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HomeMy WebLinkAbout1611 Davis In Re: Gary Davis, : File Docket: 11-025 Respondent : X-ref: Order No. 1611 : Date Decided: 1/28/13 : Date Mailed: 2/13/13 Before: John J. Bolger, Chair Nicholas A. Colafella, Vice Chair Raquel K. Bergen Mark Volk Mark R. Corrigan Roger Nick 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 not filed and a hearing was deemed waived. 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 Gary Davis, a public official/public employee in his capacity as a Member and Chairman of the City of Jeanette Municipal Authority, violated Sections 1103(a), 1104(a), 1104(d) and 1105(b) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a), 1104(a), 1104(d) and 1105(b), when he used the authority of his public position for the private pecuniary benefit of himself and/or a member of his immediate family when he participated in discussions, evaluations and decisions of the Authority Board, including but not limited to, reviewing applicants to be interviewed, directing that his spouse be interviewed, participating in applicant interviews including that of his spouse, and participating in Authority executive sessions, resulting in the hiring of his spouse for a compensated position with the Authority; when he failed to file a Statement of Financial Interests for the 2009 calendar year and when he failed to disclose on a Statement of Financial Interests for the 2010 calendar year his occupation and/or profession, direct and/or indirect sources of income, and office, directorship or employment in any business. II.FINDINGS: 1. Gary Davis has served as a Member of the City of Jeannette Municipal Authority (hereafter, “Authority”) Board of Directors from February 2010 to the present. a. Davis has served as the Chairman of the Board since January 2011. Davis, 11-025 Page 2 2. The Authority is governed by a five Member Board of Directors (hereafter, “Board”). a. The Board holds regular monthly meetings at the Authority Plant on the first Tuesday of each month. b. Typical attendees at Authority Board meetings include the Board, the Authority Solicitor, Moe Lewis, Authority Superintendent Douglas Pike, Authority Engineer Bob Bible and Secretary Mary Beth Smaracheck. c. Special meetings, to include executive sessions, are held when necessary. 1. The Solicitor, Engineer and Secretary attend executive sessions upon request by the Board or Superintendent. 3. Voting at Authority Board meetings may occur via a roll call or group aye/nay fashion depending on the issue at hand. a. A roll call vote is utilized for personnel matters, projects and controversial issues. b. A group aye/nay vote is utilized for the approval of minutes and monthly expenditures. c. All objections and abstentions are noted within the minutes. 4. The Secretary is responsible for the generation of the minutes. a. The minutes of each meeting are approved for accuracy at each subsequent meeting. b. The Secretary takes notes to assist in generating the minutes. 1. Authority Board meetings are not audio recorded. 5. The Superintendent and all Board Members hold signature authority over Authority accounts. a. Authority checks require the live signatures of any combination of two authorized signatories. b. Signature stamps are not utilized. 6. Authority Board Members receive a monthly meeting packet prior to each Board meeting. a. The packets are compiled by Smaracheck as the Authority Secretary. b. The packets are hand delivered by an Authority employee to Board Members the Friday prior to the meeting. c. Items included within the monthly meeting packet include the previous month’s minutes, correspondences, Treasurer’s report and a monthly expense report. 7. Each week the Plant Superintendent and at least one Board Member review, initial, and date weekly expense reports and respective checks generated by Smaracheck for preliminary approval. Davis, 11-025 Page 3 a. The review, initialing, and dating occurs at the Authority’s Sewage Treatment Plant (hereafter, “Plant”) during normal Plant hours (7:00 a.m.-3:00 p.m.). 1. The Plant serves as the main/administrative office for the Secretary and Plant Superintendent. 2. The Plant is located at 1000 Railroad Street, Penn, PA 15675. b. Preliminary approval is signified via initialing and dating by the Plant Superintendent and one Board Member. 1. The Board Member participating in the review is based on individual availability. c. The weekly expense report generated documents the check date, number, payee, memo, and amount for all checks generated. 8. The weekly expense reports compose the monthly expense report that is included within the meeting packet distributed to the Authority Board Members. a. The Board approves the monthly expense report at each regular monthly meeting. b. The monthly expense report documents all expenses incurred by the Authority since the prior Authority meeting, including payroll. 1. The monthly expense report is simply a compilation of the weekly expense reports generated by Smaracheck since the prior Authority meeting. 9. Payroll is completed on a bi-weekly basis by Smaracheck. a. A bi-weekly payroll report is generated contemporaneously to the generation of the payroll checks. b. The report lists the employee, check number, and net pay. 10. Employee paychecks are attached to the payroll report for the review/approval of the Superintendent and at least one Board Member. a. The approval is signified via an initial and date. b. The paychecks are signed contemporaneous to the approval of the report. c. The payroll report is reviewed every other week at the same time that the weekly expense report is reviewed. d. The Board Member participating in the review is based on availability. 11. The Authority was incorporated on April 24, 1950, pursuant to the provisions of the Municipality Authorities Act of 1945. a. The Authority services approximately 5,000 customers in the City along with parts of the surrounding municipalities of Hempfield Township, Penn Township and Penn Borough. Davis, 11-025 Page 4 12. The Authority utilizes The Jeannette Spirit for advertisements. a. Authority advertisements are submitted by the Secretary. b. Advertisements are, at times, reviewed by Pike prior to being submitted. c. The Jeannette Spirit is circulated every Thursday in the City and surrounding municipalities. d. The Jeannette Spirit is owned by The Tribune Review. 13. The Authority employs two (2) at-will employees and seven (7) bargaining unit members from the Teamsters Local Union No. 30. a. The Plant Superintendent and Plant Secretary are at-will employees. 14. The Authority is managed by the Plant Superintendent, Douglas Pike. a. Pike is responsible for the day-to-day operations of the Plant. b. Pike has been employed as the Plant Superintendent for at least the past twenty-two years. c. Pike supervises the bargaining unit members and the Secretary. 1. The Teamsters Local Union No. 30 represent the employees in collective bargaining negotiations with Authority representatives. 15. The Teamsters Local Union No. 30 collective bargaining agreement (hereafter, “Agreement”) with the Authority, covering the time period of January 1, 2011, to December 31, 2014, established the following: a. General Employment Conditions, to include job descriptions; b. Seniority-Probationary Period; c. Vacancies d. Wages; and e. Work hours and Overtime. 16. The Agreement documented the job descriptions for collective bargaining unit members, including that of the Classification II-Maintenance Plant position as follows: The Maintenance Plant position shall perform all maintenance and repair on equipment at the sewage plant and assist other Classes as needed when not performing the duties listed. 17. The Agreement sets forth the wage for the Classification II-Maintenance Plant position for years 2011 through 2014 as follows: a. Classification II Maintenance – Plant: $21.03 (2011); $21.65 (2012); $22.27 (2013); $22.89 (2014). Davis, 11-025 Page 5 b. Certified DEP Wastewater Treatment Plant Operator: $21.93 (2011); $22.68 (2012); $22.27 (2013); $24.23 (2014). 18. The Agreement sets forth the procedure to be utilized in the event of a vacancy within the bargaining unit. a. Bargaining unit members complete an in-house bid within 90-days of a vacancy. 1. Positions are filled from within the bargaining unit based on seniority. b. The Authority advertises to hire in the event a vacancy is not filled from within the bargaining unit. c. The Agreement does not establish any additional steps in the hiring process for the Authority in the event of a vacancy. 