HomeMy WebLinkAbout1652 Petro
In Re: John W. Petro, : File Docket: 12-035
Respondent : X-ref: Order No. 1652
: Date Decided: 1/27/15
: Date Mailed: 2/10/15
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan
Roger Nick
Kathryn Streeter Lewis
Maria Feeley
Melanie DePalma
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 John Petro, a public official/public employee in his capacity as a Member of
White Oak Borough Council and as Manager of White Oak Borough, Allegheny County,
violated Section 1103(a) and Section 1103(f) of the State Ethics Act (Act 93 of 1998) when
he used the authority of his public position for the private pecuniary benefit of himself
and/or a business with which he and/or a member of his immediate family is associated
when he participated in discussions and actions of Council to approve funding for the
White Oak Emergency Management Services (“WOEMS”); when he authorized payments
to WOEMS; when he utilized Borough employees and equipment for the benefit of
WOEMS; when as a Member and President of White Oak Borough Council he used his
position to amend a Borough ordinance to enable him to be qualified for the position of
Borough Manager and then participated in discussions of Council resulting in his
appointment to Borough Manager; and when as Borough Manager, he negotiated the sale
of a WOEMS owned printer/copier in excess of $500.00 to the Borough absent an open
and public process.
II.FINDINGS:
1. John Petro served as a Member of the White Oak Borough (“Borough”) Council
from approximately January 1986 through December 1993 and \[from\] January 2006
until December 2009.
Petro, 12-035
Page 2
a. Petro served as the Finance Committee Chairman from approximately 1986
to 1993.
b. Petro served as the Council President from January 3, 2006, until December
21, 2009.
1. Petro resigned from Council effective December 21, 2009.
2. The Borough is governed by a seven (7) Member Council (hereafter, “Council”) and
Mayor.
a. Council generally holds regular monthly meetings at the Borough Municipal
Building on the third Thursday of each month.
1. Council generally holds workshop meetings the Wednesday prior to
the regular monthly meeting.
b. Regular attendees at monthly meetings and workshop meetings include
Council, the Solicitor, Secretary/Treasurer, and Mayor.
c. Special meetings, including executive sessions, are held when necessary.
1. Executive sessions are attended by Council and the Solicitor and are
not open to the public.
3. Council Members are appointed by the Council President to serve on sub-
committees for the following: Finance; Health, Environment and Cable; Parks and
Recreation; Planning and Zoning; Public Safety; and Public Works.
a. The sub-committees meet as needed.
1. Petro did not serve as an appointed member of any Borough sub-
committees while serving as the Council President.
2. Council President appoints and has oversight of all sub-committees.
4. Daily operation of Borough needs is delegated to full-time Borough employees.
a. The Borough employs an office staff, Police Department, and Public Works
Department.
b. From approximately December 22, 2009, to February 13, 2013, the office
staff consisted of the Borough Manager, Secretary/Treasurer, Finance Clerk,
and Office Clerk.
c. From approximately April 2004 through December 21, 2009, the Borough
Manager position was vacant.
5. Secretary/Treasurer Nancy Greenland (“Greenland”) is responsible for the
generation of the official Borough meeting minutes.
a. Greenland takes notes to assist her in generation of the minutes.
1. A motion/action list is utilized by Greenland to track the official
actions of the meetings.
2. Council meetings are not audio recorded.
Petro, 12-035
Page 3
b. The drafted minutes are emailed to each Council Member for review prior to
approval for accuracy at each subsequent meeting of Council.
6. Voting at Council meetings may occur via a roll call vote or in group aye/nay
fashion, depending on the issue at hand.
a. A roll call vote is utilized as needed and/or for personnel issues.
b. A group aye/nay vote is utilized for the approval of minutes and monthly
expenditures.
c. All objections and abstentions are to be noted within the minutes regardless
of the type of vote taken.
d. Petro asserts that the Council President chairs the meetings and votes only
if a tie vote \[occurs\] or a secret ballot is utilized.
7. As a way of keeping Council informed, the Borough Police deliver an informational
news packet to all Council Members every Friday.
a. The packet is compiled by Greenland with the assistance of the Borough’s
administrative staff.
b. The packet generally consists of Borough related correspondence and news.
8. In addition to weekly informational packets, Council Members receive a meeting
packet prior to the workshop and regular meetings.
a. The meeting packet(s) is compiled by the Borough’s administrative staff and
includes an agenda, the previous month’s minutes, various financial reports,
bill listings, and various correspondence.
1. The meeting agenda is generated by the Borough Manager (when
such position is not vacant) and/or Secretary/Treasurer.
2. Council Members have the ability to add items to the agenda if
needed.
9. Council Members receive various reports within the meeting packet, including but
not limited to reports from the Police Chief, Solicitor, Public Works Department,
Animal Control Officer, etc.
10. Jan Gerber (“Gerber”), White Oak Borough Financial Administrator, is responsible
for receiving and paying Borough invoices.
a. Gerber prepares Borough checks for the appropriate signatories upon
receipt of an invoice.
b. Invoices are not reviewed by Council on a regular basis, but are reviewed by
the Finance Committee Chairperson.
11. Council approves acceptance of the check register/accounts payable report at each
regular meeting.
a. The report is non-descriptive and does not list each specific check, check
date, amount, and payee.
Petro, 12-035
Page 4
b. There is a complete report sent to the Finance Committee Chairperson on a
weekly basis.
12. Signature authority over Borough accounts is held by the Borough
Secretary/Treasurer, Borough Manager (when such position is not vacant), Council
President, Finance Committee Chairman, and Council Member Ronald Massung.
a. Borough checks require the signatures of any combination of two authorized
signatories.
13. For public notices, the Borough utilizes The McKeesport Daily News for
advertisements/postings.
a. Borough advertisements are submitted for publication by the
Secretary/Treasurer.
b. Advertisements are, at times, reviewed by the Manager (when such position
is not vacant) prior to being submitted.
14. A general process exists at the Borough in relation to the establishment of Borough
ordinances/resolutions, as Council normally discusses/reviews ordinances/
resolutions at workshop meetings prior to approval at a regular meeting.
a. The Solicitor is informed by Council and/or the President of Council to draft
an ordinance/resolution.
b. The Solicitor typically presents ordinances and resolutions prior to Council
taking official action for approval.
c. Ordinances and/or resolutions presented are noted on the Solicitor’s Report.
THE FOLLOWING FINDINGS RELATE TO PETRO UTILIZING HIS POSITION AS A
MEMBER OF WHITE OAK BOROUGH COUNCIL TO AMEND THE BOROUGH
MANAGER ORDINANCE IN ORDER TO EFFECTUATE HIS EMPLOYMENT AS
BOROUGH MANAGER.
15. The Borough’s Codified Ordinance, Article 123-Manager (hereafter, “Article”)
establishes the Borough Manager position.
a. The Article was created via passage of Borough Ordinance No. 2235
(hereafter, “Ordinance”), enacted September 17, 1984.
b. The Article sets forth the purpose, intent, manner of appointment, terms,
compensation, qualifications/residence, and duties and powers of the
position.
c. Article Section 123.05 sets forth the qualifications for the Borough Manager
position and prohibits the appointment of a Council Member or Mayor as the
Borough Manager during the term \[for which\] he/she has been elected or
within one year after the expiration of his/her term in office, as listed below:
The Borough Manager shall be chosen solely on the
basis of administrative qualifications with special
emphasis to executive and administrative training
and/or experience in municipal or other governmental
Neither any member of Council or the
management.
Petro, 12-035
Page 5
Mayor shall receive appointment as Borough
Manager during the term for which he or she has
been elected, nor within one year after the
expiration of such term.
(emphasis added).
d. Article Section 123.06 lists the duties and responsibilities of the Borough
Manager position, including but not limited to the following:
1. Administer and carry out all policies, programs, and directives set
forth by Council;
2. Supervise, direct and conduct the administration of the Police
Department, Public Works Department, and office personnel;
3. Prepare and submit the proposed budget to Council;
4. Administer the approved annual budget; and
5. Ensure the timely payment of all bills, collections of monies, and/or
revenue.
e. Article Section 123.12 sets forth that the Borough Secretary shall assume
the duties/responsibilities of the Borough Manager position in the event of a
vacancy.
16. The Borough employed a Borough Manager from 1984 through 2004 to oversee
and manage Borough operations.
a. Per Borough Ordinance No. 2235, the Borough Manager has supervisory
responsibility over remaining Borough employees.
b. The Borough Manager position is a direct report to Borough Council.
1. Council as a whole served as the Borough Manager’s supervisor.
17. The Borough’s past hiring practice for the Borough Manager position included the
following steps:
a. Advertisement of the position in the Borough circular of record;
b. Review by Council Members of resumes received, to select interviewees;
c. Interview by Council Members of the selected candidates;
d. Discussion and ultimate selection by Council of the candidate to appoint;
e. Official appointment by Council of the selected candidate during a regular
meeting of Council.
18. Bruce Jamison served as the White Oak Borough Manager from approximately July
1999 until April 2004.
a. Jamison met the advertised qualifications for the position which included a
college degree and at least five (5) years of municipal government
experience.
Petro, 12-035
Page 6
b. Jamison was interviewed by a three (3) Member Council panel for the
position.
c. Jamison was officially informed by the Solicitor via correspondence that
Council selected him for appointment to the position.
d. Jamison’s employment contract was negotiated between Jamison and the
Solicitor, along with input from Council.
19. After Jamison resigned from the position, Secretary/Treasurer Nancy Greenland
performed the duties/responsibilities of the Borough Manager position in
accordance with Article 123.12-Borough Manager of the Borough’s Codified
Ordinance.
a. Greenland preformed the duties and responsibilities of the Borough Manager
from April 2004 through December 2009.
1. Greenland did not receive an increased wage upon undertaking the
duties and responsibilities of the Borough Manager.
20. Council did not pursue hiring a Borough Manager following Jamison’s resignation.
a. Council did not pursue hiring a Borough Manager for various reasons,
including financial restraints and the consensus that Greenland could
perform the duties/responsibilities of the Borough Manager.
21. On or about January 12, 2009, Petro, as Council President, registered himself to
attend the 2009 Pennsylvania Employee Labor Relations Association Seminar
(“PELRAS”) conference.
a. The PELRAS conference is generally attended by local government officials
and/or employees in supervisory roles to gain information related to labor
issues (i.e. collective bargaining, COBRA, ADA, and employee/labor policy).
b. The Borough reimbursed Petro for registration, lodging, meals, and fuel
expenses incurred at the PELRAS conference totaling $673.09.
1. The Borough normally reimburses \[Borough\] officials/employees for
fees incurred in attending local government training.
22. At a Council workshop meeting on February 11, 2009, Petro announced his
intention to attend the seminar at State College regarding Government Employee
thth
Relations, from March 25 to 27, 2009 (PELRAS conference), for which he already
registered.
a. Council did not take official action in approving Petro’s attendance.
b. Council Members do not regularly attend Government Employee Relations
seminars on an annual basis.
c. Council did not object to Petro’s announcement/intent to attend the
conference.
23. During 2009, Petro increased the time he spent at the Borough office and his
involvement in Borough related business.
Petro, 12-035
Page 7
a. In early 2009, Petro assumed some/part of the duties of Borough Manager
by overseeing the day-to-day operations of the Borough and personnel
matters.
1. Petro, while a Member of Council, undertook the role of the Borough
Manager without a directive by Council to do so.
