HomeMy WebLinkAbout1656 Schmotzer
In Re: Martin Schmotzer, : File Docket: 14-003
Respondent : X-ref: Order No. 1656
: Date Decided: 5/5/15
: Date Mailed: 5/12/15
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
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 Martin Schmotzer, a public official/public employee in his capacity as a
Member \[of the Board of Directors\] of the Baldwin-Whitehall School District, violated
\[Sections 1103(a), 1105(b)(1), and 1105(b)(8)\] of the State Ethics Act (Act 93 of 1998)
when he utilized the authority of his office by participating in actions of the Baldwin-
Whitehall School Board to create the position of Supervisor of Projects for the \[Board of\]
School Directors and Special Assistant to the Superintendent, to which he was
subsequently appointed, thus resulting in a pecuniary benefit to Schmotzer; and when he
failed to disclose his office, directorship, or employment in any of his privately owned
businesses on Statements of Financial Interests filed for calendar years 2008 through
2012; and when he failed to identify an address/telephone number \[on his\] Statement of
Financial Interests filed for calendar year 2012.
II.FINDINGS:
1. Martin Schmotzer (“Schmotzer”) has served as a Member of the Board of Directors
(“Board”) of the Baldwin-Whitehall School District (“District”), Allegheny County ….
a. Schmotzer’s most recent terms on the Board were from December 12, 2012,
to November 19, 2013, and from December 4, 2013, to the present.
Schmotzer, 14-003
Page 2
1. Schmotzer was appointed at the Board’s December 12, 2012,
business meeting to fill the vacated seat created from the November
14, 2012, resignation of his brother/Board Member, John Schmotzer.
aa. The term was to expire on November 30, 2013.
2. Schmotzer won the November 5, 2013, election to a new four-year
term on the Board effective December 2013.
aa. Schmotzer was sworn into office at the December 4, 2013,
reorganization meeting.
b. Schmotzer served prior terms on the Board beginning in 1987.
2. Schmotzer also previously served as the Pennsylvania State Representative for the
nd
22 District from April 2012 to November 2012.
a. Schmotzer won a special election in April 2012 to fill the vacancy created by
the January 2011 resignation of Representative Chelsey Wagner after
Wagner was elected Allegheny County Controller.
3. The District is governed by a nine (9) Member Board.
a. The Board regularly schedules reorganization meetings for each year on the
first Wednesday of December to appoint a President, First Vice President,
Second Vice President, and Solicitor.
4. The Board holds two (2) regularly scheduled monthly meetings at the District’s
Administration Office, located at 4900 Curry Road, Pittsburgh, PA 15236, on the
first (workshop meeting) and second (business meeting) Wednesday of each
month.
a. Workshop and business meetings are attended by the Board and the Board
Secretary, Solicitor, Superintendent, Assistant Superintendent, and Business
Manager.
b. Special meetings are held on an as-needed basis.
c. Workshop, business, and special meetings are advertised/posted on the
District website and in the local circulatory (Tribune Review and/or
Pittsburgh Post Gazette).
5. The District maintains a website that posts Board information, including meeting
dates/times, meeting agendas, and the prior month’s/year’s minutes.
a. The website is accessible to the public.
6. The District provides the Board with a secured access website to access Board-
related information (i.e., meeting packets, correspondences, and administrative
reports).
a. The website is recognized as Electronic School Board (hereafter, “ESB”).
7. Meeting agendas are established via communication between the Board President
and the Superintendent.
a. Board Members are permitted to add items to the agenda.
Schmotzer, 14-003
Page 3
b. Meeting agendas are posted by the Board Secretary on ESB.
c. Meetings agendas are followed via ESB during the actual meetings.
8. Voting at Board meetings occurs electronically through ESB.
a. The electronic vote occurs following a verbal motion and second.
1. The electronic vote is projected to the public during the meeting.
b. Board Members are permitted to make motions from the floor that are not
listed on the ESB agenda.
1. An ensuing voice vote will occur should the motion receive a second.
9. The Board Secretary is responsible for the generation of Board meeting minutes.
a. The Board Secretary takes handwritten notes at meetings to assist in
generation of the minutes.
b. The minutes are made available through ESB for the Board Members to
review prior to the following regular monthly meeting.
c. The minutes are approved for accuracy at the subsequent business meeting
and posted on the District website upon approval.
10. The Superintendent’s office and the Board Secretary assemble and post, on ESB,
meeting information for review which includes the meeting agenda, the previous
month’s minutes, a financial report, and various correspondences.
a. Information posted by the Board Secretary on ESB is usually completed by
the Friday prior to the Board meeting.
11. The Business Office is responsible for the processing and management of District
payroll.
a. District administrators are salaried employees and do not submit timesheets
to document hours worked.
12. The Board does not routinely consult with the Business Office prior to funding new
hires/administrator positions.
13. The Board approves the District’s monthly payroll at each regular legislative Board
meeting.
a. Board Members receive the overall payroll expense for each month in a
financial report posted on ESB.
1. The report does not reflect payroll for each specific District employee.
2. The payroll expense is documented as a lump sum figure.
14. The Board is responsible for setting and defining policies for the administration/staff
in accordance with local/state/federal standards.
Schmotzer, 14-003
Page 4
a. District policies are posted and made available to the public on the District’s
website.
15. District Policy No. 004-BOG-1, Filling a Board Vacancy, sets forth the following
regarding the filling of a Board vacancy:
a. The Board has 30 days to fill a vacancy;
b. The Board is to advertise the vacancy, establish timelines, seek resumes of
applicants, and advertise the deadline for submission of applications;
c. Candidates must be qualified electors in the District;
d. Interviews of candidates are to be conducted at an advertised open meeting
with the Board Members asking each candidate the same question(s); and
e. The Board is to deliberate at an advertised meeting regarding the selection
of a candidate and a majority vote is needed for the candidate to be
appointed.
16. The Board, at times, has not followed District Policy No. 004-BOG-1.
a. The Board has, on occasion, appointed individuals to fill Board vacancies
without adhering to District Policy No. 004-BOG-1.
