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HomeMy WebLinkAbout1624 Geary In Re: William H. Geary, : File Docket: 12-017 Respondent : X-ref: Order No. 1624 : Date Decided: 2/6/14 : Date Mailed: 2/12/14 Before: John J. Bolger, Chair Nicholas A. Colafella, Vice Chair Raquel K. Bergen Mark R. Corrigan Roger Nick Kathryn Streeter Lewis 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 William Geary, a public official/public employee in his capacity as a Supervisor for Bullskin Township, Fayette County, violated Section 1103(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § 1103(a), when he used the authority of his public position for a private pecuniary benefit when he participated in discussions and actions of the Board of Supervisors to set a monthly vehicle allowance for him without auditor approval; when he subsequently participated in actions of the Board to issue vehicle allowance payments to him; when he submitted and approved per mile reimbursement to himself for use of his personal vehicle while simultaneously receiving a monthly vehicle allowance; and when he submitted for reimbursement and approved payments to himself for lodging and subsistence for travel unrelated to Township business. II.FINDINGS: 1. William Geary has served as a Supervisor for Bullskin Township, Fayette County, from January 2, 1996, through the present. a. Geary currently holds the office of Secretary/Treasurer of the [Township]. 1. Geary has served as the Secretary/Treasurer of the [Township], as well as the Vice-Chairman of the [Township Board of Supervisors], at varying times during his tenure. Geary, 12-017 Page 2 b. Geary has been employed as a full-time roadmaster for the Township during his entire tenure as a Supervisor. 2. Bullskin Township (hereafter, “Township”) is a Second Class Township governed by a three Member Board of Supervisors. a. The Township holds one regularly scheduled legislative meeting per month on the last Wednesday of each month. 1. The Township does not hold regularly scheduled agenda/workshop meetings. b. The Township holds special meetings as necessary. 3. Bullskin Township Supervisors receive $2,500.00 gross annually, paid in quarterly installments, for services rendered in their elected Supervisor/public official capacity. a. The Supervisors need not be present at every meeting held to receive their Supervisor salary. 4. Voting at Township meetings occurs in group “aye/nay” fashion after a motion is made and properly seconded. a. Any abstentions or objections made during the vote are specifically noted in the minutes. b. Minutes of each meeting are approved for accuracy at the subsequent meeting. 5. Signature authority over Township accounts is maintained by all three Supervisors. a. Township-issued checks require the signatures of any combination of two of the three Township Supervisors. b. Signatures on Township checks must be live signatures. 1. Facsimile stamps are not utilized. 6. The Township Supervisors receive a meeting packet for review prior to each regularly scheduled legislative meeting. a. The meeting packets are prepared by the Township Clerk and are placed on the desk for the Supervisors in the Township office. 1. The meeting packets are prepared and available to the Supervisors no later than the day of the legislative meeting. 7. The meeting packet routinely consists of the upcoming meeting agenda, a written copy of the prior month’s meeting minutes, and a listing of all bills received by the Township but which have not yet been paid, since the prior meeting. a. Normal recurring bills (e.g., utility bills) are paid prior to the monthly meetings and are not listed on the register of bills presented for approval at the meetings. Geary, 12-017 Page 3 1. The vote taken at each legislative meeting to approve bills includes the approval of any checks issued prior to the date of the meeting. b. The register of bills maintained by the Township in the official Township minute books documents all bills approved for payment at each meeting. 8. The Township maintains a road crew to address various road/maintenance related issues in the Township. a. All three Township Supervisors are typically appointed as roadmasters at the annual Township reorganization meeting. 1. Township Supervisors are traditionally employed as full-time employees/roadmasters. b. The Township also employs five full-time road crew laborers. 9. The Township is divided into three approximately equal geographical sections for purposes of road/maintenance issues. a. Each Supervisor/roadmaster is assigned a specific geographic section of the Township for which he is responsible. b. Each Supervisor/roadmaster is assigned at least one full-time road crew employee to assist with road/maintenance related issues. 1. Multiple members and/or all members of the road crew may be assigned to work in a specific Supervisor’s geographic section dependent upon work being conducted. 10. The Township roadmasters are responsible for maintaining the Township roads, including: inspecting roads; plowing roads; maintaining the Township vehicles; etc. a. The Township has no written job description for the roadmaster position. 11. The Township Supervisors/roadmasters are to perform actual physical labor with the road crew. 12. The Township maintains multiple pieces of equipment to facilitate the completion of road projects/road maintenance, including four large single axle dump trucks and four small trucks. a. Operation of the single axle dump trucks requires a Commercial Driver’s License (“CDL”). 1. Geary currently holds a CDL. b. Smaller trucks owned by the Township do not require a CDL. 13. The Township vehicles are housed in the Township garage. a. The Township garage is a separate structure from the Township Municipal Building. 1. The Township garage and Township building sit contiguous to one another. Geary, 12-017 Page 4 14. The Township Supervisors’ reorganization meeting minutes from 2007 through 2012 document Geary’s annual appointment as one of three Township roadmasters, as shown below: Reorganization Meeting Date January 2, 2007 January 7, 2008 January 5, 2009 January 4, 2010 January 3, 2011 January 3, 2012 a. Other than that of a Township roadmaster, Geary was not employed in any full-time capacity during his service as a Township Supervisor. 