2. Council did not formally acknowledge/approve or disapprove of Petro
performing Borough Manager-type tasks.
3. Petro did not claim an hourly wage or receive compensation from the
Borough for the period that he performed the duties previously
assigned to the Borough Manager.
b. Petro, while a Member of Council, undertook some of the responsibilities
normally handled by the Borough Manager \[at\] about the time he applied for
and/or was receiving unemployment compensation.
c. Petro weekly frequented the Borough building as a way of being updated
concerning Borough related matters.
24. By the summer of 2009, Petro, as the President of Council, initiated discussions
within executive sessions of Council regarding the appointment of a Borough
Manager.
a. Petro informed Council Members that a Borough Manager was needed to
manage the day-to-day operations of the Borough and to apply for additional
grant funding.
b. Council was ultimately supportive of the concept of hiring a Borough
Manager.
25. Petro expressed his intent to become the Borough Manager in the summer of 2009
to Council Member Ron Massung, while the two of them had lunch at the King’s
Family Restaurant, located in North Versailles, Pennsylvania.
a. Petro informed Massung that he could lower insurance costs, obtain grants,
and help run the Borough more efficiently if appointed Borough Manager.
b. Petro approached Massung for his support in appointing Petro as Borough
Manager.
1. Petro advised Massung that he (Petro) had the ability to change the
ordinance enabling Petro to be appointed Manager.
c. Petro does not deny that a meeting between him and Massung occurred;
however, Petro asserts that Massung first approached him (Petro.)
1. Petro purports that he (Petro) did not advise Massung that he (Petro)
had the ability to change the ordinance enabling him (Petro) to be
appointed Manager. Instead, Petro states that Mr. Babyak first asked
Mr. Leckman if he (Petro) could do both jobs. Mr. Leckman answered
in the negative and Mr. Leckman stated to Mr. Babyak that the
ordinance could be changed to remove the 1 year waiting period
since Council put it into the ordinance, and there was nothing in the
Borough Code to prevent such an action.
Petro, 12-035
Page 8
2. Mr. Leckman is deceased and therefore his (Leckman’s)
statements/beliefs cannot be verified.
3. The Investigative Division possesses no evidence to support Mr.
Petro’s assertions as to the conversation between Mr. Leckman and
Mr. Babyak – except for Petro’s assertion.
26. By the fall of 2009, Petro, as the President of Council, had informed Council
Members and Borough representatives on numerous occasions of his interest in
becoming the Borough Manager.
a. Petro did not recommend any other candidates for the position or express a
need to advertise the position vacancy.
27. Council Members were supportive of Petro’s appointment as the Borough Manager,
once Petro had expressed his interest in the position.
a. Council did not conceptualize the need for filling the position of Borough
Manager until Petro initiated the idea with Council.
b. Council had only entertained the possibility of appointing a Borough
Manager after Petro expressed interest in the position.
c. Council did not discuss or consider any candidate(s) prior to Petro
expressing interest in the position.
28. At or about the time he expressed his intent to seek appointment to the Borough
Manager position, Petro, with the consent of Council, inquired of Solicitor Terry
Leckman as to the possibility of holding a dual position as Council Member and
Borough Manager.
a. Leckman informed Petro that the Borough Code, specifically Section 4601 of
the Borough Code (53 P.S. § 46104) prohibits an elected borough official of
a borough with a population of 3,000 or more from serving as an employee
of that borough.
1. White Oak Borough’s population exceeds 3,000.
29. In approximately October 2009, Petro informed Secretary/Treasurer Greenland of
his intent to seek the position of Borough Manager.
a. Petro informed Greenland of his interest at the Borough building on a day he
was performing Borough Manager duties.
b. Petro informed Greenland that the Borough Manager Ordinance was to be
amended in order to facilitate his appointment as the Borough Manager.
ndrd
30. On or about November 2 and 3 of 2009, Petro, in his capacity as the President of
Council, and with the consent of Council, directed Solicitor Terry Leckman to
research and draft an amended Borough Manager Ordinance with the expectation
the amended Ordinance would facilitate his employment as the Borough Manager.
a. Petro directed Leckman to amend the qualifications of the Borough Manager
Ordinance by eliminating the following section:
1. “Neither any member of Council or the Mayor shall receive
appointment as Borough Manager during the term for which he or she
Petro, 12-035
Page 9
has been elected, nor within one year after the expiration of such
term.”
b. Petro directed Leckman to draft the amended Borough Manager Ordinance
*
without having initially discussed the matter with Council.
c. Leckman issued billing statement #WOB235, dated November 16, 2009, to
the Borough requesting payment in the amount of $195.00 (2.6 hours) for
performing legal services relating to conferences with Borough officials and
for research \[and\] preparation of the amended Borough Manager Ordinance.
*
\[Cf., Stipulated Finding 30.\]
31. The Ordinance required an amendment in order to enable Petro to serve as
Borough Manager immediately; otherwise, Petro would have had to wait one (1)
year before being eligible to serve as Borough Manager.
32. The amended Borough Manager Ordinance (Ordinance No. 3559) was advertised
in the November 13, 2009, edition of The Daily News.
a. Council did not vote to approve the advertisement of Ordinance No. 3559.
b. The notice was submitted by Greenland at Leckman’s direction.
33. The PA Association of Boroughs (hereafter, “PSAB”) offers online municipal training
courses (hereafter, “Webinars”) that can be accessed through a telephone and
internet connection.
a. Petro had been a long-time supporter for Borough officials and employees to
obtain municipal government related training.
34. On or about November 10, 2009, Petro directed Greenland to register him in a
thth
Borough Secretaries Training Webinar to be held on November 12 and 19,
without Council’s knowledge or approval.
a. Borough Secretaries training is a PSAB recommended Webinar for any
municipal manager and/or secretary.
1. The Borough made payment to PSAB for the registration costs via
check #102206, dated December 18, 2009.
b. Petro had received local government training throughout his tenure on
Council but none specifically related to the general duties/responsibilities of
a Borough Secretary/Manager.
1. Petro had not received any specific Borough Manager/Secretary
training prior to enrollment in the PSAB Borough Secretaries Webinar
on November 10, 2009.
35. Greenland enrolled Petro as directed in the Borough Secretaries Training Webinars
thth
that were held on November 12 and 19.
a. Petro did not offer to any other Borough Council Members or employees,
\[including the Borough Secretary/Treasurer, the opportunity\] to participate in
the Webinar.
Petro, 12-035
Page 10
b. Petro asserts that he always offered the opportunity for web based training
to all elected officials, staff, and municipal affiliates.
36. Leckman presented the amended Borough Manager Ordinance to Council at the
thth
Council workshop meetings on November 11 and 16, 2009.
a. Council Members reviewed the Ordinance with the expectation the amended
Ordinance would enable Petro’s immediate appointment as the Borough
Manager.
37. Petro drafted his Borough Manager Employment Agreement (hereafter,
“Agreement”) and provided the Agreement to Leckman for review on or about
November 11, 2009, in anticipation of his pending appointment as the Borough
Manager.
a. Borough employment agreements are normally drafted by the Solicitor
and/or Borough Manager, along with input from Council.
b. Petro drafted the Agreement prior to the Council having been presented the
amended Borough Manager Ordinance for review or adoption.
c. The Agreement was drafted in the same outline as \[for\] past non-union
managerial Borough employees (i.e. Borough Manager, Police Chief, and
Public Works Manager).
38. The Agreement created by Petro set forth Petro’s annual salary, inclusion in the
Borough’s health benefits and errors and omissions policy, leave time, and
severance package.
a. The Agreement’s inclusion of the Borough’s health benefits and errors and
omissions policy and leave time allotment were similar to the benefits and
leave time offered in past employment agreements to managerial Borough
employees (i.e. Manager, Police Chief, and Public Works Manager).
b. The Agreement’s severance package called for Petro’s receipt of six (6)
months’ salary to be paid on regular scheduled pay dates in the event
Council, for any reason other than conviction of a crime, or other just cause,
terminated Petro’s employment as Borough Manager.
1. \[Severance packets in\] prior employment agreements for other
contracted Borough managerial employee(s) … did not exceed three
(3) months.
39. Council reviewed Petro’s proposed Agreement during an executive session at the
November 11, 2009, workshop meeting.
a. Petro had provided the Agreement to Leckman for review
contemporaneously to him providing the Agreement to Council.
b. Petro was present and available to discuss the Agreement throughout
Council’s review.
40. On November 16, 2009, Council held a workshop meeting that was immediately
followed by the regular meeting.
a. Both meetings were attended by Council Members Petro, David Pasternak,
Ed Babyak, Charles Davis, and Ronald Massung.
Petro, 12-035
Page 11
1. Council Members Kenneth Robb and George Dillinger were absent.
b. The action to amend the Borough Manager Ordinance (Ordinance No. 3559)
was listed on the regular meeting agenda.
1. Petro and/or Leckman directed Secretary/Treasurer Greenland to
place Ordinance No. 3559 on the agenda.
41. At the November 16, 2009, regular meeting, Leckman presented the amended
Borough Manager Ordinance No. 3359 \[3559\] to Council for its approval.
a. Leckman read out loud the short title of the Ordinance to Council and
attendees.
b. Leckman informed Council that the Borough Manager Ordinance needed to
be amended in order for Petro to be appointed to the position.
42. Immediately following Leckman presenting Ordinance No. 3559, Councilman Davis
motioned, seconded by Councilman Babyak, for the adoption of Ordinance No.
3559.
a. The November 16, 2009, regular meeting minutes read as follow:
O-3359 Amendment to Borough Manager’s Regulations
A motion was made by Mr. Davis, seconded by Mr. Babyak, to adopt
Ordinance No. 3559 as read by Mr. Leckman.
Mr. Petro declared Ordinance No. 3559 officially adopted.
Mr. Leckman read Resolution No. 3560 by short title for adoption.
1. Meeting Minutes incorrectly identify the Ordinance as O-3359.
b. Petro was present for the November 16, 2009, regular meeting.
1. Minutes of the meeting do not document any “nay” votes or
abstentions regarding Ordinance No. 3559.
2. November 16, 2009, regular meeting minutes do not reflect a roll call
vote.
c. Immediately following the motion and seconding to adopt Ordinance No.
3559, Petro, as President of Council, announced that Ordinance No. 3559
had been adopted.
43. Ordinance No. 3559 was signed November 16, 2009, by Pasternak and Mayor Ina
Marton, and attested by Greenland.
a. Standard procedure is for Borough Ordinances to be signed by the President
of Council and Mayor upon approval.
1. The exceptions would be when those officials are unavailable or have
a conflict.
b. Pasternak signed the Ordinance as the Vice President of Council although
Petro was present and available for signature as Council President.
Petro, 12-035
Page 12
44. Petro did not sign the Ordinance as the President of Council.
a. Ordinance No. 3559 was amended and approved in order to facilitate his
(Petro’s) appointment as the Borough Manager.
b. Without the amendment to the Ordinance, Petro was ineligible to be
considered for the Manager position for one year after leaving office.
45. At the November 16, 2009, regular meeting, a Borough resident questioned Council
about the following in relation to the potential hiring of a Borough Manager:
a. Why the Borough Manager Ordinance was being amended;
b. If the budget allocated funds for the position;
c. If a Member of Council would be resigning to take the position; and
d. If the position was advertised.