17. District Policies: 301-Creating a Position, Administrative Employees; 401-Creating a
Position, Professional Employees; and 501-Creating a Position, Classified
Employees, set forth that the Board shall determine the need to create an
administrative position, based on the recommendation of the Superintendent.
a. The Board has not consistently followed District Policy 301 for creating
positions.
18. Employees hired by the District are subject to background checks pursuant to the
provisions of the Pennsylvania Public School Code and District Policy 404.
a. Pennsylvania Public School Code Section 1-111 sets forth background
check requirements for prospective employees of public and private schools,
intermediate units, and area vocational-technical schools, including a
Pennsylvania State Police criminal records check and an FBI fingerprint
check.
b. District Policy 404-Employment of Professional Employees sets forth in part
the following:
No candidate shall be employed until such candidate has complied
with mandatory background check requirements for criminal history
and child abuse and the district has evaluated the results of that
screening process.
c. The District’s Human Resource Department files and maintains a material
check list at the District Administrative Offices for employees in accordance
with Pennsylvania Public School Code Section 1-111 and District Policy 404.
1. The material check list includes the application, certificates, medical
screenings, and mandatory background check forms.
Schmotzer, 14-003
Page 5
19. The District employed a Director of Operations until October 14, 2009, when the
Board unanimously approved the elimination of the position.
a. The Director of Operations was responsible for creating and monitoring the
annual District budget as well as performing day-to-day administrative
functions related to support staff, including but not limited to
management/oversight of the following:
1. Administrative and personnel functions;
2. Student transportation operations; and
3. Maintenance of buildings/grounds and operational functions
(custodial and maintenance, food services, clerical and
paraprofessional staff).
b. The Director of Operations reported directly to the Superintendent.
c. The District maintained a Business Manager, Human Resources Director,
Facilities Manager, Custodial Manager, Food Service Manager, and
Transportation Manager following the elimination of the Director of
Operations position.
20. In 2013, the Board discussed various non-instructional positions (i.e.,
transportation, facilities) and personnel issues within the District.
a. A majority of Board Members expressed concerns both during public
meetings and outside of public meetings that various non-instructional
issues were not being resolved by the administration.
b. The Board made no decisions to create any new positions \[or to\] reinstate
the Director of Operations position.
c. Schmotzer participated in these discussions as a Member of the Board.
21. Schmotzer had discussions with at least one Board Member, outside of Board
meetings, regarding the creation of an administrative position responsible for
overseeing the non-instructional matters at the District.
a. Schmotzer recommended himself for the position in these conversations.
b. The Board Member expressed that the position was needed within the
District, but was not supportive of appointing Schmotzer.
c. The Board did not pursue the creation of the position or consider the
appointment of Schmotzer for any District position following Schmotzer’s
conversations.
1. The topic of the position and/or Schmotzer’s hiring was never
addressed by the entire Board at that time.
22. In the late summer/early fall of 2013, Schmotzer arranged several meetings with
Board Members Nancy Crowder, Tracey Macek, and Lawrence Pantuso to discuss
Board-related matters at a local restaurant/bar, Tavern 51, located at 4604 Clairton
Blvd., Pittsburgh, PA 15236.
Schmotzer, 14-003
Page 6
a. Board Members Schmotzer, Crowder, Macek, and Pantuso are not part of
the same social circle and do not socialize outside of Board-related
meetings/events.
23. The Tavern 51 meetings included discussions concerning the various non-
instructional issues at the District.
a. During these meetings, Pantuso recommended that the upcoming Board
President take a more active role with the administration in addressing the
various non-instructional issues.
1. Crowder, Macek, and Schmotzer were supportive of Pantuso’s
recommendation.
b. The Board Members attending the Tavern 51 meetings did not discuss or
otherwise address creating a paid District employee position to oversee the
various non-instructional issues at the District following Pantuso’s
recommendation.
24. Schmotzer organized a second meeting at Tavern 51 in October 2013 with Board
Members Crowder, Macek, and Pantuso to further discuss Board-related matters.
a. The Members continued discussion about the various non-instructional
issues within the District.
25. During the second meeting, Schmotzer proposed creating a new position (hereafter,
“Position”) that would be responsible for overseeing non-instructional issues at the
District.
a. Pantuso expressed his support both to create the Position and for Schmotzer
to be appointed to the Position.
b. Crowder expressed her support to create the Position but was undecided in
appointing Schmotzer.
c. Macek expressed her support to create the Position but was not supportive
of Schmotzer’s appointment.
26. Prior to the meetings at Tavern 51, the District Organizational Chart, dated
September 12, 2012, was provided to Board Members by Superintendent Lutz to
identify the District’s administrative organizational structure, including in part as
shown below:
Board of Directors
Superintendent (Lutz)
a. No positions existed connecting the Superintendent and the Board of
Directors with the District organization.
Schmotzer, 14-003
Page 7
27. During the Tavern 51 meetings, Schmotzer presented an Organizational Chart that
illustrated the Position’s placement within the District’s organizational structure.
a. Schmotzer marked the Chart reflecting a new position of Assistant Board
Secretary/Assistant to Superintendent on the Chart between the Board of
Directors and the Superintendent.
b. A line was affixed from the Board of Directors to the Assistant Board
Secretary/Assistant to Superintendent and another line from the Assistant
Board Secretary/Assistant to Superintendent to the Superintendent as
follows:
Board of Directors
Asst Board Sec.
Asst to Supt.
Superintendent (Lutz)
c. Schmotzer marked circles surrounding the following District employees that
the Position was to oversee:
1. Director of Human Resources;
2. HR/Risk Manager;
3. Facilities Manager;
4. Custodial Manager;
5. Food Service Manager;
6. Cafeteria Managers;
7. Transportation Manager; and
8. Assistant Manager.
d. Schmotzer marked the Chart with a red marker, crossing out the date of
September 12, 2012, and marked in blue marker a new date of November
20, 2013.
e. The Chart was previously created by Superintendent Randal Lutz in
September 2012 to illustrate the structure of the Board and administration
within the District.
f. The Chart presented by Schmotzer identified the Position as reporting
directly to the Board and not to the Superintendent.
