OVR for repairs to vending machines at locations in Wilkes-
Barre and Waymart.
55. Between 2008 and 2010, Anderson’s Commonwealth computer was utilized to view,
edit and create spreadsheets, PowerPoint presentations, proposals,
correspondence, and business summary documents relating to AMBE.
a. None of this work related to Anderson’s official duties as BEP Coordinator.
b. Within these documents Anderson was identified as being a member of
AMBE’s Management Team.
56. In October 2009 and January 2010, Anderson authored two (2) pieces of
correspondence on L & I stationery relating to AMBE.
a. Both were authored and edited by Anderson on his Commonwealth computer
under user name “rdanderson.”
57. On October 14, 2009, Anderson authored a one (1) page letter to Andrew Marshall,
President/CEO of AMBE.
a. The basis for this letter was to thank Marshall and AMBE for their dedication
to customer service.
b. Anderson signed this letter in his official capacity as Business Enterprise
Program Coordinator.
c. Anderson created and edited this document on his Commonwealth computer
under user name “rdanderson.”
58. On January 13, 2010, Anderson edited correspondence dated December 21, 2009,
on L & I stationery, to Edna Nicodemus, Department of Homeland Security, on his
Commonwealth computer under user name “rdanderson.”
a. In this letter, Anderson writes that “A & M Business Enterprises is a primary
contract vendor for Department of Labor & Industry, Bureau of Blindness and
Visual Services Business Enterprise Program and CRH is an approved sub-
contractor for A & M Business Enterprises. Please allow the local sub-
contractor to provide vending services to your facility.”
b. AMBE was not a primary contract vendor with L & I in December 2009 or
January 2010.
c. Anderson signed this letter as Coordinator of the Business Enterprise
Program.
59. The allegations regarding Anderson and A & M Business Enterprises, Inc. (“AMBE”)
were nolle prossed as part of a negotiated settlement agreement, in that in light of
the foregoing facts, there is insufficient evidence to establish the requisite elements
of a violation under 65 Pa.C.S. § 1103(a).
The following findings relate to allegations that Anderson failed to list all sources of
income in excess of $1,300.00 on Statement of Financial Interests (“SFI”) forms filed
for calendar years 2005, 2006, 2007, [and 2009]; failed to list creditors in excess of
$6,500.00 on SFIs filed for the 2008 and 2009 calendar years; and failed to list office,
directorship or employment in any business on his SFI filed for the 2007 calendar
Anderson, 10-043
Page 10
year and his financial interest in any entity in business for profit on SFIs filed for
calendar years 2007, 2008 and 2009.
60. Anderson, in his official capacities as an Administrative Officer 2 with the
Pennsylvania Department of Education (September 7, 2004-May 12, 2006) and an
Administrative Officer 3 with the Pennsylvania Department of Labor and Industry
(May 13, 2006 – present*) was annually required to file Statement of Financial
st
Interests and Governor’s Code of Conduct forms by May 1 containing information
for the prior calendar year.
a. Anderson was made aware of these filing requirements no later than May 13,
2006, when he was promoted to the position of Administrative Officer 3 with
the Department of Labor and Industry, Bureau of Blindness and Visual
Services.
b. Anderson asserts that it was his belief that even though he was completing
two separate forms, the Governor’s Code of Conduct form and the Statement
of Financial Interests form, his understanding was that they would be merged
into one filing.
*[sic] [See, Fact Finding 1 c].
61. Governor’s Code of Conduct forms require disclosure of personal economic
interests, business interests, liabilities employment, real property interests,
severance payments and gifts.
62. Anderson, in his official capacity as an Administrative Officer 3 for the Department
of Labor and Industry, filed Code of Conduct forms for calendar years 2005 through
2010.
63. Anderson, in his official capacity as an Administrative Officer 3 for the Department
of Labor and Industry, filed Statement of Financial Interests forms for calendar
years 2005 through 2010.
64. A comparison of information disclosed on both Governor’s Code of Conduct and
Statement of Financial Interests filings and known employment information found
the following deficiencies on SFI forms filed by Anderson:
a. Calendar Year: 2009
1. Anderson failed to disclose a Federal Stafford Loan as a creditor in
excess of $6,500.00 on this filing.