46. Petro addressed the resident’s questions answering that the amended Ordinance
was to secure the services of a Borough Manager and that advertising the position
was at the discretion of Council.
a. The Borough has no legal mandate (either within the Borough Code or
Borough Ordinance) that required the Borough Manager position to be
advertised.
1. Advertisements for the position had been a past practice.
b. Petro did not answer any of the other questions posed by the resident.
47. Council Vice President David Pasternak addressed the resident’s questions stating
that Council felt the position was necessary, that a Borough Manager could apply
for more grant\[s\], and that funds for the position had been allocated in the 2010
budget.
a. The initial draft of the 2010 budget did not allocate funds to the Borough
Manager position.
b. The allocation for the Borough Manager position was inserted in the budget
only five (5) days earlier by Greenland at Council’s direction prior to any
appointment to the position or approval of employment agreement.
1. The 2010 budget was first presented to Council at the November 11,
2009, workshop meeting.
2. Budget discussions continued at Council meetings in November and
December 2009.
3. Petro participated in discussions leading to the decision to fund the
Manager position.
48. Petro, as President of Council, was present at and participated in Council
discussion relating to the 2010 budget.
Petro, 12-035
Page 13
a. Petro recommended to Council his starting Borough Manager salary of
$65,000/year.
b. Council agreed to Petro’s recommended salary prior to approval of the 2010
budget.
49. Immediately following the December 21, 2009, workshop meeting, the Borough’s
regular public meeting was held.
a. The December 21, 2009, regular meeting was attended by Council Members
Petro, Babyak, Davis, Dillinger, Massung, Pasternak, and Robb.
50. The meeting agenda for the December 21, 2009, regular meeting did not identify
the appointment of a Borough Manager as an item scheduled for consideration.
a. The motions to accept Petro’s resignation as a Council Member and to
authorize the appointment of Petro as Borough Manager were listed on the
meeting’s motion/action list.
1. Greenland maintains meeting notes, including a motion/action list, to
assist in the generation of the minutes.
51. At the December 21, 2009, regular meeting, a motion was made by Councilman
Robb, seconded by Councilman Babyak to approve the workshop minutes for
thth
November 11 and 16 of 2009; and the regular meeting minutes of November 16,
2009.
a. No objections or corrections to the minutes were made prior to the vote.
b. The motions to approve the minutes carried unanimously.
52. At the December 21, 2009, meeting, Leckman presented Resolution No. 3561 2010
Budget Appropriations (Expenditures/Revenues), which included the allocation for
the Borough Manager position.
a. The 2010 budget allocation for the Borough Manager position was
determined and agreed upon by Council prior to the December 21, 2009,
regular meeting.
53. After Leckman’s presentation of Resolution No. 3561, a motion was made by
Councilman Dillinger, seconded by Councilman Pasternak, to adopt Resolution No.
3561.
a. The December 21, 2009 regular meeting minutes read as follow:
R-3561 2010 Budget Appropriations (Revenues/Expenditures)
A motion was made by Mr. Dillinger, seconded by Mr.
Pasternak, to adopt Resolution No. 3561 as read by Mr.
Leckman.
Mr. Petro declared Resolution No. 3561 officially
adopted.
b. Petro was present for the December 21, 2009, regular meeting.
Petro, 12-035
Page 14
1. Minutes of the meeting do not document any “nay” votes or
abstentions regarding Ordinance No. 3561.
2. The December 21, 2009, regular meeting minutes do not reflect a roll
call vote.
c. Immediately following the motion and seconding to adopt Ordinance No.
3561, Petro, as President of Council, announced that Ordinance No. 3561
had been adopted.
54. Petro’s resignation from Council was announced at the December 21, 2009, regular
meeting after the adoption of Resolution No. 3561.
a. Pasternak announced the receipt of Petro’s letter of resignation from
Council.
b. Pasternak motioned, seconded by Babyak, to accept Petro’s letter of
resignation.
c. The motion to accept Petro’s letter of resignation from Council carried
unanimously.
55. Petro’s resignation letter, dated December 21, 2009, reports his resignation from
Council and acceptance of the position of Borough Manager. Petro’s resignation
from Council was required to occur prior to his acceptance of the Borough Manager
position, in order to comply with provisions contained within the Pennsylvania
Borough Code.
a. Petro’s letter of resignation stated in part:
“I am honored to accept the position of Borough
Manager offered December 21, 2009, with duties to
begin December 22, 2009. Pursuant to accepting
this position and to comply with requirements and
limitations set forth in the Borough Code, I hereby
tender my resignation as President of Council and
Councilman for the Borough of White Oak effective
December 21, 2009.”
b. Petro’s letter of resignation documented his acceptance of the Borough
Manager position prior to any public affirmation of any such offer to Petro.
56. Immediately following Council’s acceptance of Petro’s resignation letter, Robb
motioned, seconded by Babyak, to appoint Petro to the Borough Manager position,
effective 8:00 a.m. on December 22, 2009.
a. The motion carried via unanimous vote.
b. Petro had effectively resigned from Council at the time Council voted to
appoint him as the Borough Manager.
57. Prior to Petro expressing his interest in seeking appointment as the Borough
Manager, Council did not discuss revoking the Borough Manager
duties/responsibilities from Greenland.
Petro, 12-035
Page 15
a. Greenland had not been disciplined by Council for any work performance
related issues at the time Petro expressed his interest in the Borough
Manager position.
58. Petro’s Agreement was signed by Pasternak, Greenland, and Petro, and witnessed
by resident Carrie Noll, immediately following the conclusion of the December 21,
2009, meeting.
59. The Agreement documented Petro’s effective start date of December 22, 2009.
a. Petro was not compensated for the time period of December 22, 2009, to
December 31, 2009, although he was serving during that time as the
Borough Manager.
1. The conditions of the Agreement stated that Petro will work from
December 22, 2009, to December 31, 2009, without
salary/compensation.
b. Petro did not begin to receive compensation until January 1, 2010, in
accordance with the Agreement.
1. The 2009 budget did not provide any funds for the Borough Manager
position.
60. From at least June to December 2009, Petro, as the President of Council, was
regularly present at Council workshop and regular meeting executive sessions
during which time Council discussed the Borough Manager position, including
Petro’s appointment, salary, and start date.
a. Petro initiated Council action and participated in subsequent Council
discussions relating to the appointment of a Borough Manager.
b. Petro advocated being appointed Borough Manager at a time Council had no
intent to fill the vacancy \[and there were no\] other candidates being
considered.
c. Petro repeatedly expressed to Council his desire to fill the position and his
interest in his appointment to the position after initiating the discussions.
d. Petro influenced Council Members by describing the specific duties he would
perform as the Borough Manager, once appointed.
e. Petro recommended his initial salary to Council, and drafted his employment
Agreement prior to Council taking any formal action to appoint Petro to the
position.
1. Petro participated in Council action to set the Manager salary.
61. Petro received a total of $206,129.68 between January 10, 2010, and February 17,
2013, representing compensation for his service as the Borough Manager pursuant
to the employment Agreement.
62. Petro maintained personal financial accounts at Huntington National Bank (account.
no. \[redacted\]) and S&T Bank (account no. \[redacted\]) from at least January 2010
through February 2013.
Petro, 12-035
Page 16
a. Petro received his Borough paycheck via direct deposit into his Huntington
National Bank account for the time period of January 2010 to September
2010.
b. From September 2010 to at least February 2013, Petro received his Borough
paychecks via a 50/50 direct deposit split between his Huntington National
Bank and S&T Bank accounts.
63. The employment Agreement sets forth Petro’s eligibility for inclusion in the health,
medical, and vision benefits offered to Borough employees.
a. Prior to Petro’s hiring as the Borough Manager, the Borough medical plan
was offered through Highmark.
b. Petro and his spouse, Nancy Petro, had been enrolled in a UPMC health
plan prior to enrolling in the Borough’s group health plan.
c. The Borough was in the process of switching health care providers from
Highmark to UPMC at or about the time Petro was appointed Borough
Manager.
1. Petro asserts that the UPMC group health plan was $130,000.00 less
than the Borough’s group health plan offered through Highmark.
64. Petro’s employment as the Borough Manager resulted in the Borough issuing
checks totaling $41,655.66, covering the time period of April 2010 to March 2013,
for the inclusion of Petro and Nancy Petro in the Borough’s group health, dental,
and vision plans.
a. Petro’s enrollment in the Borough’s group health, dental, and vision plans
was a result of his employment as the Borough Manager and in accordance
with the employment Agreement Petro prepared and influenced Council to
approve.
b. Council Members who are not employed by the Borough are not eligible for
enrollment in the Borough’s group health, dental, and vision plans.
65. At the February 13, 2013, regular meeting, a motion was made by Dillinger,
seconded by Noll, during the “New Business” section of the meeting to eliminate
allocations for the Borough Manager position from the current budget and to
terminate Petro from holding the position, effective immediately.
a. The motion carried via 4-2 vote as follows:
b. Petro, as the Borough Manager, was not present at the meeting.
66. Petro’s Agreement included a severance package of six months’ salary due \[in
accordance with\] the regular Borough pay schedule.
a. Per Borough Ordinance No. 145.06, non-contracted employees are eligible
to receive no more than three (3) months’ severance pay.
1. The positions of Borough Manager, Chief of Police and Public Works
Manager were historically contract employees.
b. Historically, with the exception of Petro, all contract employees are granted
three (3) months’ severance pay.
Petro, 12-035
Page 17
67. Petro has received a total of twelve (12) bi-weekly severance payments totaling
$31,518.72, in accordance with his employment Agreement, as of pay period
ending March 3, 2013, as a result of Council’s termination of the Borough Manager
position at the February 18, 2013, regular meeting, as listed in the chart below:
Pay Period Ending Check Date Check No. Amount
03-03-13 03-07-13 180098 $2,626.56
03-20-13 03-21-13 180125 $2,626.56
03-31-13 04-04-13 180161 $2,626.56
04-16-13 04-18-13 180189 $2,626.56
04-28-13 05-02-13 180225 $2,626.56
05-12-13 05-16-13 180253 $2,626.56
05-26-13 05-30-13 180290 $2,626.56
06-09-13 06-13-13 180318 $2,626.56
06-23-13 06-27-13 180367 $2,626.56
07-07-13 07-11-13 180421 $2,626.56
07-21-13 07-23-13 180466 $2,626.56
08-04-13 08-06-13 180520 $2,626.56
Total $31,518.72
a. Petro received bi-weekly severance payments until the pay period ending
August 17, 2013.
68. Petro’s enrollment in the Borough’s group health benefits ceased as of March 2013,
as a result of his termination from the Borough Manager position.
69. Petro utilized the authority of his office as a Member and President of White Oak
Borough Council to realize a pecuniary benefit when, as a public official, he
engaged in discussions with the Borough Solicitor as to how he (Petro) could
lawfully serve as an employee of the Borough, and subsequently directed the
Solicitor to prepare an amended Borough Ordinance for presentation to Council,
which by amending the Ordinance, enabled Petro to be immediately employed as
Borough Manager, as opposed to one year after he left public office; and when
Petro contacted individual Members of Council to support his appointment as the
Borough Manager at a time when the Borough Ordinance prohibited his
appointment to that position.