15. The local board of auditors for a Second Class Township is responsible for the setting of wages and benefits for township supervisors who are appointed to positions of employment (e.g., roadmaster) within their respective municipality. a. The board of auditors is to meet and reorganize on the first Tuesday after the reorganization meeting of the township supervisors. b. Establishment of working supervisor salaries and benefits, among other issues, is to be addressed at the auditor reorganization meeting. 16. The Township Auditors are responsible for setting the wages and benefits of Supervisors serving as employees of the Township. a. The Township Auditors do not set compensation or benefits received by the Supervisors in their capacity as public officials. 1. Compensation received by the Township Supervisors in their capacity as public officials is delineated in Article VI, Section 606, of the Second Class Township Code. 17. Since approved by the Township Auditors at the January 3, 1973, Auditors reorganization meeting, the Bullskin Township Supervisors/roadmasters have consistently received as part of their employee compensation: the benefit of a specific per mile reimbursement at an established rate; a flat daily vehicle allowance; or a flat monthly vehicle allowance, for use of their personal vehicles for Township business. a. Auditors have historically set the vehicle allowance as an employment benefit for the working Supervisors as employees of the Township. b. The method of determining payment (e.g., per mile reimbursement or flat vehicle allowance) has been set by the Township Auditors during their reorganization meetings since the benefit was first instituted in January 1973. 18. The method by which payment has been issued to the working Supervisors, for use of their personal vehicles while on Township business, has changed since the benefit was first instituted in January 1973. Geary, 12-017 Page 5 a. The working Supervisors received actual per mile reimbursement at a rate authorized by the Township Auditors during reorganization meetings held from approximately 1973 through 1988, for those respective years. 1. Reimbursement was only made once an expense voucher was submitted stating the reason for use of a personal vehicle and the mileage traveled. b. The working Supervisors received a set daily vehicle allowance in an amount authorized by the Township Auditors during reorganization meetings held from approximately 1989 through 1993, for those respective years. c. The working Supervisors received a set monthly vehicle allowance in an amount authorized by the Township Auditors during reorganization meetings held from approximately 1994 through 2011, for those respective years. 1. From at least January 1995 through December 2011, the Township Auditors approved a monthly vehicle allowance in the amount of $250.00 per month, for use of a Supervisor’s personal vehicle for Township business. 2. As early as the 2000 Auditor reorganization meeting, the automotive allowance was termed by the Auditors as a “fringe benefit” of roadmasters. 19. The Township Board of Auditors reorganization [meeting] minutes from 2007 through 2011 document Geary’s hourly rate and fringe benefits, as approved by the Township Auditors, in his full-time roadmaster employment position as shown below: Auditors Hourly Benefits* Reorganization Meeting Rate January 3, 2007 $18.00 Fringe benefits remain same January 8, 2008 $18.50 Fringe benefits remain same January 6, 2009 $18.80 Fringe benefits remain same January 5, 2010 $19.00 Fringe benefits remain same January 4, 2011 $19.00 Fringe benefits remain same *As applicable to the $250 monthly reimbursement for personal vehicle use benefit 20. Geary has received a flat $250.00 monthly vehicle allowance for use of his personal vehicle for Township business during his entire tenure as a roadmaster. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT GEARY PARTICIPATED IN ACTIONS AND DECISIONS OF THE BOARD OF SUPERVISORS IN 2012 TO REINSTATE A MONTHLY VEHICLE ALLOWANCE FOR A SUPERVISOR/ROADMASTER’S USE OF HIS PERSONAL VEHICLE FOR TOWNSHIP BUSINESS. 21. Prior to 2012, the Township Supervisors had no objections or concerns with the Township Auditors establishing the vehicle allowance or the manner in which the allowance was issued. a. From at least 1995 through 2011, the Township Supervisors had received a set $250.00 monthly allowance for use of their personal vehicles while on Township business. Geary, 12-017 Page 6 22. The Bullskin Township Auditors reorganization meeting for 2012 was scheduled to take place at the Township Municipal Building on January 4, 2012, at 7:00 p.m. a. On January 4, 2012, the Township Auditors were Lee Ann Boring, Jeff Hann, and John Coughenour. 23. During the Executive Session held prior to the January 4, 2012 meeting, the Township Auditors discussed possible changes to the wages and benefits for roadmasters/Township employees for the 2012 calendar year, including the following: a. A reduction in the number of paid holidays from fourteen to ten. b. A requirement for each working Supervisor to pay fifty dollars per pay toward health insurance premiums. c. A reduction in the number of weeks of vacation by one week. d. Abolishment of the monthly vehicle allowance, to be replaced as follows: 1. Mileage to be paid at the standard IRS rate of $0.555 per mile for the 2012 year. 2. Completion by each of the working Supervisors/roadmasters of a mileage report, to be provided to the Township Auditors, to include name, date, location, nature of business, and total miles traveled, to be recorded daily on each form. 3. Mileage reports to be filed with reimbursement requests and [mileage to be] paid quarterly. 24. The January 4, 2012, Township Auditors reorganization meeting was called to order as scheduled at 7:00 p.m. at the Township Municipal Building. a. The door to the Municipal Building was open upon the Auditors’ return to the Municipal Building. b. Geary, [Township Supervisor Walter] Wiltrout, and [Township Supervisor Thomas] Keefer were all present for the reorganization meeting. 