2. Anderson failed to disclose all sources of income in excess of
$1,300.00 on this filing.
3. Anderson failed to disclose his financial interest in A & M Consultants
on this filing.
b. Calendar Year: 2008
1. Anderson failed to disclose his financial interest in A & M Consultants
on this filing.
c. Calendar Year: 2007
1. Anderson failed to disclose his financial interests, office, directorship
Anderson, 10-043
Page 11
or employment, and income regarding A & M Consultants on this
filing.
d. Calendar Year: 2006
1. Anderson failed to disclose the Pennsylvania Department of
Education as a source of income in excess of $1,300.00 on this filing.
e. Calendar Year: 2005
1. Anderson failed to disclose all sources of income [in excess of
$1,300.00], including the Pennsylvania Department of Education….
65. Income that Anderson received as a result of private security work was included as
business income for A & M Consultants on Federal income tax returns filed by
Anderson since 2007.
66. Anderson realized a private pecuniary gain as a result of utilizing a Commonwealth
issued credit card for purchases of a personal nature.
a. Anderson paid the balance owed on this credit account.
67. Anderson realized a private pecuniary benefit through the use of Commonwealth
owned equipment and facilities for non-Commonwealth activities.
a. Anderson returned the laptop computer to the Commonwealth following his
separation from public employment.
68. Anderson d/b/a A & M Consultants received a private pecuniary gain as a result of
Anderson’s use of Commonwealth equipment, space and time in furtherance of A &
M business.
III.DISCUSSION:
As the Business Enterprise Program Coordinator/an Administrative Officer 3 with
the Office of Vocational Rehabilitation within the Pennsylvania Department of Labor and
Industry (“Labor and Industry”) from May 13, 2006, until on or about April 20, 2012,
Respondent Robert Anderson, hereinafter also referred to as “Respondent,” “Respondent
Anderson,” and “Anderson,” was a 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 Anderson violated Sections 1103(a) and 1105(b) of the
Ethics Act: (1) when he used the authority of his public position for a private pecuniary
benefit of himself and/or a business with which he is associated by participating in the
drafting of specifications for state contracts and supervision of contracts awarded to A & M
Business Enterprises, Inc., a business with which he is associated; (2) when he directed
Labor and Industry employees to utilize the services of A & M Business Enterprises, Inc.;
(3) when he used Commonwealth materials, equipment and/or facilities in furtherance of
his personal interests; (4) when he used a Commonwealth issued credit card to make
purchases of a personal nature; (5) when he failed to list on Statements of Financial
Interests (“SFIs”) filed for the 2005, 2006, 2007, and 2009 calendar years all direct/indirect
sources of income; (6) when he failed to disclose all creditors in excess of $6,500 on SFIs
filed for the 2008 and 2009 calendar years; (7) when he failed to disclose his office,
directorship, or employment in any business on an SFI filed for the 2007 calendar year;
and (8) when he failed to disclose on SFIs filed for the 2007, 2008, and 2009 calendar
years his financial interest in any entity in business for profit.
Anderson, 10-043
Page 12
Per the Consent Agreement of the parties, the Investigative Division has exercised
its prosecutorial discretion to nol pros the allegations arising under Section 1103(a) of the
Ethics Act that Anderson used the authority of his public position for a private pecuniary
benefit of himself and/or a business with which he is associated by participating in the
drafting of specifications for state contracts and supervision of contracts awarded to A & M
Business Enterprises, Inc., a business with which he is associated, and when he directed
Labor and Industry employees to utilize the services of A & M Business Enterprises, Inc.
Based upon the nol pros, we need not address those allegations that are no longer before
us.
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 1105(b) of the Ethics Act and its subsections detail the financial disclosure
that a person required to file the SFI form must provide.
Subject to certain statutory exceptions not applicable to this matter, Section
1105(b)(4) of the Ethics Act requires the filer to disclose on the SFI the name and address
of each creditor to whom is owed in excess of $6,500 and the interest rate thereon.
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 SFI the name and address
of any direct or indirect source of income totaling in the aggregate $1,300 or more.