1. The only other positions that reported directly to the Board were the
Solicitor, Board Secretary, and Superintendent.
Schmotzer, 14-003
Page 8
2. Schmotzer modified the Chart by handwriting notes and phrases and
inserting the Position within the Chart.
28. At or about the time of the Tavern 51 meetings, Schmotzer contacted Board
President Nancy DiNardo and informed her that a majority of Board Members were
interested in creating a District position to oversee non-instructional issues at the
District.
a. Schmotzer informed DiNardo that the Board Members desired to appoint
Schmotzer to the Position.
b. Schmotzer expressed his interest in holding the Position if appointed.
1. Schmotzer did not seek DiNardo’s support for his appointment to the
Position.
2. Schmotzer and DiNardo did not discuss salary, other potential
candidates, or the hiring process for the Position.
c. Schmotzer did not identify the Board Members who he claimed were
supportive of creating the Position.
29. After the meetings at Tavern 51, Schmotzer contacted Crowder and Pantuso to
further discuss the Position.
a. Schmotzer indicated that a majority of Board Members were supportive of his
appointment to the Position.
b. Schmotzer informed Crowder and Pantuso that his starting annual salary for
the Position would be in the range of $120,000.00.
1. Crowder did not express support for Schmotzer’s recommended
salary range.
2. Pantuso expressed support for Schmotzer’s recommended salary
range.
c. Macek was not included in this or any other discussion(s) or meetings
regarding the Position and Schmotzer’s appointment.
30. A salary for the potential Position was never discussed by the Board at a formal
meeting nor was it discussed with District officials/administrators as to whether the
2013/2014 school year budget possessed sufficient funding for the Position.
a. The 2013/2014 school year budget, as approved at the June 12, 2013,
Board meeting, did not allocate funding for the Position.
b. Schmotzer voted affirmatively to approve the 2013/2014 school year budget.
31. Schmotzer and Board Member Ray Rosing met on at least two occasions prior to
the November 19, 2013, Board meeting to discuss the creation of the Position.
a. Rosing had been employed by Schmotzer at his State Representative office
in the spring of 2012 as an assistant.
b. Rosing also performed contracting work for Schmotzer’s general contracting
businesses.
Schmotzer, 14-003
Page 9
32. Schmotzer expressed his intent to be appointed to the Position during his
discussions with Rosing.
a. Schmotzer asserted to Rosing that he could make an immediate impact if
appointed to the Position.
b. Rosing expressed to Schmotzer that he (Rosing) would support Schmotzer’s
appointment to the Position.
c. Rosing informed Schmotzer that other Board Members were supportive of
his appointment to the Position.
1. Rosing previously spoke with Board Member Diana Kazour about
recommending Schmotzer for the Position.
2. Kazour expressed her support to Rosing for appointing Schmotzer to
the Position.
33. Schmotzer contacted DiNardo on or by November 5, 2013, requesting a third Board
meeting for November to discuss the restructuring of the upcoming Board.
a. Schmotzer did not disclose to DiNardo that the restructuring was to appoint
new Board Members and to create the Position and appoint Schmotzer to
the Position.
34. DiNardo approved Schmotzer’s request for a third November meeting.
a. DiNardo informed Schmotzer that she would resign her seat as the Board
President, under the belief that the third meeting was focused on
restructuring the Board.
1. DiNardo’s term was set to expire at the end of November 2013.
35. The Board did not have discussions or plans to reorganize prior to Schmotzer’s
request for a third November meeting.
a. The Board had its regularly scheduled reorganization meeting set for
December 4, 2013.
1. Recently elected Board Members Schmotzer, Elliot J. Rambo, Karen
L. Brown, and David J. Solenday were to take office at the December
4, 2013, meeting.
36. The Board did not discuss at any meeting (workshop, business, special, or
executive session) prior to November 19, 2013, the creation of the Position or the
employment of Schmotzer by the District.
a. The appointment to the Position was not listed on any ESB meeting agenda
in 2013.
37. DiNardo informed the Superintendent’s Office to schedule a third meeting for
November for the main purpose of reviewing the 2012/2013 audit report and to take
action on personnel issues.
a. Superintendent Lutz was not informed that the Board planned to reorganize
or take action in creating the Position.
Schmotzer, 14-003
Page 10
38. At the November 6, 2013, Board meeting, DiNardo announced that a third Board
th
meeting was to be scheduled following the November 13 meeting.
a. Board Member George Pry announced to the Board that he would not attend
th
the third meeting and that the November 13 meeting would be his last
meeting.
1. Pry’s term was set to expire at the end of November 2013.
39. On or about November 16, 2013, Superintendent Lutz directed the law firm of Bruce
Dice and Associates to submit the Proof of Advertisement for the November 19,
2013, meeting to the Tribune Review.
a. The advertisement was posted in the November 16, 2013, edition of the
Tribune Review.
b. The advertisement did not contain or mention the reorganization of the
Board, the creation of the Position, or the appointment of Schmotzer to the
Position.
c. The advertisement listed the purpose of the meeting as “general business
purposes and shall be a voting meeting.”
40. Schmotzer discussed the subject of creating the Position and solicited support for
his appointment to the Position with at least five Board Members on various
occasions prior to the November 19, 2013, meeting.
a. Schmotzer informed Board Members that the majority of the other Members
of the Board were supportive of his appointment to the Position.
b. The Board did not meet as a group to discuss Schmotzer’s appointment, but
rather all conversations/discussions were filtered through Schmotzer.
41. In the weeks leading up to the November 19, 2013, special meeting, Schmotzer
contacted District resident Patricia Nixon and inquired about her interest in filling a
vacancy on the Board, to which she agreed.
a. Board Member Kevin Fischer resigned his position at the November 13,
2013, meeting in order to serve on Baldwin Borough Council.
1. Fischer’s term on the Board would have expired on November 30,
2015.
b. Schmotzer knew Nixon from having served with her on the Democratic
Committee for multiple years.
c. Nixon did not attend any 2013 Board meetings leading up to the November
19, 2013, meeting.
d. Nixon did not previously serve on the Board nor did she hold any prior
positions within the District.
e. Schmotzer did not inform Nixon of his intent to resign from the Board in order
to be appointed to the Position.