THE FOLLOWING FINDINGS ARE IN RELATION TO THE ALLEGATIONS THAT
PETRO UTILIZED HIS POSITION FOR THE PRIVATE PECUNIARY BENEFIT OF WHITE
OAK EMERGENCY MANAGEMENT SERVICES (“WOEMS”), A BUSINESS WITH
WHICH HE AND/OR MEMBERS OF HIS IMMEDIATE FAMILY ARE ASSOCIATED.
70.White Oak Emergency Medical Services … (hereafter, “WOEMS”) was created for
the purpose of providing emergency medical and rescue service to the Borough and
to aid Borough police and fire departments.
a. WOEMS was incorporated on or about April 30, 1984, as a non-profit
corporation.
b. WOEMS incorporators included Petro’s father, John W. Petro Sr., and
Petro’s spouse, Nancy Petro.
71. The Borough was serviced by WOEMS and White Oak Rescue from approximately
1985 to 1999.
a. Both entities received funding and/or financial support from White Oak
Borough.
Petro, 12-035
Page 18
b. Neither entity was operated or owned by the Borough.
72. The establishment of a sole Emergency Medical Services (“EMS”) provider for the
Borough was entertained at the September 20, 1999, Borough Council regular
meeting.
a. At that meeting, Council approved Resolution No. 3135 recognizing WOEMS
as the sole EMS provider for the Borough.
1. The vote carried 6-1 with Council Member Ina Marton casting the lone
dissenting vote.
2. Petro was not a Member of Council at this time.
b. Resolution No. 3135 was adopted as a result of White Oak Rescue’s failure
to provide certified advanced life support personnel.
c. Borough Council ceased financial assistance to White Oak Rescue,
including a $1,500/year fuel allotment.
73. WOEMS is governed by a seven (7) member volunteer Board of Directors
(hereafter, “Board”).
a. Per the WOEMS By-Laws, the Board may have up to ten (10) Board
members but no less than six (6) Board members at any given time.
b. The Board officer positions are Chairman, Vice Chairman, Secretary,
Treasurer, and Director of Operations.
74. The Borough’s Public Safety committee chairman is normally appointed to the
WOEMS Board.
a. The Council Member appointed to the WOEMS Board is generally
responsible for reporting information from WOEMS to Council.
1. Councilman Ron Massung has been the Public Safety committee
chairman since at least 2008.
b. The Borough Public Safety committee chairman serves as a liaison between
the two (2) entities.
75. The Board holds regular monthly meetings at the WOEMS building on the second
Sunday of each month.
a. Regular attendees at monthly meetings include the Board and the WOEMS
Chief.
b. The WOEMS building is located approximately two (2) miles from the
Borough municipal building.
76. WOEMS is comprised of full/part time employees and volunteers.
77. The WOEMS Director of Operations is responsible for the oversight of the day-to-
day WOEMS operations, including but not limited to monitoring of billing, personnel
matters, upkeep of equipment, and emergency calls.
Petro, 12-035
Page 19
a. The Director of Operations assigns duties to WOEMS line officers, including
the WOEMS Chief.
78. Petro has been the WOEMS Director of Operations since at least November 2007.
a. Petro has been the only Director of Operations in the history of WOEMS.
b. Petro has been associated with WOEMS in some capacity since its
inception.
79. Petro’s spouse, Nancy Petro, has served as a member of the WOEMS Board of
Directors since at least 2006.
a. Nancy Petro served as the Board Treasurer from at least November 2007 to
November 2011.
1. The Board Treasurer duties include but are not limited to recording all
deposits of the organization, keeping a record of all membership
dues, and performing other tasks as assigned by the Financial
Director.
80. The Borough has allocated financial support to WOEMS within the annual Borough
budget since at least 1999.
a. The allotted funds cover WOEMS expenses for fuel, worker’s compensation
insurance, and a general allotment.
1. There are no stipulations imposed by the Borough regarding the use
of funds for the general allotment.
b. There is no written agreement between the Borough and WOEMS
concerning the annual allotment.
81. The WOEMS Chief is responsible for executing the day-to-day operations of
WOEMS and \[performing\] duties assigned by the Director of Operations, including
overseeing employee scheduling, personnel matters, and ensuring WOEMS is in
compliance with federal and state guidelines as to emergency medical responders.
a. The Chief is an employee of WOEMS.
b. The Chief maintains a daily presence at WOEMS to ensure the execution of
the day-to-day operations.
c. The Chief reports to the Director of Operations regarding the day-to-day
operations.
82. The Borough Manager and/or Secretary/Treasurer annually distribute letters to the
Borough departments and various community organizations, including WOEMS,
requesting an allocation report for possible funding for the upcoming year on or
about the time of the initial drafting of the Borough budget.
a. The letter to WOEMS is regularly addressed to WOEMS Board President
Alfred Cooley.
1. Petro maintains the key for the WOEMS mailbox.
Petro, 12-035
Page 20
2. WOEMS mailings are distributed to the appropriate WOEMS
members/employees by Petro.
b. The allocation report is to identify the requested amount and detail how the
requested funds are to be used.
83. The WOEMS budget process is as follows:
a. Petro and/or Nancy Petro draft an initial budget for the Board’s review.
b. The budget is drafted contemporaneous to WOEMS’ receipt of the Borough
letter requesting a budget allocation report.
c. The WOEMS budget is discussed at meetings between Board members, the
WOEMS Chief, and WOEMS line officers.
1. Petro and Nancy Petro are typically present and participate in
WOEMS budget meetings.
2. The Borough allotment is routinely considered in determining the
WOEMS budget.
84. Petro and/or Nancy Petro, in their capacity as WOEMS Board members, draft a
budget allocation request for submittal to the Borough in response to the Borough
letter of request.
a. The request lists the requested allocation for the upcoming year and the
intended use of the allocation.
85. The WOEMS Board does not review, or take an official action, in the approval of
the request prior to its submittal to the Borough.
a. Petro provides the request to WOEMS Board President Fred Cooley for
review outside of a WOEMS Board meeting.
b. Petro submits the report to the Borough for its inclusion in the drafted
budget.
86. The Borough Manager (or the Secretary/Treasurer in absence thereof) is
responsible for the preparation and submittal of an annual budget to Council for its
approval, together with providing explanations, comments, and reports as desired,
or which may be requested by Council.
87. The requested amount from the WOEMS budget allocation report is incorporated
into the preliminary budget and presented to the Finance Committee for the initial
discussion/review.
88. The Borough Finance Committee presents the preliminary budget to Council for
review/discussion at a Council workshop meeting.
a. Budget discussions can extend over multiple Council workshop meetings.
89. The amount of allotments to be scheduled/provided to the various community
organizations, including WOEMS, are discussed at the Borough budget meetings.
a. Council budget discussions regularly occur at workshop meetings in the fall
of each year.
Petro, 12-035
Page 21
b. Council discusses the various allotments to determine whether the Borough
can supply the requested amount.
1. Council routinely accepts the allotment for WOEMS without discourse
or apprehension.
2. Council has generally been supportive in providing funding to
WOEMS, so long as Borough funds are available.
90. Petro regularly attended and participated in Borough budget discussions as the
President of Council, or as the Borough Manager, during Finance Committee
meetings, Council workshop meetings, and regular Council meetings from 2006 to
2013.
a. Petro did not physically remove himself from budget meetings related to
WOEMS; however, he did recuse himself and did not participate in
discussions on matters pertaining to \[WOEMS’\] budget and expenditures.
b. Petro did not petition Council Members for an increase to the requested
allotment for WOEMS.
91. Council adopts the Borough budget via resolution after reviewing the budget initially
drafted by the Borough Manager (or the Secretary/Treasurer in absence thereof).
a. The Borough Manager is responsible for administering and implementing the
budget, including the allotment to WOEMS.
92. Borough funds allotted to WOEMS were disbursed to WOEMS as follows:
a. WOEMS submitted a memo to the Borough Finance Administrator, which
identified the amount requested.
1. Support documentation was attached to the memo, including record
of payment, invoice, etc.
b. The Borough Finance Administrator reviewed the memo and generated a
Borough check for WOEMS in the respective amount.
c. The Borough check was signed by the authorized Borough signatories.
d. The Borough check was forwarded to WOEMS and/or a WOEMS
representative.
e. The Borough check was deposited into WOEMS’ PNC account \[account
number redacted\] by Petro and/or Nancy Petro.
1. Signature authority over WOEMS PNC account \[account number
redacted\] is held by WOEMS Board President Fred Cooley, WOEMS
Board Vice-President Jeffrey M. Jones, and Nancy Petro.
93. As agreed by the parties, no violation of Section 1103(a) of the Public Official and
Employee Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Petro participated in
discussions and actions of Council to approve funding for the White Oak
Emergency Management Services (WOEMS), a business with which he and/or
member(s) of his immediate family are associated; or when he authorized payments
Petro, 12-035
Page 22
to WOEMS from Borough funds, as there is insufficient evidence to establish a
clear use of office.
THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT PETRO UTILIZED
BOROUGH EMPLOYEES AND EQUIPMENT FOR THE BENEFIT OF WOEMS.
94. The Borough employs a full-time Public Works Department (hereafter,
“Department”).
a. The Department generally employs six (6) full-time employees along with
\[Jim McCabe (“McCabe”), the Department Manager\].
95. McCabe oversees the day-to-day operations of the Department.
a. McCabe is directed and supervised by the Borough Manager (or the
Secretary/Treasurer in the absence of a Borough Manager).
96. The Department is responsible for, among other duties, maintenance of Borough
property including: road maintenance (snow plowing, paving, crack sealing,
patching) and field maintenance (grass cutting, tree removal, landscape
beautification).
a. Department responsibilities are accomplished via the efforts of the full-time
employees.
97. The regular work schedule of Department employees is Monday-Friday, from 7:00
a.m. to 3:00 p.m.
a. Department employees generally meet at the Borough garage at the
beginning of their shift.
b. McCabe routinely assigns projects/work needing completion to the
Department employees at the beginning of the shift.
c. Department employees may perform the projects/work with limited or no
supervision by McCabe.
98. Department employees complete individual timesheets for each pay period for
submission to McCabe.
a. The timesheet lists the total hours worked for each day and the specific
project(s)/work performed and/or location of the project(s)/work performed.
c. The timesheets are reviewed and signed by McCabe upon receipt.
d. McCabe submits the timesheets to the Borough Office staff for payroll
processing.
99. McCabe completes a Daily Report that lists the daily total hours for each employee,
rental equipment utilized (if any), and work performed by the Department.
a. The Daily Report generally lists the work performed and the respective
Department employees who performed the work.
100. McCabe generates a monthly Public Works Report for Council, which is included in
the Council Members’ monthly meeting packet.
Petro, 12-035
Page 23
a. The report lists the projects/work completed and total hours for the
respective projects/work for each month.
101. In addition to maintenance of Borough property, the Department provides light
maintenance services to community organizations that receive funding from the
Borough.
a. Requests for service from community organizations are initially reviewed by
the Borough Manager and Public Works Manager and subsequently
presented to Council for approval.
1. Requests received directly by the Public Works Manager are
discussed with the Borough Manager and/or Council for final
approval.
b. The Secretary/Treasurer (in the absence of the Borough Manager) is not
involved in review/discussions with the Public Works Manager and Council
regarding the various services provided to community organizations.
c. Examples of services the Department has provided to community
organizations such as the local volunteer fire departments and the White
Oak Athletic Association include grass cutting and/or snow plowing/removal
services.
