HomeMy WebLinkAbout1630 Whitmoyer
In Re: Ronald Whitmoyer, : File Docket: 13-005
Respondent : X-ref: Order No. 1630
: Date Decided: 2/6/14
: Date Mailed: 2/18/14
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 Ronald Whitmoyer, a public official/public employee in his capacity as a
Supervisor for Tulpehocken Township, Berks County, violated Sections 1103(a), 1104(a)
and 1104(d) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a), 1104(a) and
1104(d), when he used the authority of his public position for a private pecuniary benefit to
obtain payments from the Township in lieu of health insurance benefits; when he approved
those payments issued to him; and when he failed to file Statements of Financial Interests
for the 2010 and 2011 calendar years.
II.FINDINGS:
1. Ronald Whitmoyer served as a Tulpehocken Township (Berks County) Supervisor
from approximately 1994 through 2011.
a. Tulpehocken Township is a Second Class Township, governed by a three
(3) Member Board of Supervisors.
b. Whitmoyer, throughout his term as a Township Supervisor, was employed by
the Township as a part-time laborer, working approximately twenty (20) to
thirty (30) hours per week.
2. Between 2006 and 2011, Tulpehocken Township employed a number of individuals
in both a full and part-time capacity, in positions such as: three (3) full time police
Whitmoyer, 13-005
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officers; three (3) part-time secretaries; a part-time Roadmaster; and an unspecified
number of part-time laborers, the latter of which worked on an as-needed basis.
a. Township Supervisors, including Whitmoyer, were employed as part-time
laborers for Tulpehocken Township and worked on an as-needed basis.
1. In addition to the Supervisors, the Township also employed non-
supervisor part-time/as-needed laborers.
b. Since 2000, Whitmoyer worked at least twenty (20) hours per week for the
Township, on a part-time/as needed basis.
3. Prior to January 2000, Tulpehocken Township Supervisors who were employed by
the Township did not participate in any Township provided health care insurance
plans.
a. Prior to 2000, Tulpehocken Township provided Township paid health care
insurance to employees working in excess of twenty (20) hours per week,
specifically excluding working Township Supervisors.
b. During calendar year 2000, the Board of Supervisors authorized Supervisors
to participate in the Township provided group health insurance plan.
4. Per the Second Class Township Code, specifically 53 P.S. § 65606, Township
Supervisors may be enrolled and participate in a fully or partially funded township
group health insurance plan.
a. Actual authorizing language of the Second Class Township Code (“Code”)
reads in part, as follows:
(1) Supervisors, whether or not they are employed by the township, and their
dependents are eligible for inclusion in group life, health, hospitalization,
medical service and accident insurance plans paid in whole or in part by the
township. Supervisors and their dependents who are over sixty-five years of
age are eligible for inclusion in supplemental Medicare insurance coverage
paid, in whole or in part, by the township. Their inclusion in those plans does
not require auditor approval, but does require submission of a letter
requesting participation at a regularly scheduled meeting of the board of
supervisors before commencing participation. 53 P.S. § 65606(c).
b. Per the above-referenced portion of the Code, inclusion in the Township
funded group health insurance plan does not require Auditor approval, but
does require the requesting Supervisor to submit a letter requesting
coverage to the Board of Supervisors at a regularly scheduled Township
meeting.
1. The Township does not possess a letter from Whitmoyer requesting
inclusion in the Township funded group health insurance plan.
5. Although Supervisors are permitted to participate in a Township funded group
health insurance plan, a Supervisor cannot be immediately enrolled, unless
authorization occurred prior to the Supervisor’s current term on the board.
a. Per the Code, “[a]ny change in salary, compensation or emoluments of the
elected office becomes effective at the beginning of the next term of the
supervisor. A decision by the township to pay, in whole or in part, to include
supervisors not employed by the township in insurance plans, as authorized
Whitmoyer, 13-005
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in subsection (c), shall not be implemented with regard to any nonemployee
supervisor until the beginning of the next term of that supervisor.” 53 P.S. §
65606(a).
1. Whitmoyer was elected to serve the following terms in office:
i. January 1, 1999, until December 31, 2005
ii. January 1, 2006, until December 31, 2011
2. Whitmoyer began to receive Township funded group health insurance
benefits in or about year 2000, prior to his next term in office.
6. During the Tulpehocken Township Board of Supervisors January 4, 2000, meeting,
the Board discussed and took action on employee benefits including approving
health care coverage for Supervisors.
7. The Tulpehocken Township Board of Supervisors did not seek approval from the
Board of Auditors prior to the January of 2000 meeting regarding participation by
Supervisors in the Township funded health care insurance plan, as it was not
required per the Code.
a. Whitmoyer asserts that the decision by the Board of Supervisors to allow
participation by Supervisors in the Township’s health care insurance plan
was as a result of changes to the Second Class Township Code that the
Board became aware of, which allowed for Supervisors’ inclusion in the plan.
1. Prior to being amended, the Second Class Township Code required
that health insurance benefits for Supervisors be approved by the
Auditors.
8. The Tulpehocken Township Employee Manual details insurance benefits available
to Township employees, and reads as follows:
a. Insurance Benefits:
It is the intention of the Township to provide plans for health care, life
insurance and retirement that allow for reasonable benefits at realistic costs
to both the Township and its employees. Specific plans and the allocation of
costs between the Township and the employee shall be as specified by
contract. Plan summaries are available in the Township Office, as well as
related forms.