Anderson, 10-043
Page 13
Section 1105(b)(8) of the Ethics Act requires the filer to disclose on the SFI any
office, directorship or employment in any business entity.
Section 1105(b)(9) of the Ethics Act requires the filer to disclose on the SFI any
financial interest in any legal entity engaged in business for profit. The term “financial
interest” is defined in the Ethics Act as “[a]ny financial interest in a legal entity engaged in
business for profit which comprises more than 5% of the equity of the business or more
than 5% of the assets of the economic interest in indebtedness.” 65 Pa.C.S. § 1102.
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.
Anderson was employed by the Pennsylvania Department of Education, Bureau of
Career and Technical Education, as an Administrative Officer 2 from approximately
September 7, 2004, until May 12, 2006. Effective May 13, 2006, Anderson was promoted
to a position with the Bureau of Blindness and Visual Services (“BBVS”), a department
within Labor and Industry’s Office of Vocational Rehabilitation (“OVR”). Anderson’s
specific job title with BBVS was Administrative Officer 3, and he was the Business
Enterprise Program (“BEP”) Coordinator. Anderson separated from Commonwealth
employment on or about April 20, 2012, effective December 16, 2010.
In connection with his promotion, Anderson was informed by way of correspondence
dated April 21, 2006, that the position was covered under the financial disclosure
provisions of the Ethics Act and the Governor’s Code of Conduct. On February 13, 2008,
Anderson, as a Labor and Industry employee, completed online training for “Ethics in the
workplace.”
Anderson, in his official capacity as an Administrative Officer 3 for Labor and
Industry, was issued a Commonwealth credit card for use on official Commonwealth
business and travel. On March 31, 2005, Anderson signed a PNC Commonwealth credit
card user agreement which included the following cautionary language regarding personal
use of the credit card: “you expressly agree that the card and account will only be used for
business purposes and for business travel and entertainment expenses relating to the
Commonwealth. You expressly agree that the card and the account will not be used for
personal, family, or household purposes.” Fact Finding 11(a).
Anderson was reimbursed by the Commonwealth for all official charges on his
Commonwealth issued credit card. Between December 10, 2007, and July 13, 2010,
Anderson used his Commonwealth issued credit card to make purchases of a personal
nature totaling $4,723.60. Anderson paid any charge considered personal along
with any interest generated by such purchase.
On September 22, 2010, Trudy Miller, Agency Coordinator, Travel Card Program,
notified Anderson that the corporate account was past due. Anderson owed a balance of
$2,329.22 as of August 10, 2010, and he continued carrying a balance on this account
until a final payment was posted to the account effective December 1, 2010. Any monthly
balances would have been the result of Anderson’s failure to pay for personal charges
made to his Commonwealth credit card account. Pursuant to Travel Procedure Manual
230.1, effective July 1, 2009, Anderson would have been responsible for all unpaid,
uncontested balances. Any outstanding balance owed at the time of Anderson’s
separation from Commonwealth employment has been paid in full by Anderson, including
all interest charges.
The parties have stipulated that Anderson realized a private pecuniary gain as a
result of utilizing a Commonwealth issued credit card for purchases of a personal nature.
Anderson, 10-043
Page 14
Anderson, in his official capacity as the BEP Coordinator, was provided with
Commonwealth office space on the first floor of the primary office location for OVR at 1521
North 6th Street, Harrisburg, Pennsylvania. While an employee of Labor and Industry,
Anderson had access to Commonwealth owned technology and computers, and he had a
Commonwealth owned laptop computer issued to him. During his term of employment with
Labor and Industry, Anderson used Commonwealth owned equipment, materials, and/or
facilities in furtherance of his private interests.
Beginning in or about 2008, Anderson used Commonwealth facilities and equipment
in furtherance of a private consulting business, A & M Consultants, LLC (“A & M
Consultants”), that he formed in conjunction with Andrew Marshall. Since about 2008,
Anderson utilized his Commonwealth issued laptop in connection with A & M Consultants’
business activities. Anderson edited and stored business consulting files on his
Commonwealth computer which did not relate in any way to his responsibilities as the BEP
Coordinator.