102. The Department has plowed snow and salted the ambulance bay entrance of
WOEMS.
a. The services were provided for public safety, to allow ambulances to enter
and exit in severe weather.
b. WOEMS contracts snow removal services for the parking lot portion of its
property.
c. The services were at McCabe’s direction/approval.
d. WOEMS does not reimburse the Borough for the service.
103. On or about September 21, 2010, Petro directed McCabe to have the Department
employees crack seal the WOEMS parking lot.
a. Crack seal refers to the use of tar and filler material to fill cracks and
crevices in asphalt surfaces to prevent further erosion of the pavement.
b. McCabe instructed the Department employees to crack seal the WOEMS
parking lot after being directed to do so by Petro.
c. Petro was McCabe’s immediate supervisor at that time.
104. The Daily Report of September 21, 2010, lists Department employees Tony
Rausch, Roger Sullivan, Randy Thomas, and Bill Fawcett as having crack sealed
the WOEMS parking lot.
a. The Daily Report lists Rausch, Sullivan, Thomas, and Fawcett as each having
worked eight (8) hours for the day.
1. The crack sealing of the WOEMS parking lot took a minimum of four
(4) hours to complete.
Petro, 12-035
Page 24
2. The crack sealing was performed during normal Department working
hours.
105. The Borough equipment utilized for the sealing included two (2) Borough trucks and
the Borough’s tar kettle.
a. The Borough does not rent Borough equipment to the public.
b. The material utilized for the sealing was from the inventory and at the
expense of the Borough.
106. The Department crack seals Borough property and does not offer/perform crack
sealing services for private organizations/businesses.
a. Crack sealing is beyond the normal light maintenance services the
Department provides for other community organizations that receive funding
from the Borough.
thth
107. On or about November 4 and 5 of 2010, an inspection of WOEMS was performed
by representatives from the Commission on Accreditation of Ambulance Services
(“CAAS”).
a. The inspection included an assessment of the WOEMS facilities, including
the physical property of WOEMS (e.g. building, parking lot, etc.)
b. WOEMS received accreditation by CAAS in March 2011.
108. The total cost to the Borough in wages for the four (4) Department employees to
crack seal the WOEMS parking lot (based on a half-day’s wage) totaled
approximately $346.36, as listed below:
Employee Hourly Wage Total Wage
Fawcett $21.76 x 4 hrs Total: $87.04
Rausch $21.61 x 4 hrs Total: $86.44
Sullivan $21.61 x 4 hrs Total: $86.44
Thomas $21.61 x 4 hrs Total: $86.44
Total 16 hours $346.36
a. An estimated cost for the material/equipment to crack seal the WOEMS
parking lot could not be determined.
109. WOEMS purchased a Zebra P110i ID badge machine (hereafter, “ID badge
machine”) approximately three to four years ago, for the purpose of making
identification badges for its employees/volunteers.
a. WOEMS does not have a record of the purchase for the ID badge machine.
b. The ID badge machine was stored and remained in its original packaging at
the WOEMS building upon purchase.
110. The Borough owns and manages the day-to-day operations of the Heritage Hill
Swim Pool (hereafter, “Pool”).
a. The Pool season normally runs the summer months between June and
August.
Petro, 12-035
Page 25
111. Petro, in his position as the Borough Manager, \[was\] responsible to supervise,
direct and conduct the administration of the Pool.
a. Petro, as the Borough Manager, was responsible for ensuring the Pool had
the necessary equipment to conduct its day-to-day operations.
112. Prior to 2010, Pool membership passes were not issued in the form of a photo
identification pass.
a. Over the years, Council had discussed altering the pool passes to include a
photo identification of the Pool member.
113. In 2010, Council agreed to begin issuing single membership Pool passes which
required the issuance of a photo ID.
a. The Borough did not own an ID badge machine to create the single ID Pool
passes prior to the 2010 regular Pool season.
b. The Borough minutes do not reflect Council’s formal approval to switch to
single membership Pool passes.
114. Petro informed Council that WOEMS owned an ID badge machine that the Borough
could utilize for the purpose of creating the single photo ID Pool pass.
a. Council agreed to utilize the WOEMS owned ID badge machine after Petro’s
proposal.
1. A formal motion or vote was not conducted to signify Council’s
agreement to use the ID badge machine.
2. No agreement was made between Petro and Council regarding the
length of use of the ID badge machine, payment for use of the ID
badge machine, or possible replacement for the use of the ID badge
machine.
b. The agreement to utilize the ID badge machine was based on the premise
that the Borough would utilize the WOEMS owned ID badge machine only
until the Borough purchased its own ID badge machine.
115. Petro delivered the WOEMS owned ID badge machine to the Borough prior to the
2010 Pool season.
a. The office staff created the ID Pool passes at the Borough building during
the off season and the Pool staff created the ID Pool passes at the Pool
during the summer season.
116. At the July 14, 2010, Borough workshop meeting, Petro recommended to Council
that the Borough purchase an ID badge machine to create Pool passes, as the
Borough had been utilizing the WOEMS’s ID badge machine.
a. Council authorized Petro to purchase an ID badge machine for the Borough
without having taken a formal vote on the matter.
117. On or about July 19, 2010, Petro utilized the Borough debit card, Citizen’s Bank
account \[account number redacted\], to purchase a Zebra P110i Single Sided Card
Printer from ID Card Group (located at 3410 Industrial Blvd., Suite 105, West
Sacramento, CA 95691) at the cost of $1,179.00.
Petro, 12-035
Page 26
a. The Borough received invoice #825428 from ID Card Group as a result of
Petro ordering the machine.
1. The invoice reflects the Zebra P110i was purchased by Petro for
White Oak Borough.
2. The invoice reflects the delivery address of the White Oak Borough
municipal building, 2280 Lincoln Way, White Oak, PA 15131.
118. Petro took possession of the Zebra P110i and delivered/installed it at the WOEMS
building, without Council’s knowledge or approval, upon receiving the machine at
the Borough building.
a. Council did not approve purchasing the Zebra P110i for WOEMS.
119. The WOEMS ID badge machine remained in the Borough’s possession after Petro
received and delivered the Zebra P110i to WOEMS.
a. The WOEMS ID badge machine continues to be utilized by Borough staff to
create ID Pool passes.
120. The Borough did not utilize the Zebra P110i purchased with Borough funds, to
create single photo ID Pool passes.
a. The Zebra P110i purchased with Borough funds has been utilized by
WOEMS for employee/volunteer photo ID badges as a result of Petro
delivering and installing the machine at the WOEMS building.
b. The Zebra P110i purchased with Borough funds is the same make/model as
the WOEMS ID badge machine.
121. Petro, as the Borough Manager, was responsible for the overall day-to-day
operations of the Borough, including oversight of the office staff.
a. The office staff utilizes and/or shares Borough owned equipment (e.g.
computers, printers/copiers, telephone) to perform everyday job
duties/responsibilities.
122. Petro, as the Director of Operations of WOEMS, is responsible for the upkeep of
WOEMS owned equipment, including office equipment.
a. WOEMS personnel utilize various pieces of office equipment to
perform/assist with their everyday job duties and responsibilities.
123. Prior to July 2011, WOEMS personnel had utilized a WOEMS owned Xerox model
printer/copier/scanner for the day-to-day operations.
a. The Xerox machine was essential for the day-to-day operations of WOEMS.
124. The Xerox machine had malfunctioned and/or was inoperable as of July 2011.
a. By July 2011, it was essential for WOEMS to obtain a properly functional
printer/copier/scanner for its day-to-day operations.
1. Petro is responsible for ensuring WOEMS has the essential
equipment for its day-to-day operations.
Petro, 12-035
Page 27
125. At the July 10, 2011, WOEMS Board meeting, Petro motioned, seconded by Board
member Rachelle Gebis, to purchase a new multi-function printer at the cost of
$1,500.00 to replace the malfunctioning and/or inoperable Xerox.
a. Petro normally initiated and contributed in discussions regarding WOEMS
office equipment, specifically in relation to printer/copier matters due to his
experience in the printer/copier business.
b. The minutes list the discussion and motion to purchase the multi-function
printer under “Old Business.”
c. The minutes do not list the Board approving the sale of any WOEMS owned
printer/copier in conjunction with the purchase of a new printer/copier.
126. On or about July 12, 2011, Petro purchased a Xerox WorkCentre 4250/X multi-
function printer from Document Solutions, an authorized Xerox dealer and service
provider based in Monroeville, PA.
a. WOEMS check payment #11509 in the amount of $1,500.00 bearing
signatures of Nancy Petro and Cooley was made out to Document Solutions
for the printer/copier.
b. The Xerox WorkCentre 4250/X was delivered by Petro to WOEMS on or
about July 22, 2011.
127. The Xerox 4250/X was installed at the WOEMS building by Petro and utilized by
WOEMS personnel as an essential piece of equipment for the day-to-day
operations of WOEMS.
128. After WOEMS purchased the Xerox 4250/X, but prior to December 12, 2011, the
Xerox Corporation replaced the malfunctioning and/or inoperable Xerox for
WOEMS.
a. The replacement printer/copier provided by the Xerox Corporation to
WOEMS resulted in WOEMS owning two functional Xerox printer/copiers.
b. WOEMS has no record or receipt of the replacement printer/copier that was
provided by the Xerox Corporation.
129. At a WOEMS Board meeting prior to December 12, 2011, Petro informed WOEMS
Board members that the Borough was interested in purchasing a multi-function
printer and suggested that WOEMS sell the Xerox 4250/X to the Borough at a
reduced cost.
130. WOEMS Board members agreed with Petro’s recommendation to sell the Xerox
4250/X to the Borough at a reduced cost with the knowledge WOEMS was to
receive payment from the Borough.
a. The WOEMS minutes do not reflect the discussions regarding the potential
sale of a printer/copier to the Borough.
131. In the later part of 2011, Petro inquired with Greenland about availability of Borough
funding to obtain a new printer/copier for the Borough office staff.
a. Greenland informed Petro that the 2011 budget had an allocation for office
equipment.
Petro, 12-035
Page 28
b. Greenland informed Petro to inquire with the Financial Administrator, Jan
Gerber, regarding funds available/budgeted for the purchase of a
printer/copier.
1. Petro did not inquire with Gerber as Greenland had suggested.
2. Petro has the authority as the Borough Manager to research available
Borough funds prior to purchasing Borough supplies/equipment.
132. Petro had informed Council during a workshop session that the Borough office
needed a printer/copier contemporaneous to Petro inquiring with Greenland about
funds for a new printer/copier.
a. Petro did not inform Council where the printer/copier was to be purchased or
the estimated cost of the printer/copier.
b. Council authorized Petro to purchase a printer/copier for the Borough office
without having taken a formal vote on the matter.
133. On or about December 12, 2011, Petro removed the Xerox 4250/X from the
WOEMS building with the intention of completing the sale to the Borough.
a. Petro delivered/installed the Xerox 4250/X in the Borough office upon
removing it from the WOEMS community room.
b. The Xerox 4250/X was not in its original packaging when delivered by Petro.
1. Petro informed the office personnel that he had already unpacked the
Xerox from its original packaging to conceal its origin.
c. The Xerox 4250/X was installed in the Borough office for the use by the
Borough office staff.
d. Petro did not inform the office personnel that the Xerox 4250/X had been
obtained from WOEMS.
134. The Borough Financial Administrator, Jan Gerber, received a WOEMS invoice
dated December 12, 2012, in the amount of $1,200.00 due for payment of the Xerox
4250/X.
a. Petro determined the final selling price of the Xerox 4250/X from WOEMS to
the Borough.