Insurance benefits paid by the Township shall continue during an approved
absence on the condition that the employee returns to work following the
leave. The Township reserves the right to take action to recover the cost of
insurance premiums paid by the Township if the employee does not return to
work.
b. Medical Insurance:
All regular, paid full-time employees are eligible for medical coverage under
a plan determined by the Township. The cost of coverage may be divided
between the Township and the employee in a proportion to be determined by
the Township.
c. Life Insurance
All regular, paid full-time employees are eligible for life insurance benefits
offered through the Township’s medical insurance plan, so long as the
Whitmoyer, 13-005
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employee is enrolled in the Township’s medical insurance plan. Premiums
may be divided between the Township and the employee in a proportion to
be determined by the Township.
9. Whitmoyer participated in the Township funded group health insurance plan from
2000 until March of 2006.
a. Whitmoyer was employed by Tulpehocken Township on a part-time basis
between 2000 and 2006.
10. Payment of group health insurance premiums paid by the Township were included
as part of the Township’s routine payment of bills.
a. Monthly bill lists are compiled by the Township Secretary/Treasurer.
1. The bill lists are provided to the Supervisors for review on the night of
the regular Supervisors meeting.
2. Bill lists are voted on in their entirety by a single motion.
3. The recorded vote identifies a range of check numbers which are to
be approved, along with current account balances. The vote is
generally stated as follows:
aa. “General Account combined with Payroll Account (check
number) to (party to be paid) in the amount of (amount), State
Liquid Fuels Account , Total expenses for this meeting
.”
11. Tulpehocken Township issues payment checks only after approval by the Board of
Supervisors.
a. Checks are prepared by the Township Secretary/Treasurer.
b. Checks are signed by the Township/Secretary and at least one (1)
Supervisor.
1. Facsimile signature stamps are not used.
c. All three (3) Supervisors possess signature authority on the Township
accounts.
12. Around March of 2006, Whitmoyer elected to receive health insurance benefits
through his wife’s employer, the United States Postal Service.
a. Whitmoyer decided to terminate his participation in the Township provided
group health insurance plan and participate in coverage that was available
through his wife’s employer.
13. Beginning May 8, 2006, Whitmoyer began receiving a monthly payment from
Tulpehocken Township, representing payment for the cost of health care insurance
coverage paid for through his wife’s employment with the United States Postal
Service.
a. Whitmoyer received payment from the Township for the same amount as
was being deducted on a bi-weekly basis from Whitmoyer’s wife’s paycheck
for her health care insurance coverage contribution.
Whitmoyer, 13-005
Page 5
14. The Tulpehocken Township Board of Supervisors did not take any action at a Board
of Supervisors meeting to authorize Whitmoyer to receive a payment for health care
insurance premiums paid for by his wife, in lieu of participating in the Township’s
sponsored health insurance plan.
a. Whitmoyer purports that the payment topic was discussed during a Board
Executive Session held as part of the Supervisors March 13, 2006, meeting.
b. Meeting minutes are not taken during Board Executive Sessions.
15. Minutes from the March 13, 2006, Tulpehocken Township Board of Supervisors
meeting confirm that an Executive Session was held from 8:55 p.m. until 9:25 p.m.
a. The stated reason for the Executive Session was “for discussion on the
Township’s health insurance policy.”
b. Meeting minutes did not provide any specific detail regarding the discussion
or whether it related to a payment for non-Township provided health
insurance premiums.
16. The Second Class Township Code (53 P.S. § 65101 et seq.) does not provide for
the receipt of additional compensation in lieu of accepting or enrolling in a township
funded group health insurance plan.
a. Enrollment in township funded group health insurance plans by township
supervisors is not mandatory.
b. The Code does not provide for reimbursement to supervisors or any other
township employee for privately funded or third-party funded health
insurance plans.
17. The Tulpehocken Township employee manual did not include any language
permitting employees eligible for Township paid health care insurance coverage to
receive any sort of reimbursement payment or other compensation in lieu of
participation in the Township provided insurance plan.
a. Whitmoyer purports that the Tulpehocken Township Board of Supervisors’
official action of approving monthly health care premium payments for Joel
Weidner (full-time Police Officer) and Kris Kerschner (Police Chief) on
January 4, 2000, and August 11, 2003, respectively, occurred prior to the
Township’s adoption of the employee manual.
18. In 2006, the Tulpehocken Board of Supervisors took no official action at a Board of
Supervisors meeting, be it through official vote, resolution or motion, to approve
and/or authorize Whitmoyer to receive a cash payment in lieu of participating in the
Township funded group health insurance plan.
a. Whitmoyer purports that the Board of Supervisors approved Whitmoyer’s
receipt of cash payment in lieu of participating in the Township funded group
health insurance plan during its March 13, 2006, executive session.
b. The Tulpehocken Township Board of Auditors did not approve either the
Supervisors’ participation in the Township provided health insurance plan, or
for payment of premiums paid out-of-pocket for a non-Township sponsored
plan.