25. During the reorganization meeting, the Auditors took comments from the public (including the Supervisors); elected Auditor officers for the year; and established the wages and benefits for the working Supervisors in their capacity as roadmasters/Township employees. a. A request by the Supervisors for an increase in roadmaster wages was denied. 1. The wages for the working Supervisors in their capacity as roadmasters/Township employees remained static from 2011. b. Changes discussed by the Auditors in the Executive Session held prior to the reorganization meeting were approved/set by the Auditors via unanimous 3-0 [vote]. 26. Geary, Wiltrout, and Keefer were opposed to the changes instituted by the Township Auditors regarding mileage reimbursement, reduction in the amount of Geary, 12-017 Page 7 paid holidays, reduction of vacation time, and contribution requirements related to health insurance premiums. a. Geary, Wiltrout, and Keefer subsequently contacted Township Solicitor Donald McCue and requested McCue to research the legality of the Auditors instituting the changes. 1. McCue’s research consisted of reviewing case law, as well as contacting the Pennsylvania State Association of Township Supervisors’ Department of Policy and Research Development. b. The Township Supervisors had previously expressed no opposition to the Township Auditors establishing the mileage reimbursement/allowance for working Supervisors in their employee capacity prior to 2012. 27. McCue’s opinion was that the Township Auditors did not have the authority to institute the changes set forth at the January 4, 2012, Auditors reorganization meeting in relation to wages and benefits set for the working Supervisors. a. McCue conveyed his determination to Geary, Wiltrout, and Keefer. b. Geary, Wiltrout, and Keefer subsequently directed McCue to generate a Resolution for adoption which refuted the Auditors’ authority to institute the changes. 28. McCue generated Bullskin Township Resolution Number 12-1-2 for approval at the next regularly scheduled meeting of the Township Supervisors. a. Bullskin Township Resolution Number 12-1-2 addressed the authorization of Bullskin Township Supervisors/roadmasters to continue to receive a vehicle allowance when using their personal vehicles for Township business, and health insurance provisions for Township Supervisors and roadmasters. 29. Included within Resolution 12-1-2, in relation to the monthly vehicle allowance, was among other information, the following: a. The Township Supervisors/roadmasters had been using their personal vehicles for Township business for a number of years. b. The Township Supervisors had carefully evaluated the situation and determined that it was in the best interest of the Township to continue the longstanding practice of paying the Township Supervisors/roadmasters the sum of $250.00 per month rather than incurring the cost of buying vehicles for the Township Supervisors/roadmasters. c. The Township Solicitor had researched the Second Class Township Code and legally concluded that the Township Auditors did not have the authority to change the rate established for the use of personal vehicles while on Township business. 1. The Township Solicitor had also received an opinion from the Pennsylvania State Association of Township Supervisors that automobile allowance lies within the exclusive control of the Township Supervisors/roadmasters and outside the scope of authority assigned to the Township Auditors. Geary, 12-017 Page 8 d. The Township Secretary (Geary) was directed to continue issuing payment to the Township Supervisors/roadmasters for the use of their personal vehicles while conducting Township business. 30. Resolution 12-1-2 was presented for adoption by the Township Supervisors at the January 25, 2012, regular meeting via motion by Geary and second by Keefer. a. All three Supervisors were present at the January 25, 2012, meeting. b. Geary, Wiltrout, and Keefer approved Resolution 12-1-2 by unanimous 3-0 vote. IN THE FOLLOWING FINDINGS, THE PARTIES (RESPONDENT AND THE INVESTIGATIVE DIVISION) SET FORTH THEIR INTERPRETATION OF CERTAIN PROVISIONS OF THE SECOND CLASS TOWNSHIP CODE AND THE UNIFORM MILEAGE FEE LAW AND STIPULATE THAT THE MONTHLY MILEAGE ALLOWANCE SET BY RESOLUTION 12-1-2 WAS A FORM OF COMPENSATION, RATHER THAN A MILEAGE FEE. 31. The Second Class Township Code, specifically 53 P.S. § 65606(a), states in pertinent part: mileage allowance a. “The board of supervisors may establish a , under the act of July 20, 1979 (P.L. 156, No. 51), referred to as the Uniform Mileage Fee Law, to be paid to officers and employes for the use of a personal vehicle when required and actually used for authorized township business.” 53 P.S. § 65606(a) (Emphasis added). 32. In establishing “mileage allowance,” the Second Class Township Code references the Uniform Mileage Fee Law, which states: a. “Notwithstanding the provisions of any other act to the contrary the mileage fee to be charged and received by members of the General Assembly, public officials, officers or employees may be established by the General Assembly, Commonwealth, its political subdivisions, intermediate units and authorities.” 65 P.S. § 371. b. The Uniform Mileage Fee Law essentially codifies the ability of Township public officials to establish a “mileage fee.” c. “Mileage” is defined as: “[a]llowance for traveling expenses at certain rate per mile. Especially to members of legislative bodies, witnesses, sheriffs, th and bailiffs.” BLACK’S LAW DICTIONARY at 992 (6 ed. 1990). 33. Resolution Number 12-1-2 established a monthly mileage allowance which provides for a flat monthly payment for Township Supervisors, as opposed to a mileage allowance representing reimbursement for actual mileage, as required by provisions of the Second Class Township Code. a. Resolution 12-1-2 provides a flat rate of $250.00 per month payable to Township Supervisors/roadmasters regardless of actual miles traveled. b. Resolution 12-1-2’s flat rate of $250.00 per month is not based upon a per mile calculation, and does not require any accountability to verify miles traveled were required and actually used for authorized Township business. Geary, 12-017 Page 9 c. The setting of a flat rate of $250.00 per month payment for Township Supervisors/roadmasters creates a form of compensation, rather than sets a mileage reimbursement policy. 