Schmotzer, 14-003
Page 11
42. Schmotzer arranged a meeting with District resident Elliot Rambo at a local
McDonald’s restaurant approximately one (1) week prior to the November 19, 2013,
special meeting.
a. Schmotzer contacted Rambo for the purpose of soliciting Rambo to fill
Schmotzer’s Board position following his (Schmotzer’s) resignation from the
Board.
b. Schmotzer’s term of office was set to end on November 30, 2013.
43. At the meeting Rambo agreed to Schmotzer’s request for him to attend the
November 19, 2013, meeting for the purpose of being appointed to Schmotzer’s
vacancy.
a. Schmotzer informed Rambo that he was also seeking to appoint Nixon to the
Board to fill the vacancy left from Fischer’s resignation.
b. Schmotzer informed Rambo that the Board was to take action by creating the
Position at the November 19, 2013, meeting.
1. Schmotzer explained that the purpose of the Position was to serve as
a liaison between the Board and the Superintendent, as well as to
oversee special projects within the District.
2. Schmotzer stated that a majority of Board Members were supportive
of his appointment to the Position.
c. Rambo expressed that he was supportive of Schmotzer’s concept to create
the Position.
d. Schmotzer expressed to Rambo his interest in being appointed to the
Position.
1. Schmotzer conveyed to Rambo that Schmotzer’s experience on the
Board would be beneficial to him in the Position.
2. Schmotzer did not supply Rambo with material detailing the Position’s
job description and/or employment contract.
44. After the November 19, 2013, meeting was scheduled, Schmotzer arranged with
Judge James Motznik (District Court 05-2-38) to attend the special meeting for the
purpose of administering an oath of office to Rambo and Nixon.
45. During or about October 2013, Board Members Rosing and Crowder inquired of
Bruce Dice, the District Solicitor, about the creation of the Position.
a. The Position had yet to be discussed by the Board as a whole.
46. Individuals involved in the creation of the job description for the Position were
Schmotzer, Rosing, Crowder, and Dice.
a. Schmotzer and Rosing discussed the Position and what it was to entail,
which resulted in Rosing creating an initial draft of the job description.
b. Rosing directed Dice to create the formal job description after meeting with
Schmotzer and without having first discussed creation of such with the
Board.
Schmotzer, 14-003
Page 12
c. Schmotzer arranged a meeting with Crowder at a local McDonald’s
restaurant on or before November 19, 2013, to review what Schmotzer
identified as the Position’s job description.
1. Crowder made various alterations to the job description following her
review with Schmotzer.
47. Prior to the November 19, 2013, special meeting, the Board as a whole did not have
knowledge of any actions to be taken at the meeting in regard to the Position.
48. Solicitor Dice’s billing statements reflect discussion and research regarding the
creation of the Position as early as October 28, 2013, and continuing through
thththththth
November 5, 6, 14, 15, 18, and 19 of 2013.
a. During October and November of 2013, Solicitor Dice billed the District the
total amount of $2,937.00, resulting from 26.7 hours of professional services
provided relating specifically to the creation of the Position.
b. The Board did not authorize or otherwise direct Dice to take any action as it
related to the Position.
c. Any services Dice billed the District for in relation to the Position were done
at the direction of Schmotzer.
49. The Position job description as drafted by Rosing listed the Position’s title, work
location, reporting requirements, minimum qualifications, and goals ….
a. The job description that was generated required experience and
qualifications, including, in part, the following:
1. A bachelor’s degree;
2. Ten years of knowledge in public education with progressive
experience at the local and state levels;
3. Administrative experience with expertise in problem solving;
4. Experience in organizing and working with key personnel in complex
organizations;
5. Ability to manage several tasks simultaneously and get results; and
6. Provide the Board with factual and pertinent information to make
informed decisions.
aa. The job description requirements matched Schmotzer’s prior
experience.
b. The job description also required knowledge, skills and/or abilities, including,
in part, the following:
1. Ability to read and interpret documents such as safety rules,
operating and maintenance instructions, and procedures manuals as
well as the ability to draft routine reports, write correspondences and
to speak effectively before the School Board, staff, and the
community;
Schmotzer, 14-003
Page 13
2. Ability to add, subtract, multiply, and divide in all units of measure,
using whole numbers, common fractions and decimals, compute rate,
ratios and percentages; and
3. Ability to apply common sense understanding and carry out
inspections furnished in written, oral, or diagram form, to include the
ability to deal with multiple problems.
aa. The job description requirements regarding knowledge, skills,
and abilities matched Schmotzer’s skill set.
50. An employment contract for the Position was drafted by Dice after discussion with
Schmotzer and Rosing.
a. The Board did not discuss or direct Dice to draft any part of Schmotzer’s
employment contract for the Position.
b. Dice billed the District for work performed in relation to Schmotzer’s
employment contract for the Position.
51. Without any input from Board Members, Schmotzer and Rosing generated
Schmotzer’s employment contract, which included the following:
a. The employment was to be for a sixty (60) month term;
b. The starting annual salary was to be $120,000.00;
c. All salary increases were to be consistent with the negotiated Act 93
employee salary increases;
d. All other fringe benefits awarded were to be consistent with Act 93
employees; and
e. Inclusion of a clause specifying that the District was responsible for a
buyout, in full, of the remainder of time left in the contract together with the
benefits awarded, in the event the Position was eliminated/employee
terminated without cause.
1. Payment was to be made within thirty (30) days of the termination
and/or elimination of the job.
aa. Per the contract, failure to make payment in the thirty (30) day
period was to result in the addition of a 10% penalty of the
remaining contract value, plus benefits.
52. On or by the morning of November 19, 2013, DiNardo informed Dice of her intent to
resign her seat as Board President at the evening’s special meeting.
a. DiNardo only informed Schmotzer and the Solicitor of her pending
resignation as the Board President.
b. The remaining Board Members had no knowledge of DiNardo’s intent to
resign as Board President.