135. Gerber generated Borough check payment #104585 to WOEMS, dated December
29, 2011, in the amount of $1,200.00 upon receipt of the invoice.
a. Gerber provided Borough check #104585 to Petro and Greenland for proper
signature.
b. Borough check #104585 was signed by Petro and Greenland
contemporaneous to Gerber generating the check.
c. Borough check #104585 was issued to WOEMS in payment of the
December 12, 2012, invoice.
Petro, 12-035
Page 29
136. As agreed by the parties, no violation of Section 1103(a) of the Public Official and
Employee Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Petro utilized Borough
employees and equipment for the benefit of WOEMS, in that the amount of financial
benefit is believed to be de minimis.
a. Furthermore, as agreed, no violation of Section 1103(f) of the Public Official
and Employee Ethics Act, 65 Pa.C.S. § 1103(f), occurred when Petro, as
Borough Manager, negotiated the sale of a WOEMS owned printer/copier in
excess of $500.00, as authorization was granted by Council to make the
purchase at a workshop meeting of Council, albeit no official vote was taken
by Council.
III.DISCUSSION:
As a Member of Borough Council (“Council”) for White Oak Borough (“Borough”),
Allegheny County, from approximately January 1986 through December 1993 and from
January 2006 until December 21, 2009, and as Borough Manager from December 22,
2009, to February 13, 2013, Respondent John Petro, hereinafter also referred to as
“Respondent,” “Respondent Petro,” and “Petro,” was a public official/public employee
subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq.
The allegations are that Respondent Petro violated Section 1103(a) and Section
1103(f) of the Ethics Act when he used the authority of his public position for the private
pecuniary benefit of himself and/or a business with which he and/or a member of his
immediate family is associated: (1) when he participated in discussions and actions of
Council to approve funding for the White Oak Emergency Management Services
(“WOEMS”); (2) when he authorized payments to WOEMS; (3) when he utilized Borough
employees and equipment for the benefit of WOEMS; (4) when as a Member and
President of Council he used his position to amend a Borough ordinance to enable him to
be qualified for the position of Borough Manager and then participated in discussions of
Council resulting in his appointment to Borough Manager; and (5) when as Borough
Manager, he negotiated the sale of a WOEMS owned printer/copier in excess of $500.00
to the Borough absent an open and public process.
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
Petro, 12-035
Page 30
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 1103(f) of the Ethics Act imposes certain restrictions as to contracting:
§ 1103. Restricted activities
(f)Contract.—
No public official or public employee or
his spouse or child or any business in which the person or his
spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with which
the public official or public employee is associated or any
subcontract valued at $500 or more with any person who has
been awarded a contract with the governmental body with
which the public official or public employee is associated,
unless the contract has been awarded through an open and
public process, including prior public notice and subsequent
public disclosure of all proposals considered and contracts
awarded. In such a case, the public official or public employee
shall not have any supervisory or overall responsibility for the
implementation or administration of the contract. Any contract
or subcontract made in violation of this subsection shall be
voidable by a court of competent jurisdiction if the suit is
commenced within 90 days of the making of the contract or
subcontract.
65 Pa.C.S. § 1103(f).
Section 1103(f) of the Ethics Act provides in part that no public official/public
employee or his spouse or child or business with which the public official/public employee
or his spouse or child is associated may enter into a contract with his governmental body
valued at five hundred dollars or more or any subcontract valued at five hundred dollars or
more with any person who has been awarded a contract with the governmental body with
which the public official/public employee is associated unless the contract is awarded
through an open and public process including prior public notice and subsequent public
disclosure of all proposals considered and contracts awarded.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are set forth above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
Respondent served as a Member of Council from approximately January 1986
through December 1993 and from January 2006 until December 21, 2009. Respondent
served as Council President from January 3, 2006, until December 21, 2009. Respondent
resigned from Council effective December 21, 2009, and was appointed Borough Manager
Petro, 12-035
Page 31
effective December 22, 2009. Respondent’s employment as Borough Manager was
terminated by Council on February 13, 2013.
Council consists of seven Members. At Council meetings, a roll call vote is utilized
as needed and/or for personnel issues. A group aye/nay vote is utilized for the approval of
minutes and monthly expenditures. All objections and abstentions are to be noted within
the minutes regardless of the type of vote taken. Respondent asserts that the Council
President chairs the meetings and votes only if a tie vote occurs or a secret ballot is
utilized.
The Borough Secretary/Treasurer is Nancy Greenland (“Greenland”). The Borough
Financial Administrator is Jan Gerber (“Gerber”). Gerber is responsible for receiving and
paying Borough invoices. Borough checks require the signatures of any combination of
two authorized signatories. The Borough Manager is an authorized signatory for Borough
checks.
Regarding Respondent’s appointment to the position of Borough Manager:
The Borough Manager position is established by Borough Codified Ordinance,
Article 123-Manager (“the Article”). The Article was created via passage of Borough
Ordinance No. 2235, enacted September 17, 1984. The Borough Manager has
supervisory responsibility over remaining Borough employees and reports directly to
Council.
Prior to November 16, 2009, the Article prohibited the appointment of a Council
Member or the Mayor as the Borough Manager during the term for which he/she had been
elected or within one year after the expiration of such term.
From approximately April 2004 through December 21, 2009, the Borough Manager
position was vacant, and Greenland as Borough Secretary/Treasurer preformed the duties
and responsibilities of the Borough Manager without receiving an increased wage for doing
so. Council did not pursue hiring a Borough Manager for various reasons, including
financial restraints and the consensus that Greenland could perform the
duties/responsibilities of the Borough Manager.
In early 2009, at about the time Respondent applied for and/or was receiving
unemployment compensation, Respondent assumed some of the duties of the Borough
Manager position without receiving a directive or approval from Council to do so. At that
time, Respondent was not paid for performing such duties.
By the summer of 2009, Respondent, as the President of Council, initiated
discussions within executive sessions of Council regarding the appointment of a Borough
Manager. Respondent informed Council Members that a Borough Manager was needed to
manage the day-to-day operations of the Borough and to apply for additional grant
funding. Council was ultimately supportive of the concept of hiring a Borough Manager.
In the summer of 2009, Respondent expressed to Council Member Ronald Massung
(“Massung”) Respondent’s intent to become the Borough Manager. Respondent informed
Massung that he could lower insurance costs, obtain grants, and help run the Borough
more efficiently if appointed Borough Manager. Respondent approached Massung for
Massung’s support in appointing Respondent as Borough Manager.
By the fall of 2009, Respondent, as President of Council, had informed Council
Members and Borough representatives on numerous occasions of his interest in becoming
the Borough Manager. Council did not conceptualize the need for filling the position of
Borough Manager until Respondent initiated the idea with Council. It was only after
Respondent expressed interest in the position of Borough Manager that Council
Petro, 12-035
Page 32
entertained the possibility of appointing a Borough Manager. Council Members were
supportive of Respondent’s appointment as the Borough Manager, once Respondent had
expressed his interest in the position.
At or about the time he expressed his intent to seek appointment to the Borough
Manager position, Respondent, with the consent of Council, inquired with the Borough
Solicitor, Terry Leckman (“Leckman”), regarding the possibility of simultaneous service as
a Council Member and Borough Manager. Leckman informed Respondent that the
Borough Code would prohibit a Member of Council from being an employee of the
Borough.
In approximately October 2009, Respondent informed Greenland of his intent to
seek the position of Borough Manager. Respondent informed Greenland that the Borough
Manager Ordinance was to be amended in order to facilitate his appointment as the
Borough Manager. Without such an amendment, Respondent would have been ineligible
to be considered for the Borough Manager position for one year after leaving office.
On or about November 2-3, 2009, Respondent, in his capacity as the President of
Council and with the consent of Council, directed Leckman to research and draft an
amended Borough Manager Ordinance with the expectation that the amended Ordinance
would facilitate Respondent’s employment as the Borough Manager. Respondent directed
Leckman to amend the Borough Manager Ordinance by eliminating the section that
prohibited a Member of Council from being appointed Borough Manager within one year
after the expiration of his/her term of office.
Leckman presented the amended Borough Manager Ordinance (Ordinance No.
3559) to Council at Council’s workshop meetings on November 11, 2009, and November
16, 2009. Council Members reviewed the Ordinance with the expectation that it would
enable Respondent’s immediate appointment as the Borough Manager.
Respondent drafted his own Borough Manager Employment Agreement (hereafter,
“Agreement”) and provided it to Leckman for review on or about November 11, 2009, in
anticipation of Respondent’s pending appointment as the Borough Manager. The
Agreement as created by Respondent set forth Respondent’s annual salary, inclusion in
the Borough’s health benefits and errors and omissions policy, leave time, and a
severance package providing for six months’ salary rather than the three months provided
to other Borough managerial employees. Respondent drafted the Agreement prior to
Council having been presented the amended Borough Manager Ordinance for review or
adoption.
Council reviewed Respondent’s proposed Agreement during an executive session
at the November 11, 2009, workshop meeting. Respondent was present and available to
discuss the Agreement throughout Council’s review.
The proposed 2010 Borough budget was first presented to Council at the November
11, 2009, workshop meeting. The initial draft of the 2010 budget did not allocate funds to
the Borough Manager position. An allocation for the Borough Manager position was
inserted in the budget on November 11, 2009, at Council’s direction, prior to any
appointment to the position or approval of employment agreement.
At the direction of Respondent and/or Leckman, the amended Borough Manager
Ordinance No. 3559 was included on the agenda for the November 16, 2009, regular
meeting of Council.
At the November 16, 2009, regular meeting of Council, Leckman presented the
amended Borough Manager Ordinance (Ordinance No. 3559) to Council for its approval.
Leckman informed Council that the Borough Manager Ordinance needed to be amended in
Petro, 12-035
Page 33
order for Respondent to be appointed to the position. Immediately following Leckman
presenting Ordinance No. 3559, Councilman Charles Davis motioned, seconded by
Councilman Ed Babyak, for the adoption of Ordinance No. 3559. Respondent was present
for the November 16, 2009, regular meeting. Minutes of the meeting do not document any
“nay” votes or abstentions regarding Ordinance No. 3559. Immediately following the
motion and seconding to adopt Ordinance No. 3559, Respondent, as President of Council,
announced that Ordinance No. 3559 had been adopted. Ordinance No. 3559 was
amended and approved in order to facilitate Respondent’s appointment as the Borough
Manager.
Budget discussions continued at Council meetings in November and December
2009. Respondent, as President of Council, was present at and participated in Council
discussion relating to the 2010 budget. Respondent participated in discussions leading to
the decision to fund the Manager position. Respondent recommended to Council his
starting Borough Manager salary of $65,000 per year. Council agreed to Respondent’s
recommended salary prior to approval of the 2010 budget.
At the December 21, 2009, regular meeting, Leckman presented Resolution No.
3561 2010 Budget Appropriations (Expenditures/Revenues), which included the 2010
budget allocation for the Borough Manager position that had been previously determined
and agreed upon by Council. A motion was made by Councilman George Dillinger,
seconded by Councilman David Pasternak, to adopt Resolution No. 3561. Respondent
was present for the December 21, 2009, regular meeting. Minutes of the meeting do not
document any “nay” votes or abstentions regarding Ordinance No. 3561. Immediately
following the motion and seconding to adopt Ordinance No. 3561, Respondent, as
President of Council, announced that Ordinance No. 3561 had been adopted.