34. The $250.00 monthly payment only applies to Township Supervisors/roadmasters. a. All remaining Township employees are reimbursed for any use of their personal vehicles via specific per mile reimbursement at the rate established by the Supervisors at the Supervisors’ annual reorganization meeting. 35. Geary and the remaining Supervisors used the authority of their public positions for a private pecuniary gain when approving Resolution 12-1-2, resulting in a benefit for themselves in their Township employee capacities. a. All wages and benefits to be received by the working Supervisors in their Township employee capacities must be established by the Township Auditors. 36. Geary and the remaining Supervisors received the $250.00 monthly vehicle allowance throughout the 2012 calendar year as a result of their voting to approve Resolution 12-1-2 at the January 25, 2012, Supervisors meeting. a. Geary voted in favor on all twelve occasions in calendar year 2012 to approve his receipt of a monthly vehicle allowance which had not been approved by the Township Auditors. b. Geary signed all twelve of the monthly vehicle allowance checks made payable to him in 2012, as an authorized Township signatory. 37. Geary received twelve checks from the Township totaling $4,191.04 spanning the time frame of January 2012 through December 2012 in allowances/reimbursements, of which $3,000.00 was representative of the monthly vehicle allowance detailed in Resolution 12-1-2. a. The receipt of a monthly vehicle allowance was not approved by the Township Auditors for 2012. 1. All wages and benefits received by Supervisors in their capacity as Township employees must be established and approved by the Township Auditors. b. The remaining $1,191.04 was issued as reimbursement for PSATS expenses, postage, and other miscellaneous reimbursements claimed. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT GEARY SUBMITTED AND APPROVED PER MILE REIMBURSEMENT TO HIMSELF FOR USE OF A PERSONAL VEHICLE WHILE SIMULTANEOUSLY RECEIVING A MILEAGE ALLOWANCE, AND THAT HE SUBMITTED AND APPROVED PAYMENTS FOR REIMBURSEMENT FOR LODGING AND SUBSISTENCE UNRELATED TO TOWNSHIP BUSINESS. 38. The Pennsylvania State Association of Township Supervisors (“PSATS”) has been serving Second Class Townships since approximately 1921. a. The Association was created via Act 189 to represent the interests of townships and authorized townships to join [sic]. Geary, 12-017 Page 10 b. The mission of the Association is to preserve and strengthen township government through various tactics, including educating and informing its members through workshops, an annual conference and trade show, and publications. 39. PSATS sponsors an annual convention held at The Hershey Lodge & Convention Center, Hershey, Pennsylvania, for its member townships for the purpose of education, training, and networking regarding local government. a. Bullskin Township is a PSATS member township. 40. The annual, four day PSATS convention routinely begins on Sunday and concludes on Wednesday. a. Workshops, seminars, and other sessions, as well as registration, are often available on Sunday as early as 8:30 a.m. and continue throughout the day. 41. Township reorganization meeting minutes for 2007, and from 2009 through 2012, document approval for representatives from Bullskin Township to attend PSATS conventions. 42. Geary participated by voting at the Supervisor reorganization meetings in 2007, and from 2009 through 2012, to approve Bullskin Township representative and/or Supervisor attendance at each applicable year’s PSATS convention and general mileage reimbursement. 43. Township reorganization [meeting] minutes for the years 2007 through 2012 document no separate or specific approval for reimbursement of expenses (lodging, subsistence, etc.) incurred by attendees at the PSATS conventions. a. An understanding that reimbursement of valid expenses was permitted was inherent in the approval for Township representatives to attend the conventions. b. Reorganization [meeting] minutes document a general motion to set reimbursable mileage at the IRS rate for each of the applicable years, with the exception of 2007, as shown below: 2007 2008* 2009 2010 2011* 2012 None $0.505/$0.585 $0.55 $0.50 $0.51/$0.555 $0.555 *Amounts applicable from January-June/July-December 1. Reorganization [meeting] minutes for 2007 document no Supervisor action taken to establish a specific per mile reimbursement amount for the 2007 calendar year. 44. Section 1402 of the Second Class Township Code sets limitations regarding allowed expenses for delegates attending the annual PSATS convention to: the registration fee; mileage for use of a personal vehicle or reimbursement of actual transportation expense going to and returning from the meeting; plus all other actual expenses that the board of supervisors agrees to pay. a. Additionally noted is that supervisors employed by the township may be compensated at their regular employee rate during their attendance at the convention. Geary, 12-017 Page 11 45. Delegates attending PSATS conventions must submit to the board of supervisors an itemized account of all expenses incurred in relation to the convention. 46. Supervisor attendance at the annual PSATS convention is documented by way of an Official Delegate’s Attendance Certification. a. PSATS representatives issue the Attendance Certifications to township delegates contemporaneous to the completion of the general session on the last day of the convention. 47. Geary’s Attendance Certifications for annual conventions held document his attendance on all four days of each respective conference held in 2007, 2009, 2011, and 2012. 48. PSATS also provides township delegates with blank expense reports to be utilized in documenting itemized expenses regarding attendance at PSATS conventions. a. The expense report provided by PSATS contains categories for the date, area (from and to), miles traveled, meals, lodging, registration fee, and miscellaneous. 