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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