53. Schmotzer created an alternate agenda for the November 19, 2013, special
meeting which identified the following actions to occur:
Schmotzer, 14-003
Page 14
a. Resignation of Board President Nancy Scuilli DiNardo and the appointment
of Larry Pantuso to said position;
b. The appointment of Ray Rosing as the First Vice President;
c. The appointment of Patricia Nixon to fill the vacancy created by the
resignation of Kevin Fischer;
d. Schmotzer’s resignation from the Board to be followed immediately by the
appointment of Elliot Rambo to fill Schmotzer’s vacancy;
1. Schmotzer’s term would have ended on November 30, 2013.
e. The resolution for, and vote to create, the Position; and
f. The appointment of Schmotzer to the Position.
54. Prior to the November 19, 2013, special meeting, the Board Members,
administration, and public had no knowledge of the alternate agenda, with the
exception of Schmotzer.
a. Meeting agendas are to be posted on ESB.
1. The actions listed on the alternate agenda were not posted on the
ESB meeting agenda.
55. Schmotzer provided the alternate agenda to each Board Member, with the
th
exception of Macek, prior to the start of the November 19 special meeting.
a. The alternate agenda was placed on the Board table at each Board
Member’s seat.
b. Administrators were not provided with the alternate agenda.
56. Immediately prior to the start of the November 19, 2013, special meeting,
Schmotzer confronted Crowder and questioned her whether or not she supported
his appointment to the Position.
a. Crowder was indecisive in her answer to Schmotzer.
b. Schmotzer informed Crowder that he believed that a majority of Board
Members were supportive of his appointment.
c. Schmotzer informed Crowder that he preferred the Board’s vote to be
unanimous to reflect full support in the decision.
57. The November 19, 2013, special meeting was attended by Board Members
Schmotzer, Crowder, DiNardo, Kazour, Macek, Pantuso, and Rosing.
a. Board Member George Pry did not attend.
b. Nixon, Rambo, and Judge James Motznik attended the meeting at
Schmotzer’s direction.
58. At the beginning of the November 19, 2013, special meeting, DiNardo resigned her
seat as President of the Board.
Schmotzer, 14-003
Page 15
a. Immediately following DiNardo’s resignation, Schmotzer motioned, seconded
by Kazour, to appoint Pantuso as President of the Board.
b. The motion carried unanimously with Schmotzer voting.
c. Schmotzer was the only Board Member aware of DiNardo’s intent to resign,
prior to the November 19, 2013, special meeting.
59. Schmotzer motioned, and voted affirmatively, to appoint Pantuso as the Board
President at a time when he had a reasonable expectation that Pantuso was
supportive of Schmotzer’s appointment to the Position.
a. Pantuso had expressed his support to appoint Schmotzer to the Position
during discussions at the Tavern 51 restaurant.
60. Immediately following Pantuso’s appointment as Board President, Schmotzer
motioned, seconded by Kazour, to appoint Rosing as the First Vice President of the
Board.
a. The motion carried via 6-1 vote with Macek being the lone dissenting vote.
61. Schmotzer motioned and voted affirmatively to appoint Rosing as the Board First
Vice President at a time when he had preexisting knowledge that Rosing was
supportive of Schmotzer’s appointment to the Position.
62. Immediately following Rosing’s appointment as First Vice President of the Board,
Schmotzer motioned, seconded by DiNardo, to appoint Patricia Nixon to fulfill the
two-year term of former Board Member Kevin Fischer.
a. The motion carried via 6-1 vote with Macek being the lone dissenting vote.
b. Judge Motznik immediately administered the oath of office to Nixon following
the vote.
1. Judge Motznik was present at the special Board meeting so that
Nixon could be immediately seated as a Board Member.
63. Schmotzer motioned to appoint Nixon to the Board without the Board evaluating or
discussing appointments of any other candidates to fill Fischer’s vacancy.
a. The remaining Board Members had no prior knowledge that Nixon was
interested in, or being nominated to fill, Fischer’s vacancy.
1. The District had not advertised the vacancy, sought resumes,
conducted interviews, etc., as is required by District Policy No. 004-
BOG-1.
64. The original ESB agenda action items were followed immediately after Nixon’s
appointment to the Board.
65. Schmotzer submitted his resignation from the Board following the completion of the
action items on the original ESB agenda.
a. The Board unanimously accepted Schmotzer’s resignation.
Schmotzer, 14-003
Page 16
66. Immediately following Schmotzer’s resignation, DiNardo motioned, seconded by
Rosing, to appoint Rambo to fill the vacant Board seat created by Schmotzer’s
resignation.
a. The Board voted unanimously to appoint Rambo to fill the vacant seat
created by Schmotzer’s resignation.
1. Rambo was filling Schmotzer’s term that was set to expire on
November 30, 2013.
b. Judge Motznik immediately administered the oath of office to Rambo.
1. Judge Motznik attended the meeting so that Rambo could be
immediately seated as a Board Member.
c. Rambo would only serve as Schmotzer’s replacement for one (1) meeting
(November 19, 2013) as he would take his elected position on the Board at
its December 2013 meeting.
67. Following Rambo’s appointment, Dice presented the Board with the Position
resolution and job description, as well as Schmotzer’s employment contract.
a. Dice had advised the Board at the night of the meeting that Schmotzer’s
appointment was legal since Schmotzer resigned from the Board.
b. Crowder, Nixon, and DiNardo gave public comments expressing their
support for the Position.
c. The Board did not review and/or discuss the Position resolution, job
description, or employment contract prior to November 19, 2013.
68. After Dice read aloud the Position resolution, Pantuso motioned, seconded by
Kazour, to adopt the resolution creating the Position titled as Supervisor of Projects
for the Board of School Directors and Special Assistant to the Superintendent.
a. The motion carried via 7-1 vote with Macek being the lone dissenting vote.
69. Immediately following the action to create the Position, Kazour motioned, seconded
by Rosing, to appoint Schmotzer to the Position.
a. The motion carried via 7-1 vote with Macek being the lone dissenting vote.
b. The Board did not discuss Schmotzer’s potential employment nor review
Schmotzer’s employment contract at any meeting of the Board prior to the
th
November 19 meeting.