Following the adoption of Resolution No. 3561, Respondent’s resignation from
Council was announced and accepted at the December 21, 2009, regular meeting.
Respondent’s resignation letter, dated December 21, 2009, reported both his resignation
from Council and acceptance of the position of Borough Manager. Respondent’s letter of
resignation documented his acceptance of the Borough Manager position prior to any
public affirmation of any such offer to Respondent.
The meeting agenda for the December 21, 2009, regular meeting did not identify the
appointment of a Borough Manager as an item scheduled for consideration. However,
immediately following Council’s acceptance of Respondent’s resignation letter,
Councilman Kenneth Robb motioned, seconded by Councilman Babyak, to appoint
Respondent to the Borough Manager position, effective 8:00 a.m. on December 22, 2009.
The motion carried via unanimous vote.
Immediately following the conclusion of the December 21, 2009, meeting, the
Agreement was signed by Pasternak, Greenland, and Respondent. The Agreement
documented Respondent’s effective start date of December 22, 2009. Pursuant to the
Agreement, Respondent did not begin to receive compensation as Borough Manager until
January 1, 2010.
The parties have stipulated that from at least June to December 2009, Respondent,
as the President of Council, was regularly present at Council workshop and regular
meeting executive sessions during which time Council discussed the Borough Manager
position, including Respondent’s appointment, salary, and start date. Respondent initiated
Council action and participated in subsequent Council discussions relating to the
appointment of a Borough Manager. Respondent advocated being appointed Borough
Manager at a time when Council had no intent to fill the vacancy and there were no other
candidates being considered. Respondent repeatedly expressed to Council his desire to
fill the position and his interest in his appointment to the position after initiating the
discussions. Respondent influenced Council Members by describing the specific duties he
Petro, 12-035
Page 34
would perform as the Borough Manager, once appointed. Respondent recommended his
initial salary to Council and drafted his employment Agreement prior to Council taking any
formal action to appoint Respondent to the position. Respondent participated in Council
action to set the Borough Manager salary.
Between January 10, 2010, and February 17, 2013, Respondent received a total of
$206,129.68 representing compensation for his service as the Borough Manager.
Additionally, the Borough expended $41,655.66 for the inclusion of Respondent and his
spouse in the Borough’s group health, dental, and vision plans covering the time period of
April 2010 to March 2013.
Respondent’s employment as Borough Manager was terminated by Council on
February 13, 2013. Thereafter, in accordance with the Agreement, Respondent received a
total of twelve bi-weekly severance payments totaling $31,518.72.
The parties have stipulated that Respondent utilized the authority of his office as a
Member and President of Council to realize a pecuniary benefit when, as a public official,
he engaged in discussions with the Borough Solicitor as to how he (Respondent) could
lawfully serve as an employee of the Borough, and subsequently directed the Solicitor to
prepare an amended Borough Ordinance for presentation to Council, which enabled
Respondent to be employed immediately as Borough Manager; and when Respondent
contacted individual Members of Council to support his appointment as the Borough
Manager at a time when the Borough Ordinance prohibited his appointment to that
position.
Regarding Borough financial support provided to White Oak Emergency Management
Services:
White Oak Emergency Medical Services (“WOEMS”) is the sole Emergency Medical
Services (“EMS”) provider for the Borough. WOEMS was incorporated on or about April
30, 1984, as a non-profit corporation.WOEMS incorporators included Respondent’s
father and Respondent’s spouse.
WOEMS is governed by a volunteer Board of Directors (hereafter, “Board”). The
Board officer positions are Chairman, Vice Chairman, Secretary, Treasurer, and Director of
Operations. Respondent’s spouse has served as a member of the Board since at least
2006. Respondent’s spouse served as Board Treasurer from at least November 2007 to
November 2011. Respondent has been the WOEMS Director of Operations since at least
November 2007.
Since at least 1999, the Borough has allocated financial support to WOEMS within
the annual Borough budget. Each year, the Borough Manager and/or Secretary/Treasurer
distribute letters to the Borough departments and various community organizations,
including WOEMS, requesting an allocation report for possible funding for the upcoming
year. Respondent submits the WOEMS budget allocation report to the Borough. The
requested amount from the WOEMS budget allocation report is incorporated into the
preliminary budget and presented to the Borough Finance Committee for initial
discussion/review. The Borough Finance Committee then presents the preliminary budget
to Council for review/discussion. Council routinely accepts the allotment for WOEMS.
Respondent regularly attended and participated in Borough budget discussions as
the President of Council, or as the Borough Manager, during Finance Committee meetings,
Council workshop meetings, and regular Council meetings from 2006 to 2013.
Respondent did not physically remove himself from budget meetings related to WOEMS;
however, he did recuse himself and did not participate in discussions on matters pertaining
to WOEMS’ budget and expenditures. Respondent did not petition Council Members for
an increase to the requested allotment for WOEMS.
Petro, 12-035
Page 35
The parties have agreed that no violation of Section 1103(a) of the Ethics Act, 65
Pa.C.S. § 1103(a), occurred as to the allegations that Respondent participated in
discussions and actions of Council to approve funding for WOEMS and authorized
payments to WOEMS from Borough funds, as there is insufficient evidence to establish a
clear use of office.
Regarding the use of Borough employees and equipment for the benefit of WOEMS:
As Borough Manager, Respondent was the immediate supervisor of the Manager of
the Borough’s Public Works Department (“Department”). On or about September 21,
2010, Respondent directed the Department Manager to have Department employees crack
seal the WOEMS parking lot. This type of work is beyond the normal light maintenance
services the Department provides for other community organizations that receive funding
from the Borough. The Borough paid Department employee wages totaling approximately
$346.36 for crack sealing the WOEMS parking lot. An estimated cost for the Borough
material/equipment used to crack seal the WOEMS parking lot could not be determined.
The Borough owns and manages the day-to-day operations of the Heritage Hill
Swim Pool (“Pool”). As Borough Manager, Respondent was responsible to supervise,
direct and conduct the administration of the Pool and to ensure the Pool had the necessary
equipment to conduct its day-to-day operations.
In 2010, Council agreed to begin issuing single membership Pool passes which
required the issuance of a photo ID. At that time, the Borough did not own an ID badge
machine to create the single ID Pool passes. WOEMS had already purchased an ID
badge machine, which remained in its original packaging and was stored at the WOEMS
building upon purchase. Respondent informed Council that WOEMS owned an ID badge
machine that the Borough could use to create the single photo ID Pool passes. Council
agreed to utilize the WOEMS owned ID badge machine. The Borough was to use the
WOEMS owned ID badge machine only until the Borough purchased its own ID badge
machine. Respondent delivered the WOEMS owned ID badge machine to the Borough
prior to the 2010 Pool season.
At the July 14, 2010, Borough workshop meeting, Respondent recommended to
Council that the Borough purchase an ID badge machine to create Pool passes, as the
Borough had been using WOEMS’ ID badge machine. Council authorized Respondent to
purchase an ID badge machine for the Borough.
On or about July 19, 2010, Respondent utilized the Borough debit card to purchase
an ID badge machine that was the same make/model as the WOEMS ID badge machine,
at a cost of $1,179.00. When the ID badge machine purchased with Borough funds was
delivered to the Borough building, Respondent took possession of it and
delivered/installed it at the WOEMS building without Council’s knowledge or approval. The
WOEMS ID badge machine remained in the Borough’s possession and continued to be
utilized by Borough staff to create ID Pool passes. The ID badge machine purchased with
Borough funds has been utilized by WOEMS.
The parties have agreed that no violation of Section 1103(a) of the Ethics Act, 65
Pa.C.S. § 1103(a), occurred when Respondent utilized Borough employees and equipment
for the benefit of WOEMS, in that the amount of financial benefit is believed to be de
minimis.
Regarding allegations that Respondent, as Borough Manager, negotiated the sale of a
WOEMS owned printer/copier to the Borough absent an open and public process:
Petro, 12-035
Page 36
On or about July 12, 2011, WOEMS purchased a Xerox WorkCentre 4250/X multi-
function printer (“4250/X”) at a cost of $1,500.00 to replace another printer (“Dysfunctional
Printer”) that was no longer working properly. The 4250/X was delivered by Respondent to
WOEMS on or about July 22, 2011. After WOEMS had purchased the 4250/X, but prior to
December 12, 2011, the Xerox Corporation replaced the Dysfunctional Printer for
WOEMS. This resulted in WOEMS owning two functional Xerox printer/copiers.
At a WOEMS Board meeting prior to December 12, 2011, Respondent informed
WOEMS Board members that the Borough was interested in purchasing a multi-function
printer and suggested that WOEMS sell the 4250/X to the Borough at a reduced cost.
WOEMS Board members agreed with Respondent’s recommendation.
In the later part of 2011, Respondent inquired with Greenland about availability of
Borough funding to obtain a new printer/copier for the Borough office staff. Greenland
informed Respondent that the 2011 budget had an allocation for office equipment.
Contemporaneous to Respondent inquiring with Greenland about funds for a new
printer/copier, Respondent informed Council during a workshop session that the Borough
office needed a printer/copier. Respondent did not inform Council where the printer/copier
was to be purchased or the estimated cost of the printer/copier. Council authorized
Respondent to purchase a printer/copier for the Borough office.
On or about December 12, 2011, Respondent removed the 4250/X from the
WOEMS building with the intention of completing the sale to the Borough. Respondent
delivered/installed the 4250/X in the Borough office and informed the office personnel that
he had already unpacked the 4250/X from its original packaging. Respondent did not
inform the office personnel that the 4250/X had been obtained from WOEMS.
Respondent determined the final selling price of the 4250/X from WOEMS to the
Borough. Gerber received a WOEMS invoice dated December 12, 2012, in the amount of
$1,200.00 for payment of the 4250/X. Gerber generated a Borough check to WOEMS in
the amount of $1,200.00 as payment for the 4250/X, which check was signed by
Respondent and Greenland as authorized signatories for the Borough.
The parties have agreed that no violation of Section 1103(f) of the Ethics Act, 65
Pa.C.S. § 1103(f), occurred when Respondent, as Borough Manager, negotiated the sale
of a WOEMS owned printer/copier in excess of $500.00, as authorization was granted by
Council to make the purchase at a workshop meeting of Council, albeit no official vote was
taken by Council.
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 when Petro, in his capacity
\[as\] a Member and President of White Oak
Borough Council, Allegheny County, utilized the
authority of his public position to amend a
Borough ordinance thereby enabling him to be
eligible for appointment to the position of
Borough Manager, and subsequently
Petro, 12-035
Page 37
participated in discussions of Council resulting in
his appointment as the Borough Manager.
b. That no violation of Section 1103(a) of the Public
Official and Employee Ethics Act, 65 Pa.C.S.
§1103(a) occurred when Petro participated in
discussions and actions of Council to approve
funding for the White Oak Emergency
Management Services (WOEMS), a business
with which he and/or member(s) of his immediate
family are associated; or when he authorized
payments to WOEMS from Borough funds, as
there is insufficient evidence to establish a clear
use of office.
c. That no violation of Section 1103(a) of the Public
Official and Employee Ethics Act, 65 Pa.C.S.