Whitmoyer, 13-005
Page 6
19. The practice of compensating Township employees for the cost of non-Township
sponsored health care insurance premiums dates from at least the year 2000.
a. Between January 2000 and March 2006, approval was given by the Board of
Supervisors on at least two (2) separate occasions for employees to receive
a payment in lieu of participating in the Township sponsored health care
insurance plan.
b. These prior approvals occurred on January 4, 2000, and August 11, 2003.
20. Minutes from the Tulpehocken Township Board of Supervisors January 4, 2000,
meeting include the following discussion and official action taken, which approves a
monthly health care premium payment for full-time police officer Joel Weidner.
a. “Discussion on health insurance coverage- Joel Weidner (Full time Police)
has waived health insurance coverage with the Township since he has
coverage through his wife. The Board discussed reimbursement of $200 per
month to Joel. The Board also discussed health insurance coverage for the
Supervisors. A motion was made by Lester Feick and seconded by Ken
Ziegler to provide Joel (Weidner) with a reimbursement of $200 per month
and to provide health insurance coverage for the Supervisors. All Board
Members agreed on the motion.”
Present: Ron Whitmoyer, Kenneth Ziegler, Lester Feick
21. Minutes from the Tulpehocken Township Board of Supervisors’ August 11, 2003,
meeting included official action authorizing payment to Police Chief Kris Kerschner
for health insurance premium costs paid through his wife’s employer. Minutes
include the following recorded approval:
a. “An executive session was called by Chairman Whitmoyer to discuss this
matter. When the Board reconvened, a motion was made by Lester Feick to
pay Kris Kerschner (Police Chief) $300 per month for reimbursement of his
wife’s health insurance costs. Kerschner agreed to authorize the Township
to contact his wife’s employer for the costs.”
Present: Ron Whitmoyer, Dale Swope, Lester Feick
22. Between 2006 and 2011, Whitmoyer, and Secretary/Treasurer Judy Bashore and
Kathy Boltz each received health care insurance premium payments from the
Township in lieu of participation in the Township sponsored plan.
a. Each was able to participate in health care insurance coverage available
through the spouse’s employer.
b. Whitmoyer received payments between May 8, 2006, and January 9, 2012.
c. Judy Bashore received payments from approximately February 2006 through
December 2008.
d. Kathy Boltz received payments from approximately December 2008 through
March 2009.
23. Minutes from the Tulpehocken Township Board of Supervisors meetings held
between January 2006 and December 2011 do not include any recorded action
authorizing the health care insurance payments for Whitmoyer, Bashore, or Boltz.
Whitmoyer, 13-005
Page 7
a. During this time frame, the Tulpehocken Township Board of Supervisors
annually approved compensation, including benefits, for Township
employees.
b. The only action even taken by the Board regarding payment of insurance
premiums occurred on January 4, 2000, when the Board authorized a
*
monthly payment to a Township police officer.
*
[Cf., Fact Findings 21-21 a.]
24. Minutes from Tulpehocken Township Board of Supervisors meetings held between
January 2006 and December 2011 document the following official action taken
regarding employee benefits:
a. January 3, 2006:
Holiday Benefits for permanent employees
“Benefits would apply for persons working on average 20 hours or more per
week and would not apply to temporary or seasonal employees. The rate of
pay for holidays, vacation days and sick days would be at a reduced number
of hours worked the previous year. Vacation time and sick time would also
be based on the number of years of service. Dale Swope made a motion that
was seconded by Lester Feick to continue the proposed benefit package for
permanent part-time employees. Upon a roll call vote, all three Board
Members agreed on the motion.”
Present: Whitmoyer, Swope, Feick
b. January 2, 2007:
Holiday Benefits for permanent employees
“Benefits would apply for persons working on average 20 hours or more per
week, and would not apply to temporary or seasonal employees. The rate of
pay for holidays, vacation days and sick days would be at a reduced number
of hours based on the average numbers of hours worked the previous year.
Vacation time and sick time would also be based on the number of years of
service. Holidays are Employee Birthday, New Year’s Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving, the Friday after Thanksgiving
and Christmas Day. Dale Swope made a motion that was seconded by
Lester Feick to continue the proposed benefit package for permanent part-
time employees. Upon a roll call vote, all three Board Members agreed on
the motion.”
Present: Whitmoyer, Swope, Feick
c. January 7, 2008:
“Holiday benefits for permanent employees, these are set as per the
employee manual”
Present: Whitmoyer, Swope, Feick
d. January 5, 2009:
“Holiday benefits for permanent employees, these are set as per the
employee manual”
Present: Whitmoyer, Swope, Kintzer
Whitmoyer, 13-005
Page 8
e. January 4, 2010:
“Holiday benefits for permanent employees, these are set as per the
employee manual”
Present: Whitmoyer, Kramer, Kintzer
f. January 3, 2011:
“Holiday benefits for permanent employees, as per the employee manual”
Present: Whitmoyer, Kramer, Kintzer
25. Tulpehocken Township financial records confirm Whitmoyer receiving health care
insurance premium payments on a monthly basis between May 2006 and January
2012.
a. These payments were generated based on the actual amount withheld from
Whitmoyer’s wife’s paycheck on a bi-weekly basis.
b. To secure payment, Whitmoyer would submit a copy of his wife’s paystub to
the Township each time his wife’s medical insurance withholding increased,
as justification for an increased payment from the Township.
c. The practice of receiving a payment from the Township in the amount of the
deduction from his spouse’s pay was initiated by Whitmoyer as a perceived
cost savings measure for the Township.