19. The filling of vacant positions at the Authority that are not filled from within existing bargaining unit members typically occurs as follows: a. The Board moves to advertise upon the creation of a vacancy; b. The Secretary submits the advertisement to The Jeannette Spirit; c. Resumes are received at the Authority PO Box or hand delivered to the Authority Plant; d. The Superintendent reviews the resumes and independently organizes/conducts interviews at the Authority Plant for selected candidates; 1. Board Members did not regularly participate in the selection of candidates to interview or in the actual interviews with the Superintendent. e. Authority Board Members each review resumes in between meetings and/or collectively at a regular meeting; f. The Superintendent recommends a candidate to the Board in an executive session; g. The Board votes to approve the hiring of a candidate based upon its review of the resumes and/or the Superintendent’s recommendation. 1. The Board has not consistently followed the recommendation offered by the Superintendent. h. The Authority does not have written guidelines that set forth its hiring process. 20. The Agreement sets forth a 90-day probationary period for all new Authority employees. a. The Authority Board has the discretion to dismiss a new employee in the probationary period. b. Employees are not entitled to benefits (medical, dental, vision, sick/vacation time) during the probationary period. Davis, 11-025 Page 6 21. The employee wage during the 90-day probationary period is $11.00 per hour or the legal minimum wage required by law (if higher). a. Upon completion of the probationary period, the first year hourly rate is $6.00 less than the hourly rate of the position he/she is filling. b. In the second year the hourly rate is $3.50 less than the hourly rate of the position he/she is filling. c. The employee receives annual increments in the first two years of employment. 22. The Authority has assumed the responsibility of hiring employees since the late 1980s. a. City employees had worked at the Authority prior to the late 1980s. 23. Authority Board Members traditionally have emulated the City of Jeannette residency requirement set forth for City employees in relation to Authority hiring practices. a. City bargaining unit members and management are required to reside within the City limits, per the City employee’s union agreement and City Ordinance #86-10. b. The Authority does not have a written residency requirement that sets forth any preference in hiring to City residents. c. The requirement has been applied at the discretion of the Authority Board. 1. The requirement was typically placed in Authority help wanted advertisements. 2. The Authority has made exceptions in the applicability of the residency requirement. 24. Davis, as an Authority Board Member, visited the Authority Plant on a weekly basis in 2010 and 2011 and joined in general conversations with employees regarding plant operations, Authority equipment, and employee relations. a. Board Member Philip Answine had visits of a similar frequency to the Authority Plant and interaction with the employees. b. The remaining Board Members did not traditionally partake in similar interaction with Authority employees as Davis and Answine. 25. Authority employee Joe Bell III was employed at the Authority from approximately April 2006 to June 2011. a. Bell was initially hired for the Authority Plant Maintenance position. 1. Bell was interviewed by Pike for the position. 2. Bell did not have interaction with Board Members during the hiring process. Davis, 11-025 Page 7 b. Bell had electrical training from the Central Westmoreland Career and Technology Center and field experience at the time he applied at the Authority. 1. Bell worked for his father’s electrical service/repair company at the time of applying. c. Bell was not a City resident at the time he was hired. 1. Bell was required to maintain a City residency within 90 days of his employment with the Authority. 26. As early as January 2011 Bell informed Authority representatives, including Davis, of his intention to resign from employment at the Authority within the year to pursue an electrical engineering degree. a. Davis discussed with Bell his intentions of leaving the Authority. 1. Davis was informed that Bell’s resignation was imminent. b. Davis expressed to Bell that he (Davis) had personal interest in working for the Authority. 1. Davis had a reasonable expectation that Bell’s voluntary termination would result in a vacancy in the bargaining unit and that the Authority would hire from outside the bargaining unit to fill the vacancy. 27. Davis, as an Authority Board Member, was involved in bargaining unit contract negotiations with representatives of the Local Teamsters Union No. 30 contemporaneous to Bell informing Authority representatives of his intention to leave. a. The Agreement ultimately negotiated resulted in changes to the previous Agreement, to include the following: 1. Increased wages; 2. A change of the normal retirement age from 65 to 60; 3. A change of early retirement to 20 years of credited service; and 4. The elimination of a required DEP Wastewater Treatment Plant Operator certification for employment. b. Davis became familiar with the wages/benefits of Authority bargaining unit members as a result of his involvement in the negotiations for the Agreement. 28. Davis stated to Authority employees that his spouse, Rebecca Davis, intended to seek employment at the Authority on or about the time in 2011 when Bell submitted his voluntary termination notice. a. Davis asserted that Rebecca Davis’s employment at the Authority would be beneficial to him and that the Authority should hire Rebecca Davis. Davis, 11-025 Page 8 b. Davis stated his intention was to remove himself as an Authority Board Member from the hiring process if Rebecca Davis ultimately applied for employment at the Authority. 29. Bell submitted his notice for voluntary termination of employment from the Authority to Pike on or about May 31, 2011. a. The notice documented Bell’s last day of employment effective June 16, 2011. 30. Pike presented the Authority Board with Bell’s notice for voluntary termination of employment at the June 15, 2011, regular meeting. a. Davis was present at the meeting. b. The Board accepted Bell’s notice for voluntary termination of employment. c. The Board approved commencement of the bargaining unit in-house bidding th on June 17 to fill the vacant position. 31. The in-house bidding was completed within the required 90 days of Bell’s voluntary termination. a. The in-house bidding resulted in a vacant Plant Maintenance position. 32. On or about July 1, 2011, Pike directed Smaracheck to submit a help wanted advertisement in The Jeannette Spirit for the vacant Plant Maintenance position upon the completion of the in-house bidding. a. Smaracheck utilized the template from a previous Authority help wanted advertisement. b. The advertisement for the Plant Maintenance position was only published in the July 7, 2011, edition of The Jeannette Spirit. c. Neither the Board nor Pike directed Smaracheck to include any City residency requirement. 33. The vacant Plant Maintenance position advertisement documented the following: a. The position was responsible for the maintenance and repair of all equipment and machinery at the sewage plant; b. Resumes were to be mailed at the Authority address of PO Box 294, Penn, PA 15675; c. Phones call inquiries were prohibited. 34. The vacant Plant Maintenance position advertisement did not include the following: a. City of Jeannette residency requirements; b. City of Jeannette hiring preference; or c. A deadline by which resumes must be received. Davis, 11-025 Page 9 35. Resumes were received both via mail at the Authority PO Box 294 address and hand delivered at the Authority Plant office. a. Smaracheck and Pike had access to and collected the resumes received at the Authority’s PO Box. 1. The resumes received at the PO Box were maintained at the Authority plant by Smaracheck and Pike. b. Resumes received at the Authority Plant office were accepted by Smaracheck. c. Board Members had the authority to review the resumes at the Authority Plant at any time once received. 36. Davis was present at the Plant at the time applicant Norm Lander hand delivered his resume to the Authority. a. Smaracheck introduced Davis as a Board Member to Lander. b. No other Board Members were present to accept hand delivered resumes. c. Davis suggested to Smaracheck that Lander’s resume could not be accepted as it was being hand delivered and not mailed in for submittal. 1. Smaracheck ultimately accepted Lander’s resume regardless of Davis’s remark to Smaracheck. d. The Board had not yet decided how the interview process would be conducted. 37. Rebecca Davis’s resume was received by Smaracheck at the Authority’s PO Box address on or about July 7, 2011. a. The resume documented Rebecca Davis having the following work experience: 1. Paula Teacher and Associates, Inc. (hereafter, “PTA”) from March 2008 to the present as a job coach and habitual staff member. 