49. Geary utilized one of his personal vehicles to travel to the PSATS conventions in 2007, 2009, 2011, and 2012. a. Geary claimed reimbursement for mileage in association with his travel to the PSATS conventions even though Geary received a monthly vehicle reimbursement for use of his personal vehicle for Township business. b. Geary voted to approve the payment of per mile reimbursement at a time when he was simultaneously receiving a monthly vehicle reimbursement for use of his personal vehicle for Township business. 50. Geary’s expense reports submitted to the Township for travel and attendance at the 2007, 2009, 2011, and 2012 PSATS conventions documented mileage reimbursement claims totaling $847.62 as shown below: Year Miles Claimed Per Mile Rate Total 2007 396 $0.485 $192.06 2009 402 $0.55 $221.10 2011 398.1 $0.51 $203.02 2012 417 $0.555 $231.44 Total $847.62 51. Geary’s Convention Registration and Hotel Reservation forms for the 2007, 2009, 2011, and 2012 PSATS conventions consistently document Geary’s travel to the PSATS convention one day in advance of the start of the actual convention. III.DISCUSSION: As a Supervisor for Bullskin Township (“Township”), Fayette County, from January 2, 1996, through the present, Respondent William H. Geary, also referred to hereinafter as “Respondent,” “Respondent Geary,” and “Geary,” has been a public official subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. The allegations are that Gearyviolated Section 1103(a) of the Ethics Act when he used the authority of his public position for a private pecuniary benefit: (1) when he Geary, 12-017 Page 12 participated in discussions and actions of the Township Board of Supervisors to set a monthly vehicle allowance for him without auditor approval; (2) when he subsequently participated in actions of the Township Board of Supervisors to issue vehicle allowance payments to him; (3) when he submitted and approved per mile reimbursement to himself for use of his personal vehicle while simultaneously receiving a monthly vehicle allowance; and (4) when he submitted for reimbursement and approved payments to himself for lodging and subsistence for travel unrelated to Township 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. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are set forth above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. The Township is governed by a three-Member Board of Supervisors. Geary has served as a Township Supervisor from January 2, 1996, through the present. Geary currently holds the office of Township Secretary/Treasurer. All three Supervisors maintain signature authority over Township accounts. Township-issued checks require the signatures of any two of the Supervisors. Geary, 12-017 Page 13 The Township maintains a road crew to address various road/maintenance related issues in the Township. All three Supervisors are typically appointed as full-time Township employees/roadmasters at the annual Supervisors reorganization meeting. Geary has been employed as a full-time Township roadmaster during his entire tenure as a Supervisor. Each Supervisor/roadmaster is assigned a specific geographic section of the Township for which he is responsible. The Township roadmasters’ responsibilities include inspecting and plowing Township roads and maintaining Township vehicles. The Township also employs five full-time road crew laborers. The Township Board of Auditors is responsible for setting the wages and benefits of Township Supervisors who are appointed to positions of employment with the Township. The establishment of working Supervisor salaries and benefits is to be addressed at the Auditors reorganization meeting on the first Tuesday after the Supervisors reorganization meeting. The Auditors do not set compensation or benefits received by the Supervisors as public officials. The Supervisors receive $2,500.00 gross annually, paid in quarterly installments, for services rendered as Supervisors. Since 1973, Supervisors employed as Township roadmasters have consistently received—in the form of an employment benefit/compensation—payment for the use of their personal vehicles for Township business. During reorganization meetings, the Auditors have historically set the method by which payment is issued to working Supervisors for use of their personal vehicles for Township business as: (1) a specific per mile reimbursement at an established rate; (2) a flat daily vehicle allowance; or (3) a flat monthly vehicle allowance. From at least January 1995 through December 2011, the Auditors approved a vehicle allowance in the amount of $250.00 per month for use of a working Supervisor’s personal vehicle for Township business. As early as the Auditors reorganization meeting in 2000, the vehicle allowance was termed by the Auditors as a “fringe benefit” of roadmasters. Prior to 2012, the Supervisors had no objections or concerns with the Auditors establishing the vehicle allowance for working Supervisors or with the manner in which the vehicle allowance was issued. The Auditors reorganization meeting for 2012 was held at the Township Municipal Building on January 4, 2012. During the Executive Session held prior to the reorganization meeting, the Auditors discussed possible changes to the wages and benefits for roadmasters/Township employees for the 2012 calendar year. The possible changes included, in pertinent part, abolishing the monthly vehicle allowance and replacing it as follows: (1) mileage to be paid at the standard IRS rate of $0.555 per mile for the year 2012; (2) completion by each of the working Supervisors/roadmasters of a mileage report to be provided to the Auditors, with name, date, location, nature of business, and total miles traveled to be recorded daily; and (3) mileage reports to be filed with reimbursement requests and mileage to be paid quarterly. During the January 4, 2012, reorganization meeting, the Auditors established the wages and benefits for the working Supervisors as roadmasters/Township employees and included the possible changes discussed in the Executive Session. Geary and the other two Township Supervisors, Walter Wiltrout (“Wiltrout”) and Thomas Keefer (“Keefer”), were present for the reorganization meeting and were opposed to the changes to wages and benefits instituted by the