1. The practice was never authorized by the Township’s Board of
Auditors or Supervisors at any public meeting.
d. Payments to Whitmoyer were processed and approved in the same manner
as other Township bills.
1. Whitmoyer asserts that there were two occasions where he was
absent from the meeting, those being March 8, 2010, and August 8,
2011.
26. Township records regarding Whitmoyer’s submission of his wife’s paystubs as the
basis for Whitmoyer’s payments from the Township exist only since 2009.
a. Current Township Secretary/Treasurer Kathy Boltz only [received] a paystub
from Whitmoyer when there [was] a change to his wife’s employee
contribution to her employer provided insurance premium.
27. Paystubs submitted by Whitmoyer, as maintained within Tulpehocken Township
financial records, reflect the amounts deducted from Whitmoyer’s wife’s
compensation and represent the employee contribution. These pay stubs were
used to justify the monthly payments to Whitmoyer, as follows: pay dates of 2006-
2008 – no records available; pay date of February 2009 - $110.72; pay date of
February 2010 - $132.83; pay date of March 2011 - $148.70.
a. The above amounts represent bi-weekly deductions, based on twenty-six
(26) pay periods per year.
28. Township meeting minutes and financial records document Whitmoyer’s
participation in approving monthly bill lists, which include medical insurance
premium payments to himself, as well as his execution of the actual checks,
between 2006 and 2011.
Whitmoyer, 13-005
Page 9
a. Between May 8, 2006, and December 12, 2011, sixty-seven (67) health
insurance reimbursement payments were issued to Whitmoyer.
b. During this time period, Whitmoyer voted to approve health insurance
reimbursement payments to himself on sixty-two (62) occasions.
c. During this time period, Whitmoyer signed the health insurance
reimbursement checks to himself on sixty-three (63) occasions.
29. Health insurance payments to Whitmoyer from the Township ceased as of January
9, 2012.
a. Whitmoyer did not participate in the approval of the final health insurance
payment made to him on January 9, 2012.
b. Township check number 13316, in the amount of $322.18, was approved by
the Tulpehocken Township Board of Supervisors on January 9, 2012.
c. Whitmoyer was not a Member of the Board of Supervisors when this
approval was made as his term expired December 21, 2011.
30. Costs incurred by the Township to fund the Township group health insurance plan
are detailed in PCI Insurance, Inc. invoices submitted to Tulpehocken Township.
a. PCI Insurance, Inc. is the vendor which provides the Tulpehocken Township
Health Insurance Account.
b. Township records reflect the monthly premium payments made by the
Township for each employee participating in the Township’s group health
insurance plan since 2007, as follows: 2007 - $619.59 (Individual), $798.58
(Family); 2008 - $681.23 (Individual), $878.03 (Family); 2009 - $800.14
(Individual), $1,031.30 (Family); 2010 - $834.11 (Individual), $1,075.08
(Family); 2011 - $954.29 (Individual), $1,229.96 (Family).
31. The issue of whether Whitmoyer was eligible to continue to receive health care
payments from the Township was discussed during an Executive Session held
during the Board of Supervisors December 12, 2011, meeting.
a. December 2011 was Whitmoyer’s last month as a Tulpehocken Township
Supervisor.
b. The result of the December 21, 2011, Executive Session was discussed
during the Board’s January 9, 2012 meeting.
32. Minutes from the Board of Supervisors January 9, 2012, meeting included the
following discussion regarding the last payment to be made to Whitmoyer:
a. “Chairman John Kintzer made an announcement regarding action taken
resulting from an executive session held December 12, 2011. Based on the
opinion of our Solicitor and Legal Advisor, proof was presented that shows
the Township owed Ron Whitmoyer reimbursement for one more month of
health insurance premium. As a result, Mr. Whitmoyer was issued a check
in the amount of $322.18 which brings the total amount of reimbursements
paid to Mr. Whitmoyer to $14,392.41.”
Whitmoyer, 13-005
Page 10
b. The advice of the solicitor/legal advisor was not as to the legality of the
“reimbursement” payment, but rather that since payments have been already
initiated, lawfully or unlawfully, the Township should make the final
requested payment.
c. The Tulpehocken Township Board of Supervisors did not receive any written
advice from their Solicitor on the matter.
33. Whitmoyer asserted to Commission investigators that his receipt of health care
premium payments was a cost savings for the Township.
a. The payments covered the actual portion of the premium amount deducted
from Whitmoyer’s wife’s bi-weekly paycheck and not any portion of her
employer’s responsibility.
34. During an interview with Commission investigators, Whitmoyer claimed to have first
learned of the need for Board of Auditor approval regarding compensation issues
as a result of an Advice of Counsel issued by the Chief Counsel of the
Pennsylvania State Ethics Commission on April 12, 2010, regarding an unrelated
matter.
a. Whitmoyer requested the Advice of Counsel in relation to his receipt of
vacation and holiday pay as a part-time employee of the Township.