§1103(a) occurred when Petro utilized Borough
employees and equipment for the benefit of
WOEMS, in that in light of recent Commission
rulings, the amount of financial benefit is
believed to be de minimis.
d. That no violation of Section 1103(f) of the Public
Official and Employee Ethics Act, 65 Pa.C.S.
§1103(f) occurred when Petro, as Borough
Manager, negotiated the sale of a WOEMS
owned printer/copier in excess of $500.00, as
authorization was granted by Council to make
the purchase at a workshop meeting of Council,
albeit no official vote was taken by Council.
4. Petro agrees to make payment in the amount of $36,518.72 in
settlement of this matter as follows:
a. $31,518.72 payable to the Commonwealth of
Pennsylvania and forwarded to the Pennsylvania
State Ethics Commission within thirty (30) days
of the issuance of the final adjudication in this
matter.
b. $5,000.00 which represents 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 made
payable to the Pennsylvania State Ethics
Commission within thirty (30) days of the
issuance of the final adjudication in this matter.
5. Petro agrees to not accept any reimbursement, compensation
or other payment from White Oak Borough representing a full
or partial reimbursement of the amount paid in settlement of
this matter.
6. The Investigative Division will recommend that the State Ethics
Commission take no further action in this matter; and make no
Petro, 12-035
Page 38
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 when
Respondent, in his capacity as a Member and President of Council, utilized the authority of
his public position to amend a Borough ordinance thereby enabling him to be eligible for
appointment to the position of Borough Manager, and subsequently participated in
discussions of Council resulting in his appointment as the Borough Manager.
Prior to the amendment of the Borough Manager Ordinance, there were numerous
uses of the authority of office by Respondent to further his hiring as the Borough Manager,
such as initiating discussions within executive sessions of Council regarding the
appointment of a Borough Manager, informing Council Members that a Borough Manager
was needed, and, as President of Council, informing Council Members and Borough
representatives on numerous occasions of his interest in becoming the Borough Manager.
On or about November 2-3, 2009, Respondent used the authority of office when, as
President of Council, he directed Leckman to research and draft an amended Borough
Manager Ordinance eliminating the section that prohibited a Member of Council from being
appointed Borough Manager within one year after the expiration of his/her term of office.
In mid-November 2009, when the Council Members reviewed the proposed
amended Borough Manager Ordinance, it was with the expectation that the amended
Borough Manager Ordinance would enable Respondent’s immediate appointment as the
Borough Manager.
At the November 16, 2009, regular meeting of Council, Borough Manager
Ordinance No. 3559 was approved without any documented “nay” votes or abstentions.
Immediately following the motion and seconding to adopt Ordinance No. 3559,
Respondent, as President of Council, announced that Ordinance No. 3559 had been
adopted. Ordinance No. 3559 was amended and approved in order to facilitate
Respondent’s appointment as the Borough Manager.
Respondent recommended his initial salary to Council and drafted his own
employment Agreement prior to Council taking any formal action to appoint Respondent to
the position. Respondent participated in Council action to set the Borough Manager salary.
Per the Consent Agreement, the parties are in agreement that after using the authority of
his public position to amend the Borough Manager Ordinance--thereby enabling him to be
eligible for appointment to the position of Borough Manager--Respondent participated in
discussions of Council resulting in his appointment as the Borough Manager.
At its December 21, 2009, regular meeting, Council: approved the 2010 budget,
which included the allocation for the Borough Manager position; subsequently announced
and accepted Respondent’s resignation from Council; and then immediately appointed
Respondent to the Borough Manager position, effective the following day.
The resulting pecuniary benefit to Respondent consisted of the compensation he
received as Borough Manager. Between January 10, 2010, and February 17, 2013,
Petro, 12-035
Page 39
Respondent received a total of $206,129.68 representing compensation for his service as
the Borough Manager. Respondent also received Borough-paid benefits. After
Respondent’s employment as Borough Manager was terminated by Council on February
13, 2013, Respondent received--in accordance with the employment Agreement he had
created--a total of twelve bi-weekly severance payments totaling $31,518.72.
We hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a),
occurred when Respondent, in his capacity as a Member and President of Council, utilized
the authority of his public position to amend a Borough ordinance thereby enabling him to
be eligible for appointment to the position of Borough Manager, and subsequently
participated in discussions of Council resulting in his appointment as the Borough
Manager. Cf., Sulc, Order No. 1639.
We accept the recommendation of the parties for a finding that no violation of
Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Respondent
participated in discussions and actions of Council to approve funding for WOEMS, a
business with which he and/or member(s) of his immediate family are associated; or when
he authorized payments to WOEMS from Borough funds, as there is insufficient evidence
to establish a clear use of office.
Factually, Respondent regularly attended and participated in Borough budget
discussions as the President of Council, or as the Borough Manager, during Finance
Committee meetings, Council workshop meetings, and regular Council meetings from 2006
to 2013. Respondent did not physically remove himself from budget meetings related to
WOEMS; however, he did recuse himself and did not participate in discussions on matters
pertaining to WOEMS’ budget and expenditures. Respondent did not petition Council
Members for an increase to the requested allotment for WOEMS.
We hold that no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a),
occurred when Respondent participated in discussions and actions of Council to approve
funding for WOEMS, a business with which he and/or member(s) of his immediate family
are associated; or when he authorized payments to WOEMS from Borough funds, as there
is insufficient evidence to establish a clear use of office.
We agree with the parties that no violation of Section 1103(a) of the Ethics occurred
when Respondent utilized Borough employees and equipment for the benefit of WOEMS,
in that the quantified financial benefit is de minimis.
The Borough paid Department employee wages totaling approximately $346.36 for
crack sealing the WOEMS parking lot. An estimated cost for the Borough
material/equipment used to crack seal the WOEMS parking lot could not be determined.
Additionally, the Stipulated Findings do not establish the amount of any pecuniary benefit
to WOEMS resulting from the unauthorized exchange of new or like new ID badge
machines belonging to the Borough and WOEMS, which were of the same make/model.
We hold that no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a),
occurred when Respondent utilized Borough employees and equipment for the benefit of
WOEMS, in that the quantified financial benefit is de minimis.
We accept the recommendation of the parties for a finding that no violation of
Section 1103(f) of the Ethics Act occurred when Respondent, as Borough Manager,
negotiated the sale of a WOEMS owned printer/copier in excess of $500.00, as
authorization was granted by Council to make the purchase at a workshop meeting of
Council, albeit no official vote was taken by Council. Although Respondent did not inform
Council where the printer/copier was to be purchased or the estimated cost of the
printer/copier, the parties are in agreement that a finding of no violation of Section 1103(f)
Petro, 12-035
Page 40
would be appropriate as part of an overall settlement of this case, and we shall accept the
parties’ proposed disposition.
We hold that no violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f),
occurred when Respondent, as Borough Manager, negotiated the sale of a WOEMS
owned printer/copier in excess of $500.00, as authorization was granted by Council to
make the purchase at a workshop meeting of Council, albeit no official vote was taken by
Council.
As part of the Consent Agreement, Respondent has agreed to make payment in the
amount of $36,518.72 payable as follows: (a) $31,518.72 payable to the Commonwealth of
Pennsylvania and forwarded to this Commission within thirty (30) days of the issuance of
the final adjudication in this matter; and (b) $5,000.00 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 within thirty (30) days of the issuance of the
final adjudication in this matter.
Respondent has agreed to not accept any reimbursement, compensation or other
payment from the Borough representing a full or partial reimbursement of the amount paid
in settlement of this matter.
We determine that the Consent Agreement submitted by the parties sets forth a
proper disposition for this case, based upon our review as reflected in the above analysis
and the totality of the facts and circumstances.
Accordingly, per the Consent Agreement of the parties, Respondent is directed to
make payment in the amount of $36,518.72 payable as follows: (a) $31,518.72 payable to
the Commonwealth of Pennsylvania and forwarded to this Commission by no later than the
th
thirtieth (30) day after the mailing date of this adjudication and Order; and (b) $5,000.00
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 by no
th
later than the thirtieth (30) day after the mailing date of this adjudication and Order.
Per the Consent Agreement, Respondent is further directed to not accept any
reimbursement, compensation or other payment from the Borough representing a full or
partial reimbursement of the amount paid in settlement of this matter.
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.
Petro, 12-035
Page 41
IV.CONCLUSIONS OF LAW:
1. As a Member of Borough Council (“Council”) for White Oak Borough (“Borough”),
Allegheny County, from approximately January 1986 through December 1993 and
from January 2006 until December 21, 2009, and as Borough Manager from
December 22, 2009, to February 13, 2013, Respondent John Petro (“Petro”) was a
public official/public employeesubject to the provisions of the Public Official and
Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq.
2. Petro violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he, in
his capacity as a Member and President of Council, utilized the authority of his
public position to amend a Borough ordinance thereby enabling him to be eligible
for appointment to the position of Borough Manager, and subsequently participated
in discussions of Council resulting in his appointment as the Borough Manager.
3. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred
when Petro participated in discussions and actions of Council to approve funding
for the White Oak Emergency Management Services (“WOEMS”), a business with
which he and/or member(s) of his immediate family are associated; or when he
authorized payments to WOEMS from Borough funds, as there is insufficient
evidence to establish a clear use of office.
4. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred
when Petro utilized Borough employees and equipment for the benefit of WOEMS,
in that the quantified financial benefit is de minimis.
5. No violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred
when Petro, as Borough Manager, negotiated the sale of a WOEMS owned
printer/copier in excess of $500.00, as authorization was granted by Council to
make the purchase at a workshop meeting of Council, albeit no official vote was
taken by Council.
In Re: John W. Petro, : File Docket: 12-035
Respondent : Date Decided: 1/27/15
: Date Mailed: 2/10/15
ORDER NO. 1652
1. John Petro (“Petro”) violated Section 1103(a) of the Public Official and Employee
Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), when he, in his capacity as a
Member and President of Borough Council (“Council”) for White Oak Borough
(“Borough”), Allegheny County, utilized the authority of his public position to amend
a Borough ordinance thereby enabling him to be eligible for appointment to the
position of Borough Manager, and subsequently participated in discussions of
Council resulting in his appointment as the Borough Manager.
2. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred
when Petro participated in discussions and actions of Council to approve funding
for the White Oak Emergency Management Services (“WOEMS”), a business with
which he and/or member(s) of his immediate family are associated; or when he
authorized payments to WOEMS from Borough funds, as there is insufficient
evidence to establish a clear use of office.
3. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred
when Petro utilized Borough employees and equipment for the benefit of WOEMS,
in that the quantified financial benefit is de minimis.
4. No violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred
when Petro, as Borough Manager, negotiated the sale of a WOEMS owned
printer/copier in excess of $500.00, as authorization was granted by Council to
make the purchase at a workshop meeting of Council, albeit no official vote was
taken by Council.
5. Per the Consent Agreement of the parties, Petro is directed to make payment in the
amount of $36,518.72 payable as follows: (a) $31,518.72 payable to the
Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics
th
Commission by no later than the thirtieth (30) day after the mailing date of this
Order; and (b) $5,000.00 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 by no
th
later than the thirtieth (30) day after the mailing date of this Order.
6. Per the Consent Agreement of the parties, Petro is further directed to not accept
any reimbursement, compensation or other payment from the Borough representing
a full or partial reimbursement of the amount paid in settlement of this matter.
7. Compliance with paragraphs 5 and 6 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,
___________________________
Name, Case #
Page 43
Nicholas A. Colafella, Chair