On January 24, 2010, Anderson installed a folder titled “Anderson & Marshall
Consultants” onto his Commonwealth computer/hard drive. Contained within the
“Anderson & Marshall Consultants” folder were approximately 1386 folders, subfolders,
files and/or photos which did not relate to Anderson’s official duties with the
Commonwealth.
The parties have stipulated that Anderson d/b/a A&M Consultants received a private
pecuniary gain as a result of Anderson’s use of Commonwealth equipment, space and time
in furtherance of A&M business.
Since at least 2006, Anderson has been enrolled as a doctoral degree candidate in
organizational management and leadership at Capella University. Anderson used his
Commonwealth office space to routinely work on educational projects in the pursuit of a
doctoral degree during normal Commonwealth business hours.
Anderson used his Commonwealth email address as a point of contact on
correspondence relating to doctoral degree research, and he maintained documents
relating to his curriculum work on his Commonwealth computer’s “D” drive. On January
23, 2010, Anderson installed a folder titled “Dissertation Backup” onto his Commonwealth
computer. The “Dissertation Backup” folder and its subfolders contained approximately 88
files, all of which related to research and/or curriculum work towards Anderson’s pursuit of
a doctoral degree from Capella University and not to Anderson’s official duties as the BEP
Coordinator. Three documents contained in the “Dissertation Backup” folder were
authored on Anderson’s Commonwealth computer under Anderson’s Commonwealth
username, “rdanderson.”
Anderson did not have authorization from Labor and Industry to utilize his
Commonwealth computer for non-Commonwealth activities. The parties have stipulated
that Anderson realized a private pecuniary benefit through the use of Commonwealth
owned equipment and facilities for non-Commonwealth activities.
Anderson, in his official capacities as an Administrative Officer 2 with the
Pennsylvania Department of Education and an Administrative Officer 3 with Labor and
Industry, was required to annually file an SFI by May 1 containing information for the prior
calendar year.
Anderson failed to disclose: (1) all sources of income in excess of $1,300, including
the Pennsylvania Department of Education, on his SFI for calendar year 2005; (2) the
Pennsylvania Department of Education as a source of income in excess of $1,300 on his
SFI for calendar year 2006; and (3) all sources of income in excess of $1,300 on his SFI
Anderson, 10-043
Page 15
for calendar year 2009. Anderson listed A & M Consultants as a source of income on his
SFIs for calendar years 2008 and 2009 but did not disclose income regarding A & M
Consultants on his SFI for calendar year 2007.
Anderson failed to disclose his office, directorship or employment in A & M
Consultants on his SFI for calendar year 2007 or his financial interest in A & M
Consultants on his SFIs for calendar years 2007, 2008 and 2009.
Anderson failed to disclose the creditor for a Federal Stafford Loan as a creditor
owed in excess of $6,500 on his SFI for calendar year 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 recommends the following in
relation to the above allegations:
a. The allegations arising under Section 1103(a) of
the Public Official and Employee Ethics Act, 65
Pa.C.S. § 1103(a), that Anderson used the
authority of his public position for a private
pecuniary benefit of himself and/or a business
with which he is associated by participating in
the drafting of specifications for state contracts
and supervision of contracts awarded to A & M
Business Enterprises, Inc., a business with
which he is associated; and when he directed
Labor & Industry employees to utilize the
services of A & M Business Enterprises, Inc., are
hereby nolle prossed, in that there is insufficient
evidence to establish the requisite elements of a
violation of 65 Pa.C.S. § 1103(a) by clear and
convincing evidence;
b. That a violation of Section 1103(a) of the Public
Official and Employee Ethics Act, 65 Pa.C.S. §
1103(a), occurred when Anderson used
Commonwealth materials, equipment and/or
facilities in furtherance of his personal interests;
and when he utilized a Commonwealth issued
credit card to make purchases of a personal
nature;
c. That a violation of Section 1105(b) of the Public
Official and Employee Ethics Act, 65 Pa.C.S. §
1105(b), occurred when Anderson failed to list
on Statements of Financial Interests filed for the
2005, 2006, 2007 and 2009 calendar years all
direct/indirect sources of income; failed to
disclose all creditors in excess of $6,500 on
Statements of Financial Interests filed for the
2008 and 2009 calendar years; failed to disclose
his office, directorship, or employment in any
business on a Statement of Financial Interests
Anderson, 10-043
Page 16
filed for the 2007 calendar year; and when he
failed to disclose on Statements of Financial
Interests filed for the 2007, 2008 and 2009
calendar years his financial interest in any entity
in business for profit.