35. On April 12, 2010, the State Ethics Commission’s Office of Chief Counsel issued
Advice of Counsel Number 10-568 to Ronald W. Whitmoyer.
a. The issue addressed as part of this Advice of Counsel was “whether,
pursuant to the Public Official and Employee Ethics Act (“Ethics Act”), 65
P.S. C.S. § 1101 et seq., a supervisor for a second class township, who is
considered a “regular part-time employee” of the township, would be
permitted in his capacity as a part-time township employee to receive
vacation and holiday pay when such has not been approved by the township
board of auditors.”
b. Advice of Counsel Number 10-568 informed Whitmoyer as follows: “As a
supervisor for Tulpehocken Township, located in Berks County,
Pennsylvania, you are a public official subject to the provisions of the Public
Official and Employees Ethics Act, 65 Pa. C.S. § 1101 et seq. Section
1103(a) of the Ethics Act would permit you to receive vacation and holiday
pay in your capacity as a part-time Township employee subject to the
condition that such pay would be approved for you by the Township Board of
Auditors. To the extent vacation and holiday pay would not be approved for
you by the Township Board of Auditors, it would constitute a private
pecuniary benefit and could form the basis for a conflict of interest under
section 1103(a) of the Ethics Act.” (Emphasis added).
c. Pursuant to Advice of Counsel Number 10-586, Whitmoyer was advised that,
pursuant to Section 65606(a) of the Second Class Township Code,
regarding compensation of supervisors employed by the township, “[t]he
compensation of supervisors when employed as roadmasters, laborers,
secretary, treasurer, assistant secretary, assistant treasurer or in any
employe capacity not otherwise prohibited by this or any other act, shall be
determined by the board of auditors, at an hourly, daily, weekly, semi-
monthly or monthly basis, which shall be comparable to compensation paid
in the locality for similar services….” 53 P.S. § 65606(a).
Whitmoyer, 13-005
Page 11
1. Whitmoyer was further advised that “[t]he Commonwealth Court of
Pennsylvania has stated that the ‘compensation’ of a
supervisor/employee under the Second Class Township Code
‘includes more than mere wages; it also includes fringe benefits such
as insurance, pension, and medical plans and premiums.’ Synoski v
Hazle Township, 500 A.2d 1282, 1285 (Pa. Cmwlth. 1985).”
d. As a result of State Ethics Commission Advice of Counsel Number 10-568,
Whitmoyer was advised that his receipt of vacation and holiday pay, as a
part-time township employee, while serving as a Township Supervisor, would
be considered compensation that must be set/approved by the Township
Board of Auditors.
36. After receiving the Advice of Counsel from the State Ethics Commission, between
May 10, 2010, and December 31, 2011, Whitmoyer continued to receive payments
for healthcare without approval from the Township Board of Auditors.
37. Whitmoyer asserted to Commission investigators that he did not seek approval from
the Township’s Board of Auditors for the payments because he was eligible to
receive Township provided group health care coverage and that the amounts paid
to him were less than the actual cost of coverage, had he remained with the
Township provided plan.
38. Whitmoyer realized a private pecuniary benefit in his capacity as a Tulpehocken
Township Supervisor, as a result of being reimbursed by Tulpehocken Township for
insurance benefits that were provided to Whitmoyer through his spouse’s employer.
a. Whitmoyer opted not to participate in the Township provided group health
insurance plan.
b. Whitmoyer initiated the payments to himself by providing a copy of his
spouse’s pay statement and employer-provided benefit information to the
Township for the purpose of receiving payments from the Township for
insurance benefits.
c. Whitmoyer voted to approve payments that were made to him by the
Township representing a payment equivalent to his wife’s employer-provided
insurance benefits.
d. Whitmoyer, in his position as a Tulpehocken Township Supervisor, signed
the health insurance reimbursement checks to himself on behalf of the
Township.
THE FOLLOWING PARAGRAPHS PERTAIN TO ALLEGATIONS THAT WHITMOYER
FAILED TO FILE STATEMENTS OF FINANCIAL INTERESTS FOR THE 2010 AND 2011
CALENDAR YEARS.
39. Pursuant to the Statement of Financial Interests filing requirements for public
officials and public employees at Section 1104 of the State Ethics Act, Whitmoyer
was required to file accurate and complete Statements of Financial Interests by May
st
1 annually, in his capacity as a Tulpehocken Township Supervisor.
40. Whitmoyer failed to timely file Statements of Financial Interests for the 2010 and
2011 calendar years.
a. Whitmoyer purports to have filed the Statements of Financial Interests for
the 2010 and 2011 calendar years in a timely manner.
Whitmoyer, 13-005
Page 12
1. A … Statement of Financial Interests Compliance Review was
conducted by State Ethics Commission Investigators.
2. Pursuant to the aforementioned compliance review, it was determined
that calendar year 2010 and 2011 Statements of Financial Interests
were not on file for Whitmoyer.
3. No additional information has been provided, indicating that
Whitmoyer’s 2010 and 2011 calendar year Statements of Financial
Interests were timely filed.
b. Section 1104(d) of the State Ethics Act provides that no public official may
receive compensation from public funds unless he has filed a Statement of
Financial Interests.
c. Whitmoyer received compensation as a Tulpehocken Township Supervisor
during calendar years 2010 and 2011.