70. Newly-appointed Board Members Nixon and Rambo voted affirmatively to create
the Position and to appoint Schmotzer to the Position.
71. Schmotzer resigned from the Board at the November 19, 2013, special meeting in
order to be appointed to the Position.
a. Schmotzer resigned in order to become eligible for appointment to the
Position.
1. Schmotzer solicited support from the Board Members to be appointed
to the Position.
Schmotzer, 14-003
Page 17
b. Schmotzer had won a seat on the Board during the November 5, 2013,
general election and was expected to take office for a new four-year term in
December 2013.
72. Pennsylvania Public School Code Section 3-324 sets forth in part that “No school
director shall, during the term for which he was elected or appointed, as a private
person engaged in any business transaction with the school district in which he is
elected or appointed, be employed in any capacity by the school district in which he
is elected or appointed, or receive from such school district any pay for services
rendered to the district except as provided in this act ….”
a. Schmotzer was prohibited from holding the dual position of Board Member
and District employee, in accordance with Pennsylvania Public School Code
Section 3-324.
73. Schmotzer resigned as a Board Member at the November 19, 2013, special
meeting because of his knowledge of his pending appointment to the Position at a
later point in the meeting.
a. Schmotzer was aware that he was to be appointed to the Position at the
November 19, 2013, special meeting based on private discussions he held
with Board Members.
1. Schmotzer created the alternate agenda which documented his
appointment as an official action to occur at the meeting.
2. Schmotzer’s employment contract which was presented at the
November 19, 2013, special meeting included, in computer print,
Schmotzer’s name as an employee on the signature page.
th
74. Schmotzer’s employment contract was signed the night of the November 19
meeting by Schmotzer (employee), Pantuso (Board President), DiNardo (witness),
and attest by Georgann Helman (Assistant Board Secretary).
75. Schmotzer was employed in the Position beginning November 20, 2013.
th
76. Schmotzer began employment at the District on November 20 without having
completed all of the mandatory background check requirements for criminal history
and child abuse as required by District Policy 404-Employment of Professional
Employees and Pennsylvania Public School Code Section 1-111.
a. Superintendent Lutz informed Schmotzer that he did not submit all of his
clearance/background checks.
b. Schmotzer informed Lutz that he would work from the District board room
until the proper clearances were completed.
1. Schmotzer completed his required Pennsylvania State Police criminal
record check and fingerprint clearance on November 22, 2013.
2. The District did not have a child abuse or completed arrest/conviction
report certification form on file for Schmotzer.
77. On his first day of employment, Schmotzer inquired with the District Business
Manager regarding the next scheduled pay date.
Schmotzer, 14-003
Page 18
a. The Business Manager informed Schmotzer that the next scheduled pay
date was November 22, 2013.
b. Schmotzer requested to be included on the next payroll cycle.
c. The Business Manager acknowledged Schmotzer’s request.
78. The District issued Schmotzer payroll check #602325, dated November 22, 2013, in
the gross amount of $4,568.96 resulting from his employment in the Position.
a. Schmotzer cashed District paycheck #602325 on November 22, 2013, at the
PNC Bank Whitehall branch location.
b. District payroll, at times, issues paychecks in advance.
1. The District issued Schmotzer this paycheck in advance of him
completing his first ten days of employment.
2. Schmotzer received a full two-week paycheck from the District after
being employed for only two days.
79. By December 3, 2013, fourteen (14) days after Schmotzer commenced
employment, Board President Pantuso contacted Schmotzer and requested his
resignation from the Position.
a. Pantuso explained that the Position was creating a negative effect within the
administration and that it was in the District’s best interests for Schmotzer to
resign.
1. There was considerable media coverage questioning Schmotzer’s
appointment.
b. Schmotzer reluctantly agreed to Pantuso’s request.
80. On December 4, 2013, Schmotzer submitted to the administration his resignation
from the Position, effective December 3, 2013.
a. Schmotzer’s resignation letter cited in part the following:
…There is no question that the Board’s action to create this position and hire me was
valid and well-intended. The Resolutions were thoroughly reviewed and approved by
the Solicitor’s office. Further, the legality of the action was confirmed to the media by
Tim Eller from the Pennsylvania Department of Education in a newspaper article
published in the Pittsburgh Tribune Review on November 21, 2013….
81. Immediately following his resignation from the Position, Schmotzer was sworn in as
a Member of the Board.
a. Schmotzer won the November 5, 2013, general election to serve a four-year
term on the Board.
b. Schmotzer claimed his resignation on November 19, 2013, was only as to
his term to end on November 30, 2013.
c. Schmotzer continues to hold office as a Member of the Board.
Schmotzer, 14-003
Page 19
82. At the Board’s March 12, 2014, business meeting, the Board unanimously approved
the creation of a Director of Operations position to oversee facilities, transportation,
and the food service departments.
a. Schmotzer voted affirmatively for the creation of the Director of Operations
position.
83. Immediately following the creation of the Director of Operations position, the Board
voted in favor, via 8-1 vote, to appoint Facilities Manager Paul Svirbal to the
Director of Operations position.
a. Schmotzer was the lone dissenting vote.
84. Schmotzer orchestrated the creation of the Position for the purpose of him being
appointed to fill the Position.
a. No advertisement was placed in any local circulars or on the internet
regarding the Position.
b. No resumes were received for the Position.
c. No interviews were conducted for the Position.
d. Schmotzer resigned from the Board immediately prior to the vote to create
the Position.
e. Schmotzer’s employment contract was presented to the Board for vote at the
same meeting at which the Position was created.