4. Anderson agrees to make payment in the amount of $1,250.00
in settlement of this matter payable to the Commonwealth of
Pennsylvania and forwarded to the Pennsylvania State Ethics
Commission within thirty (30) days of the issuance of the final
adjudication in this matter.
a. The $1,250.00 represents a Civil Penalty for
failing to file complete and accurate Statement of
Financial Interests forms for calendar years
2005 through and including 2008.
5. Anderson agrees to file amended Statements of Financial
Interests with the Department of Labor and Industry, through
the Pennsylvania State Ethics Commission, for [the] 2005,
2006, 2007, 2008 and 2009 calendar years within thirty (30)
days of the issuance of the final adjudication in this matter.
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 2-3.
In considering the Consent Agreement, we accept the recommendation of the
parties for a finding that a violation of Section 1103(a) of the Ethics Act occurred when
Anderson used Commonwealth materials, equipment and/or facilities in furtherance of his
personal interests and when he utilized a Commonwealth issued credit card to make
purchases of a personal nature.
It is axiomatic that Section 1103(a) of the Ethics Act prohibits the use of
governmental facilities, equipment, time, and the like for private purposes. See, e.g.,
Sindiri, Order 1572; Debias, Order 1539; Neff, Order 1498; Morton, Order 1491; Rembold,
Order 1417; Cobb, Order 1354; Confidential Opinion, 05-001.
Anderson, while an employee of Labor and Industry, was provided with
Commonwealth office space, and he had access to Commonwealth owned technology and
computers. Beginning in or about 2008, Anderson utilized a Commonwealth owned laptop
computer to edit and store business consulting files connected with the activities of A & M
Consultants, a private consulting business which he formed in conjunction with Andrew
Marshall. Anderson used his Commonwealth office space to routinely work on educational
projects in the pursuit of a doctoral degree from Capella University, and he maintained
documents/files relating to doctoral degree research and/or curriculum work on his
Commonwealth computer. Between December 10, 2007, and July 13, 2010, Anderson
used his Commonwealth issued credit card to make purchases of a personal nature
totaling $4,723.60. Anderson paid any charge considered personal along with any interest
Anderson, 10-043
Page 17
generated by such purchase. The parties have stipulated that Anderson realized a private
pecuniary benefit through the use of Commonwealth owned equipment and facilities for
non-Commonwealth activities and the use of a Commonwealth issued credit card for
purchases of a personal nature. The parties have stipulated that Anderson d/b/a A&M
Consultants received a private pecuniary gain as a result of Anderson’s use of
Commonwealth equipment, space and time in furtherance of A&M business.
Based upon the Stipulated Findings and Consent Agreement, we hold that a
violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when
Anderson used Commonwealth materials, equipment and/or facilities in furtherance of his
personal interests (cf., Pagan, Order 1466) and when he utilized a Commonwealth issued
credit card to make purchases of a personal nature (cf., Pierce, Order 1449).
As for the allegations regarding Anderson’s SFIs, it is clear that Anderson failed to
disclose: (1) all sources of income in excess of $1,300 on his SFIs for calendar years
2005, 2006, 2007 and 2009; (2) his office, directorship or employment in A & M
Consultants on his SFI for calendar 2007; (3) his financial interest in A & M Consultants on
his SFIs for calendar years 2007, 2008 and 2009; and (4) the creditor for a Federal
Stafford Loan as a creditor owed in excess of $6,500 on his SFI for calendar year 2009.
The Stipulated Findings do not identify the particular creditor(s) to whom Anderson owed
in excess of $6,500 but which he failed to disclose on his SFI for calendar year 2008.
However, the parties are in agreement that at least one such creditor was not disclosed by
Anderson on his SFI for calendar year 2008.