1. Whitmoyer received gross wages in the amount of $1,875.00
annually, as a Tulpehocken Township Supervisor, during the 2010
and 2011 calendar years.
d. Whitmoyer filed his Statements of Financial Interests for calendar years
2010 and 2011 with Tulpehocken Township on or about August 4, 2013.
III.DISCUSSION:
As a Township Supervisor for Tulpehocken Township (“Township”), Berks County,
from approximately 1994 through 2011, Respondent Ronald Whitmoyer, hereinafter also
referred to as “Respondent,” “Respondent Whitmoyer,” and “Whitmoyer,” was a public
officialsubject to the provisions of the Public Official and Employee Ethics Act (“Ethics
Act”), 65 Pa.C.S. § 1101 et seq.
The allegations are that Respondent Whitmoyer violated Sections 1103(a), 1104(a),
and 1104(d) of the Ethics Act: (1) when he used the authority of his public position for a
private pecuniary benefit to obtain payments from the Township in lieu of health insurance
benefits; (2) when he approved those payments issued to him; and (3) when he failed to
file Statements of Financial Interests (“SFIs”) for the 2010 and 2011 calendar years.
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
Whitmoyer, 13-005
Page 13
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 a Statement of Financial Interests as
required by the Ethics Act.
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 a Second Class Township governed by a three Member Board of
Supervisors. Whitmoyer served as a Township Supervisor from approximately 1994
through 2011. Throughout his term as a Township Supervisor, Whitmoyer was employed
by the Township as a part-time laborer, working approximately twenty to thirty hours per
week.
Pursuant to the Second Class Township Code, township supervisors may be
enrolled and participate in a fully or partially funded township group health insurance plan
regardless of whether they are employed by the township. 53 P.S. § 65606. There is no
requirement for auditor approval for such coverage, but the Second Class Township Code
does require the requesting supervisor to submit a letter requesting coverage to the board
of supervisors at a regularly scheduled township meeting. Id.
On January 4, 2000, the Township Board of Supervisors took action authorizing
Supervisors to participate in the Township provided group health insurance plan.
Whitmoyer participated in the Township funded group health insurance plan from 2000
until March of 2006. Around March of 2006, Whitmoyer decided to terminate his
participation in the Township provided group health insurance plan and elected to
participate in coverage that was available through his wife’s employer, the United States
Postal Service.
Between May 8, 2006, and January 9, 2012, Whitmoyer received a monthly
payment from the Township as reimbursement for the amount that was being deducted on
a bi-weekly basis from Whitmoyer’s wife’s paycheck for her health care insurance
Whitmoyer, 13-005
Page 14
coverage contribution. To secure payment, Whitmoyer would submit a copy of his wife’s
paystub to the Township each time his wife’s medical insurance withholding increased, as
justification for an increased payment from the Township.
The Township Board of Supervisors did not take any action at a Board of
Supervisors meeting to authorize Whitmoyer to receive a payment for health care
insurance premiums paid for by his wife in lieu of participating in the Township sponsored
health insurance plan. Whitmoyer purports that the Board of Supervisors approved
Whitmoyer’s receipt of a cash payment in lieu of participating in the Township funded
group health insurance plan during its March 13, 2006, executive session.
Within the same time period that Whitmoyer was receiving reimbursement payments
from the Township for the amount that was being deducted on a bi-weekly basis from his
wife’s paycheck for her health care insurance coverage contribution, the Township
Secretary/Treasurer also received health care insurance premium payments from the
Township in lieu of participation in the Township sponsored plan. There is no recorded
action by the Board of Supervisors authorizing such payments.
Although the Township Board of Supervisors took action on January 4, 2000, and
August 11, 2003, to provide monthly reimbursements to a full-time Township police officer
and Police Chief respectively for health insurance premiums paid for health coverage
through their spouses’ employers, the Second Class Township Code does not provide for
reimbursement to supervisors or any other township employee for privately funded or third-
party funded health insurance plans. The Second Class Township Code does not provide
for the receipt of additional compensation in lieu of accepting or enrolling in a township
funded group health insurance plan. The Township’s employee manual did not include
any language permitting employees eligible for Township paid health care insurance
coverage to receive any sort of reimbursement payment or other compensation in lieu of
participation in the Township provided insurance plan. The Township Board of Auditors
did not approve payment of premiums paid out-of-pocket for a non-Township sponsored
plan.
Paystubs submitted by Whitmoyer to the Township were used to justify the monthly
payments to Whitmoyer as follows: pay dates of 2006-2008 – no records available; pay
date of February 2009 - $110.72; pay date of February 2010 - $132.83; pay date of March
2011 - $148.70. The aforesaid amounts represent bi-weekly deductions, based on twenty-
six (26) pay periods per year.
Between May 8, 2006, and December 12, 2011, 67 health insurance reimbursement
payments were issued to Whitmoyer. During this time period, Whitmoyer voted to approve
health insurance reimbursement payments to himself on 62 occasions. Also during this
time period, Whitmoyer signed the health insurance reimbursement checks to himself as
an authorized Township signatory on 63 occasions.
Whitmoyer’s term of office as a Township Supervisor expired December 21, 2011.