Auditors, including the changes regarding mileage reimbursement. Geary, Wiltrout, and Keefer subsequently contacted Township Solicitor Donald McCue (“McCue”) and requested that he research the legality of the Auditors instituting the changes. McCue conveyed to Geary, Wiltrout, and Keefer his opinion that the Auditors did not have the authority to institute the changes set forth at the January 4, 2012, Auditors reorganization meeting in relation to wages and benefits set for the working Supervisors. Geary, 12-017 Page 14 Geary, Wiltrout, and Keefer directed McCue to generate a Resolution for adoption which refuted the Auditors’ authority to institute the changes. McCue generated Township Resolution Number 12-1-2, also referred to hereinafter as “the Resolution,” which addressed, in pertinent part, the authorization of Supervisors/roadmasters to continue to receive a vehicle allowance when using their personal vehicles for Township business. The Resolution provided that the Supervisors had carefully evaluated the situation and determined that it was in the best interest of the Township to continue the longstanding practice of paying the Supervisors/roadmasters the sum of $250.00 per month rather than incurring the cost of buying vehicles for the Supervisors/roadmasters. The Resolution further provided that the Township Solicitor had concluded that the Auditors did not have the authority to change the rate established for the use of personal vehicles while on Township business. The Resolution directed the Township Secretary to continue issuing payment to the Supervisors/roadmasters for the use of their personal vehicles while conducting Township business. At the January 25, 2012, meeting of the Board of Supervisors, the Resolution was presented for adoption by a motion by Geary, which was seconded by Keefer. The three Supervisors approved the Resolution by a unanimous vote. The Resolution established a flat rate of $250.00 per month payable to Supervisors/roadmasters regardless of actual miles traveled and did not require any accountability to verify that miles traveled were required and actually used for authorized Township business. The $250.00 monthly payment applied only to Supervisors/roadmasters, and all remaining Township employees were to be reimbursed for any use of their personal vehicles via specific per mile reimbursement at the rate established by the Supervisors at the annual Supervisors reorganization meeting. In the Stipulated Findings, the parties (Respondent and the Investigative Division) have set forth their interpretation of certain provisions of the Second Class Township Code and the Uniform Mileage Fee Law and have stipulated that the monthly mileage allowance set by the Resolution was a form of compensation, rather than a mileage fee. Through their Stipulations, the parties have contractually designated the nature of the payments made pursuant to the Resolution as compensation that only the Auditors could set. As a result of the parties’ Stipulations, we are not presented with legal issues as to how mileage fees should be structured under the Second Class Township Code and Uniform Mileage Fee Law, which laws this Commission does not have the statutory jurisdiction to interpret. The parties have further stipulated that Geary used the authority of his public position for a private pecuniary gain when he approved the Resolution, which resulted in a benefit for him in his Township employee capacity. Geary and the other two Supervisors received the $250.00 monthly vehicle allowance throughout the 2012 calendar year as a result of voting to approve the Resolution. Geary voted on all twelve occasions to approve his receipt of the $250.00 monthly vehicle allowance for 2012, and he signed as an authorized Township signatory all twelve of the monthly vehicle allowance checks made payable to him in 2012. For the time frame of January 2012 through December 2012, Geary received twelve checks from the Township totaling $4,191.04 in allowances/reimbursements, of which $3,000.00 was representative of the monthly vehicle allowance detailed in the Resolution. The Pennsylvania State Association of Township Supervisors (“PSATS”) has been serving Second Class Townships since approximately 1921. PSATS sponsors an annual conference held at The Hershey Lodge & Convention Center, Hershey, Pennsylvania, for its member townships for the purpose of education, training, and networking regarding local government. The PSATS conference routinely begins on Sunday and concludes on Wednesday. The Second Class Township Code limits allowed expenses for delegates attending the PSATS conference to the registration fee, mileage for use of a personal Geary, 12-017 Page 15 vehicle or reimbursement of actual transportation expense going to and returning from the PSATS conference, and all other actual expenses that the township board of supervisors agrees to pay. Delegates attending the PSATS conference must submit to the township board of supervisors an itemized account of all expenses incurred in relation to the PSATS conference. The Township is a PSATS member township. Geary participated by voting at the Supervisors reorganization meetings in 2007 and from 2009 through 2012 to approve Township representative and/or Supervisor attendance at each applicable year’s PSATS conference and general mileage reimbursement. Township reorganization meeting minutes for the years 2007 through 2012 document no separate or specific approval for reimbursement of expenses such as lodging, subsistence, and the like incurred by attendees at the PSATS conference. An understanding that reimbursement of valid expenses was permitted was inherent in the approval for Township representatives to attend the PSATS conference. Geary’s attendance at all four days of each PSATS conference held in 2007, 2009, 2011, and 2012 is documented by his Official Delegate’s Attendance Certifications. Geary utilized one of his personal vehicles to travel to the PSATS conferences in 2007, 2009, 2011, and 2012. Geary’s expense reports submitted to the Township for travel to and attendance at the PSATS conferences in 2007, 2009, 2011, and 2012 documented mileage reimbursement claims totaling $847.62. Geary claimed reimbursement for mileage in association with his travel to the PSATS conferences and voted to approve the payment of per mile reimbursement even though he received a monthly vehicle reimbursement for use of his personal vehicle for Township business. 