85. Schmotzer, a public official/public employee in his capacity as a Board Member for
the District, realized a private pecuniary benefit when he utilized the authority of his
public office to create the Position and effectuate his appointment to the Position
through the following actions:
a. Initiating action to effectuate the creation of the Position;
b. Expressing his intent to be appointed to the Position to fellow Board
Members during private discussions prior to any official Board action;
c. Engaging in private discussions at separate times with Board Members to
garner support for his appointment to the Position;
d. Directing Nixon and Rambo to attend the November 19, 2013, meeting to be
appointed to the Board;
e. Directing Judge Motznik to attend the November 19, 2013, meeting to
administer the oaths of office for newly-appointed Board Members Nixon and
Rambo, so that both could participate in the vote of the Board with the
knowledge that at least Rambo was supportive of the creation of the Position
and appointment of Schmotzer; and
f. Resigning from his position on the Board at a time he had a reasonable
expectation that the resignation was needed in order for the Board to appoint
him to the Position.
THE FOLLOWING FINDINGS RELATE TO DEFICIENCIES ON SCHMOTZER’S
STATEMENT OF FINANCIAL INTERESTS (“SFI”) FORMS.
Schmotzer, 14-003
Page 20
86. Schmotzer was required to file SFIs for calendar years 2008 through 2012 as a
Board Member for the District pursuant to the provisions of Section 1104(a) of the
State Ethics Act.
87. On February 21, 2014, an SFI compliance review was conducted for the District ….
a. Schmotzer filed SFIs for calendar years 2008, 2009, 2010, 2011, and 2012
for his position as a Board Member.
88. Schmotzer is the owner of the following businesses: Equitable Window Company;
AAA Merchant Services of Pennsylvania; AAA One Call Handyman; and BABS and
Associates.
a. The Pennsylvania Department of State has applications for fictitious names
for Equitable Window Company, AAA Merchant Services of Pennsylvania,
and AAA One Call Handyman on file.
1. Entity No. 2193855 was assigned to Equitable Window Company.
2. Entity No. 3048671 was assigned to AAA Merchant Services of
Pennsylvania.
3. Entity No. 3090612 was assigned to AAA One Call Handyman.
b. Schmotzer is listed as the person owning or interested in the business on the
applications for fictitious names, and his signature appears on same for all
the entities listed above.
c. The Pennsylvania Department of State does not have an application for a
fictitious name for BABS and Associates.
89. Section 1105(b)(1), Required Information, of the State Ethics Act requires the
disclosure of the filer’s name, address, and public position.
a. Schmotzer neglected to disclose his address on his SFI form for calendar
year 2012.
90. Section 1105(b)(8), Required Information, of the State Ethics Act requires the
disclosure of any office, directorship or employment of any nature whatsoever in
any business entity (Block 13).
a. Schmotzer neglected to disclose his office, directorship or employment of
any nature whatsoever in Equitable Window Company, AAA One Call
Handyman, AAA Merchant Services of Pennsylvania, and BABS and
Associates in Block 13 of his SFI forms for calendar years 2008 through
2012.
b. Schmotzer disclosed his financial interests in Equitable Window Company,
AAA One Call Handyman, AAA Merchant Services of Pennsylvania, and
BABS and Associates in Block 14 – “Financial Interest in any Legal Entity in
Business for Profit” of his SFIs filed for the 2008 through 2012 calendar
years.
c. Schmotzer disclosed Equitable Window Company, AAA One Call
Handyman, AAA Merchant Services of Pennsylvania, and BABS and
Schmotzer, 14-003
Page 21
Associates as sources of income in Block 10 – “Direct or Indirect Sources of
Income” of his SFIs filed for the 2008 through 2011 calendar years.
91. On December 12, 2014, Schmotzer filed with the State Ethics Commission complete
and accurate SFIs for calendar years 2008 through 2012.
III.DISCUSSION:
As a Member of the Baldwin-Whitehall School District (“School District”) Board of
Directors (“Board”) from December 12, 2012, to November 19, 2013, and from December
4, 2013, to the present, Respondent Martin Schmotzer, also referred to herein as
“Respondent,” “Respondent Schmotzer,” and “Schmotzer,” has been a public official
subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq.
The allegations are that Schmotzer violated Sections 1103(a), 1105(b)(1), and
1105(b)(8) of the Ethics Act: (1) when he utilized the authority of his office by participating
in actions of the Board to create the position of Supervisor of Projects for the Board of
School Directors and Special Assistant to the Superintendent, to which he was
subsequently appointed, thus resulting in a pecuniary benefit to himself; (2) when he failed
to disclose his office, directorship, or employment in any of his privately owned businesses
on Statements of Financial Interests (“SFIs”) filed for calendar years 2008 through 2012;
and (3) when he failed to identify an address/telephone number on his SFI filed for
calendar year 2012.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a)Conflict of interest.—
No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
The term "conflict of interest" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest."
Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
family is associated. The term does not include an action
having a de minimis economic impact or which affects to the
same degree a class consisting of the general public or a
subclass consisting of an industry, occupation or other group
which includes the public official or public employee, a
member of his immediate family or a business with which he or
a member of his immediate family is associated.
65 Pa.C.S. § 1102.
Schmotzer, 14-003
Page 22
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 1105(b) of the Ethics Act and its subsections detail the financial disclosure
that a person required to file the SFI form must provide.
Section 1105(b)(1) of the Ethics Act requires the filer to disclose on the SFI his
name, address, and public position.
Section 1105(b)(8) of the Ethics Act requires the filer to disclose on the SFI any
office, directorship or employment in any business entity.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are set forth above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
Schmotzer has served as a Member of the Board at various times since 1987. On
December 12, 2012, Schmotzer was appointed to fill a vacant seat on the Board for a term
that was to expire on November 30, 2013.
The Board consists of nine Members. The Board holds two regularly scheduled
meetings per month, and special meetings are held as necessary. The Board regularly
schedules a reorganization meeting for the first Wednesday of December to appoint a
President, First Vice President, Second Vice President, and Solicitor.
The School District employed a Director of Operations until October 14, 2009, when
the Board approved the elimination of the position. The responsibilities of the Director of
Operations had included performing day-to-day administrative functions related to support
staff.
In 2013, Schmotzer participated in Board discussions regarding various non-
instructional positions and personnel issues within the School District. A majority of Board
Members expressed concerns both during and outside of public meetings that various non-
instructional issues were not being resolved by the School District administration.