Health insurance payments to Whitmoyer from the Township ceased as of January 9,
2012. Minutes from the Board of Supervisors January 9, 2012, meeting included the
following discussion regarding the last payment to be made to Whitmoyer:
Chairman John Kintzer made an announcement regarding
action taken resulting from an executive session held
December 12, 2011. Based on the opinion of our Solicitor and
Legal Advisor, proof was presented that shows the Township
owed Ron Whitmoyer reimbursement for one more month of
health insurance premium. As a result, Mr. Whitmoyer was
issued a check in the amount of $322.18 which brings the total
Whitmoyer, 13-005
Page 15
amount of reimbursements paid to Mr. Whitmoyer to
$14,392.41.
Fact Finding 32 a.
The advice of the solicitor/legal advisor was not as to the legality of the
“reimbursement” payment, but rather that since payments have been already initiated,
lawfully or unlawfully, the Township should make the final requested payment. The
Township Board of Supervisors did not receive any written advice from their Solicitor on
the matter.
Whitmoyer asserted to Commission investigators that his receipt of health care
premium payments was a cost savings for the Township. Whitmoyer claimed to have first
learned of the need for Board of Auditor approval regarding compensation issues as a
result of an Advice of Counsel (Whitmoyer, Advice 10-568) issued by the Chief Counsel of
this Commission on April 12, 2010, in relation to his receipt of vacation and holiday pay as
a part-time employee of the Township. Whitmoyer asserted to Commission investigators
that he did not seek approval from the Township’s Board of Auditors for the health
coverage reimbursement payments, because he was eligible to receive Township provided
group health care coverage and the amounts paid to him were less than the actual cost of
coverage had he remained with the Township provided plan.
The parties have stipulated that Whitmoyer realized a private pecuniary benefit in
his capacity as a Township Supervisor as a result of being reimbursed by the Township for
insurance benefits that were provided to Whitmoyer through his spouse’s employer.
Whitmoyer initiated the payments to himself by providing a copy of his spouse’s pay
statement and employer-provided benefit information to the Township for the purpose of
receiving payments from the Township for insurance benefits. Whitmoyer voted to
approve payments that were made to him by the Township as reimbursements of the
premium amounts deducted from his wife’s paychecks for employer-provided insurance
benefits. Whitmoyer, in his position as a Township Supervisor, signed the health
insurance reimbursement checks to himself on behalf of the Township.
As for Whitmoyer’s SFIs, the parties have stipulated that Whitmoyer failed to timely
file SFIs for the 2010 and 2011 calendar years. Section 1104(d) of the State Ethics Act
provides that no public official may receive compensation from public funds unless he has
filed an SFI. Whitmoyer received gross wages in the amount of $1,875.00 annually as a
Township Supervisor during the 2010 and 2011 calendar years.
Whitmoyer filed his SFIs for calendar years 2010 and 2011 with the Township on or
about August 4, 2013.
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 Whitmoyer’s
receipt of payment from the Township for the
costs of private health insurance benefits; and
when he subsequently participated in actions as
Whitmoyer, 13-005
Page 16
a Township Supervisor to approve payments
issued to him for private health care insurance
costs.
b. That a violation of Sections 1104(a) and 1104(d)
[of the Ethics Act] occurred when Whitmoyer
failed to file Statements of Financial Interests for
the 2010 and 2011 calendar years, during which
time, Whitmoyer served as a Tulpehocken
Township Supervisor and was compensated
from public funds.
4. Whitmoyer agrees to make payment in the amount of
$3,750.00 in settlement of this matter payable to Tulpehocken
Township and forwarded to the Pennsylvania State Ethics
Commission within thirty (30) days of the issuance of the final
adjudication in this matter.
5. Whitmoyer agrees to file complete and accurate Statements of
Financial Interests with Tulpehocken Township through the
Pennsylvania State Ethics Commission, for [the] 2010 and
2011 calendar years within thirty (30) days of the issuance of
the final adjudication in this matter.
6. Whitmoyer agrees to not accept any reimbursement,
compensation or other payment from Tulpehocken Township
representing a full or partial reimbursement of the amount paid
in settlement of this matter.
7. The Investigative Division will recommend that the State Ethics
Commission take no further action in this matter; and make no
specific recommendations to any law enforcement or other
authority to take action in this matter. Such, however, does
not prohibit the Commission from initiating appropriate
enforcement actions in the event of Respondent's failure to
comply with this agreement or the Commission's order or
cooperating with any other authority who may so choose to
review this matter further.
Consent Agreement, at 1-2.
In considering the Consent Agreement, we accept the recommendation of the
parties for a finding that a violation of Section 1103(a) of the Ethics Act occurred in relation
to Whitmoyer’s receipt of payment from the Township for the costs of private health
insurance benefits; and when he subsequently participated in actions as a Township
Supervisor to approve payments issued to him for private health care insurance costs.
But for being a Township Supervisor, Whitmoyer would not have been in a position
to initiate the aforesaid payments to himself by providing a copy of his spouse’s pay
statement and employer-provided benefit information to the Township for the purpose of
receiving payments from the Township for private insurance benefits.
Between May 8, 2006, and December 12, 2011, 67 health insurance reimbursement
payments were issued to Whitmoyer. During this time period, Whitmoyer voted to approve
health insurance reimbursement payments to himself on 62 occasions. Also during this
time period, Whitmoyer signed the health insurance reimbursement checks to himself as
an authorized Township signatory on 63 occasions.