2. Global (Management) Solutions, Inc. (hereafter, “GMS”) from October 2006 to March 2008 performing maintenance. b. Rebecca Davis’s resume did not list any specific account of the duties performed in the positions with either PTA or GMS. c. Rebecca Davis’s resume did not list any other maintenance related education or experience with the exception of GMS. 38. Rebecca Davis had been employed by PTA since April 7, 2008. a. PTA provides licensed mental retardation (Vocational Facility), mental health (Mobile Psychiatric Rehabilitation) and medical assistance for both special needs adults and children. Davis, 11-025 Page 10 b. Rebecca Davis worked approximately 31 hours a week as a habitual staff member and/or a job coach at the time she submitted her resume to the Authority. 1. Rebecca Davis’s wage as a habitual staff member was $10.93/hour and $10.38/hour as a job coach. 2. Rebecca Davis was not eligible for health benefits through her employment with PTA at the time she applied to the Authority. c. Rebecca Davis did not perform maintenance/repair work of any kind while employed with PTA. 39. Rebecca Davis had been employed by GMS from approximately January 31, 2006, to May 9, 2008. a. GMS employs skilled and unskilled employees to perform cleaning, maintenance, and facilities management services throughout the United States. b. Skilled employees are hired upon meeting specific knowledge/experience thresholds in the maintenance field. 1. Rebecca Davis did not list on her GMS application any specific knowledge/experience in the maintenance field. c. GMS hired Rebecca Davis in an unskilled position to perform janitorial work. d. Rebecca Davis’s resume misrepresented her having worked for GMS for three [sic] years in a maintenance position. 40. GMS provided both maintenance and cleaning services at the Westmoreland Mall, located in Greensburg, Pennsylvania, in 2008. a. Rebecca Davis performed janitorial work at the Westmoreland Mall while employed with GMS. 41. Davis discussed the applicants for the Authority Maintenance position with Authority employees on or about the time the in-house bidding was completed and the position was advertised. a. Davis informed the employees that Rebecca Davis had previously been employed in a “Maintenance” position. 1. The services performed by Rebecca Davis in her “Maintenance” position at GMS were not similar to or reflective of the Authority Plant Maintenance position duties/responsibilities. b. Davis specified that Rebecca Davis could learn the duties of the Plant Maintenance position on-the-job. 42. In or about June 2011, Davis informed Board Member Philip Answine that his spouse, Rebecca Davis, was interested in applying for the Plant Maintenance position. a. Davis and Rebecca Davis reside together within the Jeannette City limits. Davis, 11-025 Page 11 43. Davis became aware through his conversation with Answine that Answine preferred to hire a City resident for the Plant Maintenance position. a. Davis did not solicit support from Answine to hire Rebecca Davis for future employment at the Authority. 44. The public has access to the Authority Plant for billing and service inquires. a. The Authority Secretary and Superintendent have primary interaction with members of the public who go to the Plant for inquiries. 45. The Authority does not regularly offer tours to members of the public pertaining to Authority Plant operations and/or duties of various Authority employees. a. Public tours of the Authority Plant facility are not part the Authority’s day-to- day operations. b. Tours are not typically offered to individuals seeking employment at the Authority. 46. Davis furnished Rebecca Davis with the opportunity to observe and perform duties of an Authority employee at the Authority Plant/facility on at least two occasions on or about the time of Bell’s resignation (June 2011). a. Rebecca Davis performed duties associated with Authority employees in order to assess her ability to perform said duties. b. Applicants or candidates seeking employment at the Authority were not given an opportunity to observe and/or perform duties of any Authority employees during the employment selection process with the exception of Rebecca Davis. c. Davis did not inform the Board of his activities. d. Absent his position as an Authority Board Member Davis did not have the authority to arrange for Rebecca Davis to observe/attempt the work of Plant employees at the Authority. 47. Davis, as an Authority Board Member, independently reviewed the resumes for the vacant Plant Maintenance position prior to the August 2, 2011, regular meeting. a. Davis obtained the resumes at the Authority Plant in his official capacity as an Authority Board Member. b. Davis reviewed the resumes knowing that Rebecca Davis was an applicant. 1. Davis and Answine were the only Board Members who reviewed resumes at the Authority Plant. 48. On or about July 15, 2011, Pike directed Smaracheck to mail the resumes for the Plant Maintenance position to the Board Members. a. The mailing packet consisted of seven resumes including the resume of Rebecca Davis. b. Davis received the packet with all seven resumes in the mail. Davis, 11-025 Page 12 49. Five additional resumes were received by the Authority after July 15, 2011. a. The additional resumes received were provided to the Authority Board Members at the August 2, 2011, regular meeting. 50. The August 2, 2011, regular Authority meeting was attended by Board Members Sam DeMatteo, Nick Masciantonio, Richard Pitzer, and Davis. a. The Board entered into an executive session at approximately 8:09 p.m. to discuss employment issues specific to the hiring of the Plant Maintenance position. b. Davis, in his official capacity as an Authority Board Member, was present and participated in the executive session at a time when he knew that his spouse was an applicant to be considered for employment at the Authority. 51. During the August 2, 2011, executive session, the Board reviewed all of the resumes received for the Plant Maintenance position. a. During the executive session, Pike informed the Board that interviews for the position were not completed. 1. Pike had not yet been directed to interview candidates. aa. Traditionally the Board directs Pike when to begin interviewing applicants. 52. During the executive session, Masciantonio recommended that a Board Member assist Pike in order to increase the Board’s involvement in the hiring process. a. Masciantonio wanted a Board Member to participate in selecting candidates to be interviewed, as well as to participate in the interviews. 1. Traditionally Board Members are not involved in the interview process. b. The Board did not specifically address any further assistance the Board Member was to have in the hiring process. 1. The Board did not establish any restrictions to the involvement the Board Member was to have in the interview process. c. Davis endorsed the inclusion of a Board Member’s involvement in the interview process. 53. Masciantonio ultimately recommended that Davis assist Pike during the interview process. a. The recommendation was due in part to Davis’s position as the Board Chairman. b. The remaining Board Members endorsed Masciantonio’s recommendation. c. Davis accepted Masciantonio’s recommendation with the knowledge his spouse, Rebecca Davis, was an applicant for the position. Davis, 11-025 Page 13 54. The remaining Board Members were aware that Rebecca Davis was Davis’s spouse and was an applicant at the time Davis agreed to assist Pike. a. The Board did not set forth any restrictions in regards to Davis’s involvement in the interview process. 55. Davis and Pike reviewed resumes for the Plant Maintenance position during an impromptu meeting at the Authority Plant office subsequent to the August 2, 2011, regular meeting, for the purpose of selecting candidates to interview. a. Davis participated in the meeting knowing the candidates selected were to be interviewed and in final consideration for the hiring. b. Rebecca Davis’s resume was reviewed during this meeting. 56. Pike specifically identified applicants Norm Lander and Brian Slewinski as candidates to interview from the group of resumes present. a. When Pike came to Rebecca Davis’s resume, Pike inquired if Davis wanted Rebecca Davis to be interviewed. 1. Davis responded affirmatively to Pike’s query. b. Davis endorsed Pike’s recommendations to interview Lander, Slewinski, and Rebecca Davis for the Plant Maintenance position. 57. Pike typically based his selections on the applicant’s experience and education related to the Plant Maintenance position. a. Both resumes of Lander and Slewinski listed technical training and experience that significantly exceeded that of Rebecca Davis. 1. Rebecca Davis’s resume does not list her having any technical training. 2. Rebecca Davis’s resume listed her having 3 years “Maintenance” experience with GMS. aa. Rebecca Davis was employed with GMS in performing janitorial tasks from January 31, 2006, to May 9, 2008. bb. Davis was aware that Rebecca Davis performed janitorial services for GMS and not technical maintenance services. 