We hold that a violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b),
occurred when Anderson failed to list on SFIs filed for the 2005, 2006, 2007 and 2009
calendar years all direct/indirect sources of income; when he failed to disclose all creditors
in excess of $6,500 on SFls filed for the 2008 and 2009 calendar years; when he failed to
disclose his office, directorship, or employment in any business on an SFI filed for the
2007 calendar year; and when he failed to disclose on SFIs filed for the 2007, 2008 and
2009 calendar years his financial interest in any entity in business for profit.
As part of the Consent Agreement, Anderson has agreed to make payment in the
amount of $1,250.00 in settlement of this matter payable to the Commonwealth of
Pennsylvania and forwarded to this Commission within thirty (30) days of the issuance of
the final adjudication in this matter.
Anderson has further agreed to file with Labor and Industry, through this
Commission, amended SFIs for the 2005, 2006, 2007, 2008, and 2009 calendar years
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, Anderson is directed to
make payment in the amount of $1,250.00 payable to the Commonwealth of Pennsylvania
th
and forwarded to this Commission by no later than the thirtieth (30) day after the mailing
date of this adjudication and Order.
Anderson is further directed to file with Labor and Industry, through this
Commission, amended SFIs for the 2005, 2006, 2007, 2008, and 2009 calendar years 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.
Anderson, 10-043
Page 18
IV.CONCLUSIONS OF LAW:
1. As the Business Enterprise Program Coordinator/an Administrative Officer 3 with
the Office of Vocational Rehabilitation within the Pennsylvania Department of Labor
and Industry from May 13, 2006, until on or about April 20, 2012, Respondent
Robert Anderson (“Anderson”) was a public employee subject to the provisions of
the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et
seq.
2. Anderson violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he
used Commonwealth materials, equipment and/or facilities in furtherance of his
personal interests and when he utilized a Commonwealth issued credit card to
make purchases of a personal nature.
3. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred
when Anderson failed to list on Statements of Financial Interests filed for the 2005,
2006, 2007 and 2009 calendar years all direct/indirect sources of income; when he
failed to disclose all creditors in excess of $6,500 on Statements of Financial
Interests filed for the 2008 and 2009 calendar years; when he failed to disclose his
office, directorship, or employment in any business on a Statement of Financial
Interests filed for the 2007 calendar year; and when he failed to disclose on
Statements of Financial Interests filed for the 2007, 2008 and 2009 calendar years
his financial interest in any entity in business for profit.
In Re: Robert Anderson, : File Docket: 10-043
Respondent : Date Decided: 9/24/12
: Date Mailed: 10/5/12
ORDER NO. 1605
1. As the Business Enterprise Program Coordinator/an Administrative Officer 3 with
the Office of Vocational Rehabilitation within the Pennsylvania Department of Labor
and Industry, Robert Anderson (“Anderson”) violated Section 1103(a) of the Public
Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), when he
used Commonwealth materials, equipment and/or facilities in furtherance of his
personal interests and when he used a Commonwealth issued credit card to make
purchases of a personal nature.
2. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred
when Anderson failed to list on Statements of Financial Interests filed for the 2005,
2006, 2007 and 2009 calendar years all direct/indirect sources of income; when he
failed to disclose all creditors in excess of $6,500 on Statements of Financial
Interests filed for the 2008 and 2009 calendar years; when he failed to disclose his
office, directorship, or employment in any business on a Statement of Financial
Interests filed for the 2007 calendar year; and when he failed to disclose on
Statements of Financial Interests filed for the 2007, 2008 and 2009 calendar years
his financial interest in any entity in business for profit.
3. Per the Consent Agreement of the parties, Anderson is directed to make payment in
the amount of $1,250.00 payable to the Commonwealth of Pennsylvania and
forwarded to the Pennsylvania State Ethics Commission by no later than the
th
thirtieth (30) day after the mailing date of this Order.
4. Anderson is directed to file with the Pennsylvania Department of Labor and
Industry, through the Pennsylvania State Ethics Commission, amended Statements
of Financial Interests for the 2005, 2006, 2007, 2008, and 2009 calendar years by
th
no later than the thirtieth (30) day after the mailing date of this Order.
5. Compliance with Paragraphs 3 and 4 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,
___________________________
John J. Bolger, Chair