Whitmoyer, 13-005
Page 17
Whitmoyer used the authority of his public position as a Township Supervisor when
he voted to approve payments that were made to him by the Township as reimbursements
of the premium amounts deducted from his wife’s paychecks for employer-provided
insurance benefits. Whitmoyer also used the authority of his position as a Township
Supervisor when he signed the health insurance reimbursement checks to himself on
behalf of the Township. The parties have stipulated that Whitmoyer realized a private
pecuniary benefit in his capacity as a Township Supervisor as a result of being reimbursed
by the Township for insurance benefits that were provided to Whitmoyer through his
spouse’s employer. Such reimbursement payments were not authorized in law.
We hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a),
occurred in relation to Whitmoyer’s receipt of payment from the Township for the costs of
private health insurance benefits; and when he subsequently participated in actions as a
Township Supervisor to approve payments issued to him for private health care insurance
costs.
We further accept the recommendation of the parties and we hold that a violation of
Sections 1104(a) and 1104(d) of the Ethics Act occurred when Whitmoyer failed to file
SFIs for the 2010 and 2011 calendar years, during which time Whitmoyer served as a
Township Supervisor and was compensated from public funds.
As part of the Consent Agreement, Whitmoyer has agreed to make payment in the
amount of $3,750.00 payable to Tulpehocken Township and forwarded to this Commission
within thirty (30) days of the issuance of the final adjudication in this matter. Whitmoyer
has also agreed to not accept any reimbursement, compensation or other payment from
the Township representing a full or partial reimbursement of the amount paid in settlement
of this matter. Whitmoyer has further agreed to file complete and accurate SFIs for
calendar years 2010 and 2011 with the Township, through this Commission, within thirty
(30) days of the issuance of the final adjudication in this matter.
We determine that the Consent Agreement submitted by the parties sets forth a
proper disposition for this case, based upon our review as reflected in the above analysis
and the totality of the facts and circumstances.
Accordingly, per the Consent Agreement of the parties, Whitmoyer is directed to
make payment in the amount of $3,750.00 payable to Tulpehocken Township and
th
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, Whitmoyer is further directed to not
accept any reimbursement, compensation or other payment from the Township
representing a full or partial reimbursement of the amount paid in settlement of this matter.
To the extent he has not already done so, Whitmoyer is directed to file complete
and accurate SFIs for calendar years 2010 and 2011 with the Township, through this
th
Commission, by no later than the thirtieth (30) day after the mailing date of this
adjudication and Order.
Compliance with the foregoing will result in the closing of this case with no further
action by this Commission. Noncompliance will result in the institution of an order
enforcement action.
IV.CONCLUSIONS OF LAW:
Whitmoyer, 13-005
Page 18
1. As a Township Supervisor for Tulpehocken Township (“Township”), Berks County,
from approximately 1994 through 2011, Respondent Ronald Whitmoyer
(“Whitmoyer”) was a public officialsubject to the provisions of the Public Official
and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq.
2. Whitmoyer violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in
relation to his receipt of payment from the Township for the costs of private health
insurance benefits; and when he subsequently participated in actions as a
Township Supervisor to approve payments issued to him for private health care
insurance costs.
3. A violation of Sections 1104(a) and 1104(d) of the Ethics Act occurred when
Whitmoyer failed to file Statements of Financial Interests for the 2010 and 2011
calendar years, during which time Whitmoyer served as a Township Supervisor and
was compensated from public funds.
In Re: Ronald Whitmoyer, : File Docket: 13-005
Respondent : Date Decided: 2/6/14
: Date Mailed: 2/18/14
ORDER NO. 1630
1. As a Township Supervisor for Tulpehocken Township (“Township”), Berks County,
Ronald Whitmoyer (“Whitmoyer”) violated Section 1103(a) of the Public Official and
Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), in relation to his receipt of
payment from the Township for the costs of private health insurance benefits; and
when he subsequently participated in actions as a Township Supervisor to approve
payments issued to him for private health care insurance costs.
2. A violation of Sections 1104(a) and 1104(d) of the Ethics Act occurred when
Whitmoyer failed to file Statements of Financial Interests for the 2010 and 2011
calendar years, during which time Whitmoyer served as a Township Supervisor and
was compensated from public funds.
3. Per the Consent Agreement of the parties, Whitmoyer is directed to make payment
in the amount of $3,750.00 payable to Tulpehocken Township and forwarded to the
th
Pennsylvania State Ethics Commission by no later than the thirtieth (30) day after
the mailing date of this Order.
4. Per the Consent Agreement of the parties, Whitmoyer is further directed to not
accept any reimbursement, compensation or other payment from the Township
representing a full or partial reimbursement of the amount paid in settlement of this
matter.
5. To the extent he has not already done so, Whitmoyer is directed to file complete
and accurate Statements of Financial Interests for calendar years 2010 and 2011
with the Township, through the Pennsylvania State Ethics Commission, by no later
th
than the thirtieth (30) day after the mailing date of this Order.
6. Compliance with Paragraphs 3, 4 and 5 of this Order will result in the closing of this
case with no further action by this Commission.
a. Non-compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
___________________________
John J. Bolger, Chair