58. Pike only selected Rebecca Davis to be interviewed as a result of her relationship with Davis and Davis’s involvement in the selection process and his position as Chairman of the Board. a. At the time of the applicant reviews, Davis advised Pike that his spouse should be interviewed. b. At least nine other applicants listed having technical or mechanical experience and/or education. 1. Eight of the applicants listed residing within the City limits. Davis, 11-025 Page 14 59. Davis’s involvement in reviewing resumes and selecting candidates to interview for the Plant Maintenance position resulted in the inclusion of Rebecca Davis as one of the final three candidates considered for the Plant Maintenance position. a. Davis was the only Authority Board Member involved in the selection of candidates to interview. b. Pike would not have selected Rebecca Davis as an interview candidate had Davis not been involved in the selection process. c. Davis and Pike selected only three candidates to be interviewed. 60. Davis and Pike agreed to interview the final three candidates at the Authority Solicitor’s Office, located at the Law Office of Morrison Lewis, 550 East Pittsburgh Street, Greensburg, PA 15601 to ensure privacy during the interview process. a. Prior interviews were held at the Authority Plant after normal working hours. b. Pike contacted Rebecca Davis, Lander, and Slewinski via telephone to arrange the interviews. 61. Interviews for the Plant Maintenance position were conducted at the Law Office of the Authority Solicitor, Morrison Lewis, on August 10, 2011. a. Davis and Pike were the only Authority representatives present for the interviews. 1. Davis was the only Authority Board Member present for the interviews. 62. Pike was the principal interviewer for the Plant Maintenance position. a. Pike created the majority of the questions/topics for the interviews without input from Davis. b. Pike asked the same or similar questions to each candidate relating to the electrical field. 63. Pike questioned Rebecca Davis about her “maintenance” experience. a. Rebecca Davis informed Pike her “maintenance” experience was janitorial in nature. 64. Davis participated in each interview, including Rebecca Davis’s, by asking each candidate how he/she would benefit the Authority Plant. 65. Davis and Pike evaluated the candidates after the interviews and determined that Lander was the top candidate for the Plant Maintenance position. 66. The candidates were not informed during the interview of when the Authority planned to hire. a. Davis expected the Board would take action/discuss the hiring at a following regular meeting. 67. On or about August 17, 2011, Rebecca Davis submitted a “Request For Removal” form to PTA in order to be released from providing services to two of her clients. Davis, 11-025 Page 15 a. PTA requires an employee to work with their client(s) for up to one week after the submittal of the form in order to find a new employee to assume the responsibility of the client. b. Rebecca Davis submitted the Request For Removal approximately one week after her interview. c. Rebecca Davis cited the reason for the submittal as “Possible New Job.” th 68. PTA released Rebecca Davis from two of her clients by the week of August 29 which resulted in a deduction of 8 hours from Rebecca Davis’s regular 31 hour work week. a. Rebecca Davis voluntarily requested a decrease in hours prior to any formal hiring decision having been made by the Authority Board. b. The Board did not have a quorum between August 10, 2011, and the September 6, 2011, regular meeting. 69. Davis discussed the interviews on various occasions with Authority employees prior to the September 6, 2011, regular meeting. a. Davis informed the employees that Pike found Rebecca Davis to be the most qualified candidate. 1. Pike did not determine that Rebecca Davis was the most qualified applicant. 2. Pike believed Lander to be the most qualified of the applicants. 70. Davis identified the interviewed candidates to Answine in conversation prior to the September regular meeting. a. Davis indicated that he sat-in on Rebecca Davis’s interview. b. Answine told Davis that he should not have participated in Rebecca Davis’s interview. c. Davis did not identify the candidates to any other Board Members. d. Davis did not inform Answine which candidate he was recommending or that he and Pike had agreed that Norm Lander was the candidate to be recommended. 71. Davis informed Answine that not all of the candidates interviewed were City residents. a. Answine became aware, at that time, that the only City resident interviewed was Rebecca Davis. 72. Answine had asked Pike which candidate he recommended for hiring prior to the September 6, 2011, regular meeting. a. Pike told Answine that the candidate to be recommended for the Plant Maintenance position was Norm Lander. Davis, 11-025 Page 16 73. Answine had several discussions with Authority employees that he “had given his word to Davis” to vote in favor of hiring Rebecca Davis prior to the Board’s official action to hire. a. Answine did not specify to the Authority employees why he pledged his vote for Rebecca Davis. b. Answine had no conversations with Pike during which the subject of his pledged vote to Rebecca Davis was discussed. 74. Davis attended the September 6, 2011, regular meeting with the reasonable expectation the Board would take an official action to hire for the Plant Maintenance position. 75. At the September 6, 2011, regular meeting, Davis called the Board into an executive session at approximately 8:09 p.m. to discuss the hiring for the Plant Maintenance position. a. Board Members Davis, Answine, Pitzer, DeMatteo, and Masciantonio and Pike attended the session. 76. Immediately upon convening of the executive session, Answine recommended that the candidate for the Plant Maintenance position be a City resident. a. Answine’s recommendation was made knowing that some candidates interviewed were not City residents. 1. Rebecca Davis was the only City resident interviewed for the position. b. Lander’s and Slewinski’s resumes listed a Jeannette postal address which was not within the City limits. 1. Answine was able to distinguish that Lander and Slewinski lived outside of the City limits based on the address listed on their resumes. c. The Board had not previously discussed hiring a candidate from outside the City limits. 1. The Authority has previously hired individuals who did not live within the City limits. 2. The Authority typically required new hires to move within the City limits within 90 days of their effective start date. 77. Masciantonio left the executive session at approximately 8:15 p.m. in disagreement with Answine’s recommendation. a. Masciantonio was opposed to hiring an employee based on residency. 78. The remaining Board Members agreed, during the executive session, to give preference in hiring a City resident. a. Davis did not speak during the executive session regarding the preference to be given to a City resident. Davis, 11-025 Page 17 79. During the September 6, 2011, executive session, Pike informed the Board of the three candidates he and Davis interviewed and that the recommended candidate for the Plant Maintenance position was Norm Lander. a. Davis, as the only Board Member involved in the interviews, did not offer the Board a recommendation or support the recommendation offered by Pike. 80. While still in executive session, Answine requested a nomination from those Board Members present for a candidate for the Plant Maintenance position. a. Answine received no response to his request. b. Davis did not nominate Norm Lander even though he and Pike had agreed Lander was the lead candidate for the position. 81. Answine subsequently nominated Rebecca Davis for the Plant Maintenance position after receiving no nominations from the remaining Board Members. a. Answine nominated Rebecca Davis knowing the two remaining candidates were more experienced. 1. Answine also was aware that Lander was the candidate recommended by Pike. b. No formal vote occurred during the executive session when the Board decided to hire Rebecca Davis. 1. Davis was present when discussions occurred. 82. The Board reconvened at 8:50 p.m. to the public session during which Answine motioned, seconded by DeMatteo, to hire Rebecca Davis to the vacant Plant Maintenance position. a. The motion passed via 3-0 vote with Davis abstaining. b. The meeting minutes do not note the reason for Davis’s abstention. 83. Rebecca Davis began working at the Authority on September 12, 2011. 84. As an Authority Board Member, Davis was involved in the hiring process for the Plant Maintenance position, which resulted in his wife being hired for the position. a. Davis’s actions included reviewing resumes, selecting and interviewing candidates, and advising the Authority Superintendent that he wanted Rebecca Davis interviewed and hired by the Authority Board. 