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 Geary’s use of authority of his office as a Member of the Board of Supervisors to set a monthly vehicle allowance for Members of the Board of Supervisors, in their capacity as employees of the Township, which included himself as roadmaster. b. That no violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a) occurred in relation to Geary’s submission and approval of a per mile reimbursement to himself for use of his personal vehicle in his capacity as an elected official, while simultaneously receiving a monthly vehicle allowance as an employee. c. That no violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a) occurred in relation to Geary’s Geary, 12-017 Page 16 submission and approval for reimbursement of lodging and subsistence expenses related to PSATS conferences. 4. Geary agrees to make payment in the amount of $4,000.00 in settlement of this matter as follows: a. Geary agrees to make payment in the amount of $3,000.00 in settlement of this matter payable to Bullskin Township and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. b. Geary agrees to make reimbursement in the amount of $1,000.00, representing a portion of the expenses and costs incurred by the State Ethics Commission in the investigation and administrative prosecution of the instant matter, payable by certified check or money order, and made payable to the Pennsylvania State Ethics Commission. 5. Nothing in this Consent Agreement prohibits Geary, and/or other Members of the Board of Supervisors, from requesting of the Township reimbursement for per mile usage of a personal vehicle for official Township purposes during calendar year 2012, upon a showing of sufficient mileage logs and evidence of actual usage, to the satisfaction of the governing body of the Township. 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 of the parties, we accept the parties’ recommendation for a finding that a violation of Section 1103(a) of the Ethics Act occurred in relation to Geary’s use of authority of his office as a Member of the Board of Supervisors to set a monthly vehicle allowance for Members of the Board of Supervisors in their capacity as employees of the Township, which included him as roadmaster. The Auditors are responsible for setting the wages and benefits of Supervisors serving as Township employees. Since 1973, the Supervisors serving as roadmasters have consistently received—in the form of an employment benefit/compensation—either actual per mile reimbursement at an established rate or a daily or monthly vehicle allowance for use of their personal vehicles for Township business, as set by the Auditors. From at least January 1995 through December 2011, the Auditors approved a flat $250.00 monthly vehicle allowance for use of a working Supervisor’s personal vehicle for Township business. Geary, 12-017 Page 17 For the year 2012, the Auditors abolished the $250.00 monthly vehicle allowance for working Supervisors and replaced it with mileage reimbursement at the standard IRS rate. Geary and the other two Supervisors, all of whom were employed as Township roadmasters in 2012, subsequently directed the Township Solicitor to generate a resolution for adoption which refuted the Auditors’ authority to institute the changes to the method of payment for the Supervisors’ use of their personal vehicles for Township business. All three Supervisors voted to approve Resolution Number 12-1-2, which established a flat $250.00 monthly payment for Supervisors/roadmasters for use of their personal vehicles while on Township business. Through their Stipulations, the parties have contractually designated the nature of the payments made pursuant to the Resolution as compensation that only the Auditors could set. The parties have further stipulated that Geary used the authority of his public position for a private pecuniary gain when he approved Resolution Number 12-1-2, which resulted in a benefit for him in his Township employee capacity. Geary further used the authority of his public position as a Supervisor when he voted on all twelve occasions to approve his receipt of the $250.00 monthly vehicle allowance for 2012, and when he signed as an authorized Township signatory all twelve of the monthly vehicle allowance checks made payable to him in 2012. Based upon the particular Stipulated Findings and the Consent Agreement, we hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Geary’s use of authority of his office as a Member of the Board of Supervisors to set a monthly vehicle allowance for Members of the Board of Supervisors in their capacity as employees of the Township, which included him as roadmaster. The parties have recommended a finding that no violation of Section 1103(a) of the Ethics Act occurred in relation to Geary’s submission and approval of a per mile reimbursement to himself for use of his personal vehicle in his capacity as an elected official while simultaneously receiving a monthly vehicle allowance as an employee. The parties have further recommended a finding that no violation of Section 1103(a) of the Ethics Act occurred in relation to Geary’s submission and approval for reimbursement of lodging and subsistence expenses related to PSATS conferences. These recommendations of the parties pertain to Geary’s attendance at PSATS conferences in 2007, 2009, 2011, and 2012. The Second Class Township Code limits allowed expenses for delegates attending the PSATS conference to the registration fee, mileage for use of a personal vehicle or reimbursement of actual transportation expense going to and returning from the PSATS conference, and all other actual expenses that the township board of supervisors agrees to pay. In 2007 and from 2009 through 2012, the Board of Supervisors, including Geary, approved Township representative and/or Supervisor attendance at each applicable year’s PSATS conference and general mileage reimbursement, with the inherent understanding