85. Rebecca Davis received the pay rate established in the Agreement for the Plant Maintenance position as outlined below: a. During the 90-day probationary period (9/12/11 – 12/18/11), Rebecca Davis’s wage was $11.00/hour. b. From 12/18/11 through the remainder of 2011, Rebecca Davis’s wage was $15.03/hour. c. During 2012, Rebecca Davis’s wage was $15.65/hour. Davis, 11-025 Page 18 86. Davis signed six of the twenty-three Authority paychecks as an authorized Authority signatory which were issued to Rebecca Davis. a. The twenty-three checks issued to Rebecca Davis were dated from September 22, 2011, to July 12, 2012, and were numbered within the range of check numbers 6667 to 6967. b. The six checks for which Davis was an authorized Authority Signatory were numbered 6667, 6685, 6775, 6801, 6815, and 6875. 87. Authority paychecks issued to Rebecca Davis were deposited into the Davis’s First Commonwealth Bank shared-checking account #[number redacted]. a. Account #[number redacted] is a shared account utilized by Davis and Rebecca Davis. b. Davis and Rebecca Davis are the authorized signatories for account #[number redacted]. 88. Davis regularly participated in votes to approve Authority expenditures, to include paychecks to Rebecca Davis, as noted on the Authority’s bi-weekly payroll expense reports and subsequent monthly bill listings as outlined below: a. Davis reviewed/approved six of the twenty-three bi-weekly payroll expense reports since Rebecca Davis was hired. b. Davis voted affirmatively in approving all of the monthly payrolls since the hiring of Rebecca Davis. c. Of the votes approving Authority expenditures, Davis approved all 23 paychecks to Rebecca Davis. 89. Pursuant to Article IX, Section 2 of the Agreement, Rebecca Davis completed her probationary period on December 18, 2011. (See, paragraph #15 above). a. Upon completion of her 90-day probationary period, Rebecca Davis was classified as a regular Authority employee, with her seniority and service rights commencing as of the date of her original employment. b. As a result of Rebecca Davis’s employment during her 90-day probationary period, she received 8 Authority paychecks, for a total amount of $6,498.90. 90. Rebecca Davis became eligible for employer provided benefits in December 2011, as per Agreement Article XVIII-Health and Accident, upon the completion of her 90- day probationary period. 91. The Authority group benefit plan is administered by the Municipal Employers Insurance Trust (hereafter, “MEIT”). a. MEIT benefits offered to Authority employees include health, vision, dental, short term disability, and term life insurance. 92. Rebecca Davis has received the Authority’s MEIT benefits since January 1, 2012. a. Davis is the death benefit beneficiary listed for R. Davis’s term life insurance. Davis, 11-025 Page 19 93. The Authority received six invoices from MEIT since January 2012 which document benefits for Rebecca Davis. a. Davis reviewed/approved payment for three of the six MEIT invoices. b. Davis has voted affirmatively to approve all monthly expense reports which document payment to MEIT for Authority employee benefits since Rebecca Davis’s inclusion in the Authority’s group benefit plan in January 2012. 94. During a sworn statement conducted by Commission Investigators on June 29, 2012, Davis indicated the following: a. Davis anticipated the Authority would hire from outside the bargaining unit upon receiving notice of Joe Bell’s voluntary termination of employment; b. Davis did not know the past Authority hiring practices or the extent of Board Member involvement in interviews; c. At the start of the hiring process, Davis learned from senior Authority Board Members and Authority union employees that the Authority was required to hire City residents; d. Davis informed Smaracheck to place a City residency requirement in the advertisement for the Plant Maintenance position but learned from Smaracheck sometime after the advertisement was submitted that The Tribune Review would not include the requirement in the advertisement. e. Davis did not want Rebecca Davis to work for the Authority; however, he would not refuse her opportunity of being interviewed; f. Davis did not want to be involved in the hiring process with Doug Pike and told the Board that his involvement would be an inconvenience; g. Davis knew the senior Board Members preferred hiring a City resident; h. Davis took Rebecca Davis to the Authority on a weekend to show their dog to an Authority employee and not for the purpose of showing her the facility and/or various duties performed by Authority employees to assess her capabilities in performing said duties; i. Rebecca Davis had intentions of dropping her PTA night-time clients in the summer of 2011 and Davis had no knowledge about Rebecca Davis’s request to be removed from her PTA clients prior to her being hired at the Authority. 95. Davis used the authority of his public position by participating in discussions, evaluations and decisions of the Authority Board, including but not limited to reviewing applicants to be interviewed, directing that his spouse be interviewed, participating in applicant interviews including that of his spouse, and participating in Authority executive sessions, resulting in the hiring of his spouse for a compensated position with the Authority and participating in actions and votes to approve payroll and health benefit payments associated with his spouse’s employment with the Authority resulting in a private pecuniary benefit to himself and/or a member of his immediate family. Davis, 11-025 Page 20 THE FOLLOWING FINDINGS RELATE TO DISCREPANCIES ON DAVIS’S STATEMENT OF FINANCIAL INTERESTS FORMS FOR CALENDAR YEARS 2009 AND 2010. 96. Section 1104(a) of the State Ethics Act sets forth that public officials are to file a Statement of Financial Interests (hereafter “SFI”) form with the governing authority st of the political subdivision within which appointed or elected no later than May 1 of each year that the individual holds such a position and of the year after the individual leaves such a position. a. Davis has served as a City of Jeannette Municipal Authority Board Member since February 2010. 97. On October 17, 2011, a Statement of Financial Interests compliance review was conducted at the Authority by the Investigative Division of the State Ethics Commission. a. The review determined that no SFI for calendar year 2009 was on file for Davis. b. An SFI on file for calendar year 2010, dated February 28, 2011, was on file for Davis. 98. Section 1105(b)(2), Required Information, of the State Ethics Act sets forth that any occupation or profession be included in the calendar year with regard to the person required to file the statement. a. Davis failed to disclose his occupation or profession on line 6 of the SFI form for calendar year 2010. 1. Davis has been employed with Owens and Minor for approximately 21 years. 99. Section 1105(b)(5), Required Information, of the State Ethics Act sets forth that any direct or indirect sources of income totaling in the aggregate of $1,300.00 or more shall be included in the calendar year with regard to the person required to file the statement. a. Davis failed to disclose his direct or indirect source of income from Owens and Minor on line 13 [sic] of the SFI form for calendar year 2010. 100. Section 1105(b)(8), Required Information, of the State Ethics Act sets forth that any office, directorship or employment of any nature in business for profit shall be included in the calendar year with regard to the person required to file the statement. a. Davis failed to disclose his employment in Owens and Minor on line 13 of the SFI form for calendar year 2010. III.DISCUSSION: As a Member of the City of Jeannette Municipal Authority (“Authority”) Board of Directors (“Board”) from February 2010 to the present, Respondent Gary Davis, hereinafter also referred to as “Respondent,” “Respondent Davis,” and “Davis,” has been a public officialsubject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Davis, 11-025 Page 21 The allegations are that Respondent Davis violated Sections 1103(a), 1104(a), 1104(d) and 1105(b) of the Ethics Act, 65 Pa.C.S. §§ 1103(a), 1104(a), 1104(d) and 1105(b): (1) when he used the authority of his public position for the private pecuniary benefit of himself and/or a member of his immediate family when he participated in discussions, evaluations and decisions of the Board, including but not limited to, reviewing applicants to be interviewed, directing that his spouse be interviewed, participating in applicant interviews including that of his spouse, and participating in Authority executive sessions, resulting in the hiring of his spouse for a compensated position with the Authority; (2) when he failed to file a Statement of Financial Interests (“SFI”) for the 2009 calendar year; and (3) when he failed to disclose on an SFI for the 2010 calendar year his occupation and/or profession, direct and/or indirect sources of income, and office, directorship or employment in any business. 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 a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Section 1104(d) of the Ethics Act provides that no public official shall be allowed to take the oath of office, or enter or continue upon his duties, nor shall he receive compensation from public funds, unless he has filed the SFI form as required by the Ethics Davis, 11-025 Page 22 Act. 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. Section 1105(b)(2) of the Ethics Act requires the filer to disclose on the SFI his occupation or profession. 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. 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. 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 has served as a Member of the Board from February 2010 to the present. Respondent has served as Chairman of the Board since January 2011. The Board consists of five Members. The Authority is managed by Authority Superintendent Douglas Pike (“Pike”). The Authority Secretary is Mary Beth Smaracheck (“Smaracheck”). On a weekly basis, Pike and one Board Member provide preliminary approval for the payment of Authority expenses. The Board then votes to approve payment of Authority expenses by approving a monthly expense report at each regular monthly meeting. Pike and the Board Members have signature authority over Authority accounts. Authority checks require the live signatures of two authorized signatories. Pike is responsible for the day-to-day operations of the Authority’s sewage treatment plant (“Plant”). Pike has been employed as the Plant Superintendent for at least the past 22 years. The Authority employs seven bargaining unit members from the Teamsters Local Union No. 30 (“Union”). In the event a vacancy is not filled from within the bargaining unit, the Authority advertises to hire a new employee. There is a 90-day probationary period for all new Authority employees. The Authority does not have written guidelines that set forth its hiring process. The Authority does not have a written residency requirement that sets forth any preference for hiring City of Jeannette (“City”) residents. The Authority has previously hired individuals who did not live within the City limits. The Authority typically required new hires to move within the City limits within 90 days of their effective start date. In June 2011 the Authority had a vacant Plant Maintenance position (“Position”) that was not filled by the collective bargaining unit. The job description for the Position includes performing all maintenance and repair on equipment at the Plant. At or about the time the Position became vacant, Respondent made statements to Authority employees that his spouse, Rebecca Davis, intended to seek employment with the Authority. An advertisement was placed in The Jeannette Spirit seeking applicants for the Position. The advertisement indicated that the Position was responsible for the maintenance and repair of all equipment and machinery at the Plant. The advertisement included that resumes were to be mailed to the Authority. The advertisement did not include City residency requirements or hiring preference. Davis, 11-025 Page 23 Respondent was present at the Plant at the time applicant Norm Lander (“Lander”) hand delivered his resume to the Authority. Respondent suggested to Smaracheck that Lander’s resume could not be accepted as it was being hand delivered and not mailed. However, Smaracheck accepted Lander’s resume. Rebecca Davis’s resume was received by Smaracheck at the Authority’s post office box address on or about July 7, 2011. The resume listed Rebecca Davis’s work experience as then current employment with “Paula Teacher and Associates, Inc.” (“PTA”) as a job coach and habitual staff member, and prior employment with Global Management Solutions, Inc. (“GMS”) from October 2006 to March 2008 performing “maintenance.” The parties have stipulated that Rebecca Davis did not perform maintenance/repair work of any kind while employed with PTA. The parties have further stipulated that Rebecca Davis’s resume misrepresented her having worked for GMS in a maintenance position and that she performed janitorial work at the Westmoreland Mall while employed with GMS. The services performed by Rebecca Davis in her “maintenance” position at GMS were not similar to or reflective of the duties/responsibilities of the Position. On at least two occasions in or about June 2011, Respondent furnished Rebecca Davis with the opportunity to observe and perform duties of an Authority employee at the Plant. No other applicants or candidates seeking employment at the Authority were given an opportunity to observe and/or perform duties of Authority employees during the employment selection process. It was only through his position as a Board Member that Respondent had the authority to arrange for Rebecca Davis to observe/attempt the work of Plant employees at the Authority. In or about June 2011, Respondent informed Board member Philip Answine (“Answine”) that his spouse, Rebecca Davis, was interested in applying for the Position. Respondent did not solicit support from Answine to hire Rebecca Davis for future employment at the Authority. However, through his conversation with Answine, Respondent became aware that Answine preferred to hire a City resident for the Position. Rebecca Davis is a City resident. Respondent, as a Board Member, independently reviewed the resumes submitted for the Position prior to the Board’s August 2, 2011, meeting. Respondent obtained the resumes at the Plant in his official capacity as a Board Member. Board Members had the authority to review the resumes at the Plant. Respondent reviewed the resumes knowing that Rebecca Davis was an applicant. Respondent and the other Board Members also received the resumes from Pike prior to or at the August 2, 2011, meeting. The resumes received by Respondent included the resume of Rebecca Davis. On August 2, 2011, the Board entered into an executive session to discuss employment issues specific to the hiring for the Position. Respondent, in his official capacity as a Board Member, was present and participated in the executive session knowing that his spouse was an applicant to be considered for such employment. The Board reviewed all of the resumes received for the Position. Board Member Nick Masciantonio (“Masciantonio”) recommended that a Board Member assist Pike in order to increase the Board’s involvement in the hiring process. Masciantonio wanted a Board Member to participate in selecting candidates to be interviewed and to participate in the interviews. The Board did not specifically address any further assistance the Board Member was to have in the hiring process. Respondent endorsed the inclusion of a Board Member’s involvement in the interview process. Masciantonio ultimately recommended that Respondent assist Pike during the interview process. The recommendation was due in part to Respondent’s position as the Board Chairman. The remaining Board Members endorsed Masciantonio’s recommendation. Respondent accepted Masciantonio’s recommendation with the knowledge that his spouse, Rebecca Davis, was an applicant for the position. Davis, 11-025 Page 24 The remaining Board Members were aware that Rebecca Davis was Respondent’s spouse and was an applicant at the time Respondent agreed to assist Pike. The Board did not set forth any restrictions with regard to Respondent’s involvement in the interview process. After the August 2, 2011, Board meeting, Respondent and Pike met and reviewed resumes for the Position for the purpose of selecting candidates to interview. Respondent participated in the meeting knowing that the candidates selected were to be interviewed and in final consideration for the hiring. Pike specifically identified applicants Lander and Brian Slewinski (“Slewinski”) as candidates to interview. The resumes of Lander and Slewinski listed technical training and experience significantly exceeding that of Rebecca Davis. Pike inquired if Respondent wanted Rebecca Davis to be interviewed. Respondent advised Pike that Rebecca Davis should be interviewed. Respondent’s involvement in reviewing resumes and selecting candidates to interview for the Position resulted in the inclusion of Rebecca Davis as one of the final three candidates considered for the Position. Respondent was the only Board Member involved in the selection of candidates to interview. Pike only selected Rebecca Davis to be interviewed as a result of her relationship with Respondent and Respondent’s involvement in the selection process and his position as Chairman of the Board. Pike would not have selected Rebecca Davis as an interview candidate had Respondent not been involved in the selection process. Interviews for the Position were conducted on August 10, 2011. Respondent and Pike were the only Authority representatives present for the interviews. Pike was the principal interviewer for the Position. Pike questioned Rebecca Davis about her “maintenance” experience. Rebecca Davis informed Pike that her “maintenance” experience was janitorial in nature. Respondent participated in each