that reimbursement of valid expenses was permitted. Geary utilized one of his personal vehicles to travel to the PSATS conferences in 2007, 2009, 2011, and 2012, and he claimed reimbursement for mileage in association with his travel to those conferences, as approved by the Board of Supervisors as per the Second Class Township Code. There is no basis in the Stipulated Findings for concluding that Geary used the authority of his public position for a private pecuniary benefit in relation to his submission and approval for reimbursement of expenses related to his attendance at the aforesaid PSATS conferences. Based upon the Stipulated Findings and the Consent Agreement, we hold that no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Geary’s submission and approval of a per mile reimbursement to himself for use of his personal vehicle in his capacity as an elected official attending PSATS conferences while simultaneously receiving a monthly vehicle allowance as an employee. Geary, 12-017 Page 18 We further hold that no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Geary’s submission and approval for reimbursement of lodging and subsistence expenses related to PSATS conferences. As part of the Consent Agreement, Geary has agreed to make payment in the amount of $4,000.00 in settlement of this matter payable as follows: (a) $3,000.00 payable to Bullskin Township and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter; and (b) $1,000.00 in reimbursement representing a portion of the expenses and costs incurred by this Commission in the investigation and administrative prosecution of the instant matter, payable by certified check or money order made payable to the Pennsylvania State Ethics Commission. We determine that the Consent Agreement submitted by the parties sets forth a proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, per the Consent Agreement of the parties, Geary is directed to make payment in the amount of $4,000.00 payable as follows: (a) $3,000.00 payable to Bullskin Township and forwarded to the Pennsylvania State Ethics Commission by no later than the th thirtieth (30) day after the mailing date of this adjudication and Order; and (b) $1,000.00 in reimbursement representing a portion of the expenses and costs incurred by the Pennsylvania State Ethics Commission in the investigation and administrative prosecution of the instant matter, payable by certified check or money order made payable to the Pennsylvania State Ethics Commission. We take administrative notice that on October 25, 2013, Geary made payment in the amount of $4,000.00 in accordance with the Consent Agreement of the parties. In that Geary has made payment in the amount of $4,000.00 as per the Consent Agreement of the parties, no further action is required in this case and this case is closed. IV.CONCLUSIONS OF LAW: 1. As a Member of the Bullskin Township (“Township”) Board of Supervisors from January 2, 1996, through the present, Respondent William H. Geary (“Geary”) has been a public official subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. 2. Based upon the particular Stipulated Findings and Consent Agreement of the parties, Geary violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation to his use of authority of his office as a Member of the Township Board of Supervisors to set a monthly vehicle allowance for Members of the Township Board of Supervisors in their capacity as employees of the Township, which included him as roadmaster. 3. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Geary’s submission and approval of a per mile reimbursement to himself for use of his personal vehicle in his capacity as an elected official attending Pennsylvania State Association of Township Supervisors conferences while simultaneously receiving a monthly vehicle allowance as an employee. 4. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Geary’s submission and approval for reimbursement of lodging and subsistence expenses related to Pennsylvania State Association of Township Supervisors conferences. In Re: William H. Geary, : File Docket: 12-017 Respondent : Date Decided: 2/6/14 : Date Mailed: 2/12/14 ORDER NO. 1624 1. Based upon the particular Stipulated Findings and Consent Agreement of the parties, William H. Geary (“Geary”) violated Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), in relation to his use of authority of his office as a Member of the Bullskin Township (“Township”) Board of Supervisors to set a monthly vehicle allowance for Members of the Township Board of Supervisors in their capacity as employees of the Township, which included him as roadmaster. 2. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Geary’s submission and approval of a per mile reimbursement to himself for use of his personal vehicle in his capacity as an elected official attending Pennsylvania State Association of Township Supervisors conferences while simultaneously receiving a monthly vehicle allowance as an employee. 3. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Geary’s submission and approval for reimbursement of lodging and subsistence expenses related to Pennsylvania State Association of Township Supervisors conferences. 4. Per the Consent Agreement of the parties, Geary is directed to make payment in the amount of $4,000.00 payable as follows: (a) $3,000.00 payable to Bullskin Township and forwarded to the Pennsylvania State Ethics Commission by no later th than the thirtieth (30) day after the mailing date of this Order; and (b) $1,000.00 in reimbursement representing a portion of the expenses and costs incurred by the Pennsylvania State Ethics Commission in the investigation and administrative prosecution of the instant matter, payable by certified check or money order made payable to the Pennsylvania State Ethics Commission. a. We take administrative notice that on October 25, 2013, Geary made payment in the amount of $4,000.00 in accordance with the Consent Agreement of the parties. 5. In that Geary has made payment in the amount of $4,000.00 as per the Consent Agreement of the parties, no further action is required in this case and this case is closed. BY THE COMMISSION, ___________________________ John J. Bolger, Chair