interview, including Rebecca Davis’s, by asking each candidate how he/she would benefit the Plant. Respondent and Pike evaluated the candidates after the interviews and determined that Lander was the top candidate for the Position. After her interview and prior to any formal hiring decision by the Board, Rebecca Davis voluntarily requested a decrease in her work hours at PTA due to a possible new job. Prior to the Board’s September 6, 2011, meeting, Respondent identified the interviewed candidates to Answine. Respondent indicated that he sat in on Rebecca Davis’s interview. Answine told Respondent that he should not have participated in Rebecca Davis’s interview. Respondent informed Answine that not all of the candidates interviewed were City residents. Answine became aware, at that time, that the only City resident interviewed was Rebecca Davis. Respondent did not inform Answine which candidate he was recommending or that he and Pike had agreed that Lander was the candidate to be recommended. Prior to the Board’s September 6, 2011, meeting, Answine asked Pike which candidate he recommended for hiring. Pike told Answine that the candidate to be recommended for the Position was Lander. Answine had several discussions with Authority employees that he “had given his word to Davis” to vote in favor of hiring Rebecca Davis prior to the Board’s official action to hire. At the Board’s September 6, 2011, meeting, Respondent called the Board into an executive session at approximately 8:09 p.m. to discuss the hiring for the Position. Respondent attended the executive session. Immediately upon convening of the executive session, Answine recommended that the candidate for the Position be a City resident. Answine’s recommendation was made knowing that some candidates interviewed were not City residents. Rebecca Davis was the only City resident interviewed for the Position. Answine was able to distinguish that Lander and Slewinski lived outside of the City limits Davis, 11-025 Page 25 based on their resumes. Masciantonio left the executive session in disagreement with Answine’s recommendation. The remaining Board Members agreed, during the executive session, to give preference in hiring a City resident. Respondent did not speak during the executive session regarding the preference to be given to a City resident. During the September 6, 2011, executive session, Pike informed the Board of the three candidates he and Respondent interviewed and that the recommended candidate for the Position was Lander. Answine requested a nomination for a candidate for the Position. Answine received no response to his request. Respondent did not nominate Lander even though he and Pike had agreed Lander was the lead candidate for the Position. Answine then nominated Rebecca Davis for the Position knowing that the two remaining candidates were more experienced and that Lander was recommended by Pike. No formal vote occurred during the executive session. Respondent was present when discussions occurred. The Board reconvened at 8:50 p.m. to the public session. On Answine’s motion, the Board voted 3-0 to hire Rebecca Davis for the Position. Respondent abstained from the vote. The meeting minutes do not note the reason for Respondent’s abstention. Rebecca Davis began working at the Authority on September 12, 2011. Rebecca Davis received Authority paychecks totaling $6,498.90 for her employment with the Authority during her 90-day probationary period. Upon completion of her 90-day probationary period, Rebecca Davis was classified as a regular Authority employee, with her seniority and service rights commencing as of the date of her original employment. There were 23 Authority paychecks issued to Rebecca Davis dated from September 22, 2011, to July 12, 2012. Respondent participated in the Board votes approving the monthly payrolls that included all 23 of those paychecks issued to Rebecca Davis, and he also signed, as an authorized Authority signatory, six of such paychecks. As an Authority employee, Rebecca Davis has received health, vision, dental, short term disability, and term life insurance benefits under the Authority’s group benefit plan since January 1, 2012. Since January 2012 the Authority has received six invoices which document benefits for Rebecca Davis. Respondent reviewed and provided preliminary approval for payment of three of such invoices. Respondent voted affirmatively to approve all monthly expense reports which document payment for Authority employee benefits since Rebecca Davis’s inclusion in the Authority’s group benefit plan in January 2012. As a Board Member, Respondent was involved in the hiring process for the Position, which resulted in his wife being hired for the Position. The parties have stipulated that Respondent’s actions included reviewing resumes, selecting and interviewing candidates, and advising Pike that he wanted Rebecca Davis interviewed and hired by the Board. (Fact Finding 84 a). The parties have stipulated that Respondent used the authority of his public position by: (1) participating in discussions, evaluations and decisions of the Board, including but not limited to reviewing applicants to be interviewed, directing that his spouse be interviewed, participating in applicant interviews including that of his spouse, and participating in Authority executive sessions, resulting in the hiring of his spouse for a compensated position with the Authority; and (2) participating in actions and votes to approve payroll and health benefit payments associated with his spouse’s employment with the Authority, resulting in a private pecuniary benefit to himself and/or a member of his immediate family. (Fact Finding 95). As for Respondent’s SFIs, on October 17, 2011, an SFI compliance review was conducted at the Authority by the Investigative Division of this Commission. The review determined that no SFI for calendar year 2009 was on file for Respondent. An SFI dated February 28, 2011, was on file for Respondent for calendar year 2010. Respondent failed to disclose his occupation or profession on line 6 of the SFI form for calendar year 2010. Davis, 11-025 Page 26 Respondent failed to disclose his employer, “Owens and Minor,” as a direct or indirect source of income on his SFI form for calendar year 2010. Respondent failed to disclose his employment with Owens and Minor on line 13 of his SFI form for calendar year 2010. 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 a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a), occurred in relation to Davis’ participation, as a Member of the Authority Board, which resulted in the hiring of his spouse for a compensated position with the Authority. b. That a violation of Section 1104(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1104(a), occurred when Davis failed to file a Statement of Financial Interests for the 2009 calendar year. c. That a violation of Section 1105(b) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1105(b), occurred in relation to Davis’ failure to disclose his occupation and/or profession, direct and/or indirect sources of income, and office, directorship or employment in any business on a Statement of Financial Interests for the 2010 calendar year. 4. Davis agrees to make payment in the amount of $6,498.90 in settlement of this matter payable to the City of Jeanette 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. Davis agrees to resign from his position as a Member and Chairman of the City of Jeannette Municipal Authority within thirty (30) days of the issuance of the final adjudication in this matter. 6. Davis agrees to file a Statement of Financial Interests with the City of Jeanette Municipal Authority, through the Pennsylvania State Ethics Commission, for the 2009 calendar year within thirty (30) days of the issuance of the final adjudication in this matter. Davis, 11-025 Page 27 7. Davis agrees to file an amended Statement of Financial Interests with the City of Jeanette Municipal Authority, through the Pennsylvania State Ethics Commission, for the 2010 calendar year within thirty (30) days of the issuance of the final adjudication in this matter. 8. Davis agrees to not accept any reimbursement, compensation or other payment from City of Jeanette Municipal Authority representing a full or partial reimbursement of the amount paid in settlement of this matter. 9. 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. We agree with the parties that a violation of Section 1103(a) of the Ethics Act occurred in relation to Respondent’s participation, as a Member of the Board, which resulted in the hiring of his spouse for a compensated position with the Authority. As a Board Member, Respondent was involved in the hiring process for the Position, which resulted in his wife being hired for the Position. Respondent participated in the hiring process for the Position knowing that his wife was an applicant for the Position. Respondent’s actions included reviewing resumes, selecting and interviewing candidates, and advising Pike that he wanted Rebecca Davis interviewed and hired by the Board. (Fact Finding 84 a). Respondent’s involvement in reviewing resumes and selecting candidates to interview for the Position directly resulted in the inclusion of Rebecca Davis as one of the final three candidates considered for the Position. Respondent was the only Board Member involved in the selection of candidates to interview. Pike only selected Rebecca Davis to be interviewed as a result of her relationship with Respondent and Respondent’s involvement in the selection process and his position as Chairman of the Board. Pike would not have selected Rebecca Davis as an interview candidate had Respondent not been involved in the selection process. Respondent participated with Pike in selecting only three candidates to interview for the Position, knowing that at least one Board Member (Answine) preferred to hire a City resident for the Position, and that Rebecca Davis was the only City resident among the three candidates to be interviewed. Prior to the Board’s September 6, 2011, meeting, Respondent identified the interviewed candidates to Answine and informed Answine that not all of the candidates interviewed were City residents. Answine became aware, at that time, that the only City resident interviewed was Rebecca Davis. Upon convening of the Board’s September 6, 2011, executive session, Answine immediately recommended that the candidate for the Position be a City resident. Except Davis, 11-025 Page 28 for Masciantonio, the other Board Members agreed to give preference in hiring a City resident. Answine nominated Rebecca Davis for the Position knowing that the two remaining candidates were more experienced and that one of those other candidates was recommended by Pike. When the Board reconvened to the public session, on Answine’s motion, the Board voted 3-0 to hire Rebecca Davis for the Position. Respondent abstained from the vote, but, as detailed above, Respondent had already used the authority of his public position to advance the hiring of his wife by the Authority. Respondent used the authority of his public position by participating in discussions, evaluations and decisions of the Board, including but not limited to reviewing applicants to be interviewed, directing that his spouse be interviewed, participating in applicant interviews including that of his spouse, and participating in Authority executive sessions, resulting in the hiring of his spouse for a compensated position with the Authority. (Fact Finding 95). The aforesaid actions resulted in a private pecuniary benefit to Respondent and/or his spouse, Rebecca Davis, consisting of the compensation and benefits Rebecca Davis received as an Authority employee. For work during her 90-day probationary period, Rebecca Davis received Authority paychecks totaling $6,498.90. Upon completion of her 90-day probationary period, Rebecca Davis was classified as a regular Authority employee, with her seniority and service rights commencing as of the date of her original employment. With each element of a violation of Section 1103(a) established, we hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Respondent Davis’s participation, as a Member of the Board, which resulted in the hiring of his spouse for a compensated position with the Authority. Cf., e.g., Klitsch, Order 1462. Turning to the allegations involving Respondent’s SFIs, we agree with the parties, and we hold, that a violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Respondent Davis failed to file an SFI for the 2009 calendar year. We further hold that a violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred in relation to Respondent Davis’s failure to disclose his occupation and/or profession, direct and/or indirect sources of income, and office, directorship or employment in any business on an SFI for the 2010 calendar year. It appears that the Investigative Division in the exercise of its prosecutorial discretion has elected to non pros the portion of the allegations pertaining to Section 1104(d). As part of the Consent Agreement, Respondent has agreed to make payment in the amount of $6,498.90 payable to the City of Jeanette Municipal Authority and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Respondent has agreed to not accept any reimbursement, compensation or other payment from the Authority representing a full or partial reimbursement of the amount paid in settlement of this matter. Respondent has further agreed to resign from his position as a Member and Chairman of the Authority within thirty (30) days of the issuance of the final adjudication in this matter. Respondent has agreed to file an SFI for the 2009 calendar year with the Authority, through this Commission, within thirty (30) days of the issuance of the final adjudication in this matter. Respondent has agreed to file an amended SFI for the 2010 calendar year with the Authority, through this Commission, within thirty (30) days of the issuance of the final adjudication in this matter. Davis, 11-025 Page 29 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, Davis is directed to make payment in the amount of $6,498.90 payable to the City of Jeanette Municipal Authority th and forwarded to this Commission by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Per the Consent Agreement of the parties, Davis is further directed to not accept any reimbursement, compensation or other payment from the Authority representing a full or partial reimbursement of the amount paid in settlement of this matter. Davis is directed to fulfill his agreement to resign from his position as a Member and th Chairman of the Authority by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. To the extent he has not already done so, Davis is directed to file an SFI for calendar year 2009 and an amended SFI for calendar year 2010 with the Authority, through this Commission, providing full disclosure as required by the Ethics Act, by no th 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 City of Jeannette Municipal Authority (“Authority”) Board of Directors (“Board”) from February 2010 to the present, Respondent Gary Davis (“Davis”) has been a public officialsubject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. 2. Davis violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation to his participation, as a Member of the Board, which resulted in the hiring of his spouse for a compensated position with the Authority. 3. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Davis failed to file a Statement of Financial Interests for the 2009 calendar year. 4. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred in relation to Davis’s failure to disclose his occupation and/or profession, direct and/or indirect sources of income, and office, directorship or employment in any business on a Statement of Financial Interests for the 2010 calendar year. In Re: Gary Davis, : File Docket: 11-025 Respondent : Date Decided: 1/28/13 : Date Mailed: 2/13/13 ORDER NO. 1611 1. As a Member of the City of Jeannette Municipal Authority (“Authority”) Board of Directors (“Board”), Gary Davis (“Davis”) violated Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), in relation to his participation, as a Member of the Board, which resulted in the hiring of his spouse for a compensated position with the Authority. 2. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Davis failed to file a Statement of Financial Interests for the 2009 calendar year. 3. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred in relation to Davis’s failure to disclose his occupation and/or profession, direct and/or indirect sources of income, and office, directorship or employment in any business on a Statement of Financial Interests for the 2010 calendar year. 4. Per the Consent Agreement of the parties, Davis is directed to make payment in the amount of $6,498.90 payable to the City of Jeanette Municipal Authority and forwarded to the Pennsylvania State Ethics Commission by no later than the th thirtieth (30) day after the mailing date of this Order. 5. Per the Consent Agreement of the parties, Davis is directed to not accept any reimbursement, compensation or other payment from the Authority representing a full or partial reimbursement of the amount paid in settlement of this matter. 6. Davis is directed to fulfill his agreement to resign from his position as a Member and th Chairman of the Authority by no later than the thirtieth (30) day after the mailing date of this Order. 7. To the extent he has not already done so, Davis is directed to file a Statement of Financial Interests for calendar year 2009 and an amended Statement of Financial Interests for calendar year 2010 with the Authority, through this Commission, providing full disclosure as required by the Ethics Act, by no later than the thirtieth th (30) day after the mailing date of this Order. 8. Compliance with Paragraphs 4, 5, 6, and 7 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