Schmotzer had discussions with a Board Member outside of Board meetings regarding the
creation of an administrative position responsible for overseeing the non-instructional
matters at the School District. Schmotzer recommended himself for the position in those
discussions. The Board Member expressed that the position was needed within the
School District but was not supportive of appointing Schmotzer to the position. The Board
did not address the creation of such a position or consider the appointment of Schmotzer
for any School District position at that time.
In the late summer or early fall of 2013, Schmotzer arranged several meetings at
Tavern 51, a local restaurant, with Board Members Nancy Crowder (“Crowder”), Tracey
Macek (“Macek”), and Lawrence Pantuso (“Pantuso”) to discuss Board-related matters.
Schmotzer, Crowder, Macek, and Pantuso are not part of the same social circle and do not
socialize outside of Board-related meetings or events. The meetings at Tavern 51
included discussions concerning the various non-instructional issues at the School District.
During these meetings, Pantuso recommended that the upcoming Board President take a
more active role with the administration in addressing the various non-instructional issues.
Crowder, Macek, and Schmotzer were supportive of Pantuso’s recommendation.
At a meeting at Tavern 51 in October 2013, Schmotzer proposed creating a new
position (the “Position”), which at that time he titled “Assistant Board Secretary/Assistant to
Schmotzer, 14-003
Page 23
Superintendent,” that would be responsible for overseeing non-instructional issues at the
School District. Schmotzer presented a School District Organizational Chart (“Chart”) that
he marked to reflect the Position as reporting directly to the Board and overseeing various
manager or director positions. Schmotzer marked the Chart with a new date of November
20, 2013. Pantuso, Crowder, and Macek each expressed support for the creation of the
Position. Although Pantuso expressed his support for Schmotzer to be appointed to the
Position, Crowder was undecided and Macek was not supportive as to Schmotzer’s
appointment.
At or about the time of the meetings at Tavern 51, Schmotzer contacted Board
President Nancy DiNardo (“DiNardo”) and informed her that a majority of Board Members
were interested in creating the Position. Schmotzer also informed DiNardo that the Board
Members desired to appoint Schmotzer to the Position, and he expressed his interest in
being appointed to the Position. Schmotzer did not identify the Board Members who he
claimed were supportive of creating the Position, and he did not seek DiNardo’s support
for his appointment to the Position.
After the meetings at Tavern 51, Schmotzer contacted Crowder and Pantuso to
further discuss the Position. Schmotzer indicated that a majority of Board Members were
supportive of his appointment to the Position, and he informed Crowder and Pantuso that
his starting annual salary for the Position would be in the range of $120,000.00. Pantuso
expressed support for Schmotzer’s recommended salary range, but Crowder did not.
On November 5, 2013, Schmotzer was elected to a four-year term on the Board that
was to begin in December 2013. The Board had its regularly scheduled reorganization
meeting set for December 4, 2013, at which time the recently-elected Board Members,
including Schmotzer and Elliot J. Rambo (“Rambo”), were to take office.
On or by November 5, 2013, Schmotzer contacted DiNardo and requested a third
Board meeting for November to discuss the restructuring of the Board. The Board did not
have plans to reorganize prior to Schmotzer’s request. Schmotzer did not disclose to
DiNardo that the restructuring was to appoint new Board Members and to create the
Position and appoint Schmotzer to the Position. DiNardo, who was under the belief that
the third November meeting was to be focused on restructuring the Board, approved
Schmotzer’s request. DiNardo’s term was set to expire at the end of November 2013, and
she informed Schmotzer that she would resign her position as Board President.
An advertisement for a November 19, 2013, meeting of the Board (the “Special
Meeting”) was posted in the November 16, 2013, edition of the Tribune Review
newspaper. The advertisement listed general business as the purpose of the meeting and
did not mention the reorganization of the Board, the creation of the Position, or the
appointment of Schmotzer to the Position. The Board did not discuss at any meeting prior
to November 19, 2013, the creation of the Position or the employment of Schmotzer by the
School District.
Schmotzer discussed the subject of creating the Position and solicited support for
his appointment to the Position in conversations with at least five Board Members on
various occasions prior to the Special Meeting. Schmotzer informed Board Members that
the majority of the other Board Members were supportive of his appointment to the
Position.
On at least two occasions prior to the Special Meeting, Schmotzer and Board
Member Ray Rosing (“Rosing”) met to discuss the creation of the Position. During their
discussions, Schmotzer asserted that he could make an immediate impact if appointed to
the Position and expressed his intent to be appointed to the Position. Rosing, who
performed contracting work for Schmotzer’s general contracting businesses, stated that he
Schmotzer, 14-003
Page 24
would support Schmotzer’s appointment to the Position. Rosing also informed Schmotzer
that other Board Members were supportive of his appointment to the Position.
In the weeks leading up to the Special Meeting, Schmotzer contacted School
District resident Patricia Nixon (“Nixon”) and inquired about her interest in filling a vacancy
on the Board. The vacancy was the result of the resignation of Board Member Kevin
Fischer (“Fischer”) at the November 13, 2013, Board meeting. Schmotzer knew Nixon as a
result of serving with her on the Democratic Committee. Schmotzer did not inform Nixon of
his intent to resign from the Board in order to be appointed to the Position. Nixon agreed
to fill the vacancy.
Approximately one week prior to the Special Meeting, Schmotzer arranged a
meeting with Rambo at a local McDonald’s restaurant. Schmotzer told Rambo that the
Board was to take action by creating the Position at the Special Meeting. Schmotzer
explained that the purpose of the Position was to serve as a liaison between the Board and
the Superintendent as well as to oversee special projects within the School District, and he
stated that a majority of Board Members were supportive of his appointment to the
Position. Schmotzer told Rambo of his interest in being appointed to the Position, and
Rambo expressed his support for Schmotzer’s concept to create the Position.
Schmotzer’s term on the Board was set to end on November 30, 2013, and he
asked Rambo to attend the Special Meeting for the purpose of being appointed to fill a
vacancy that would be created by Schmotzer’s resignation from the Board at the Special
Meeting. Rambo would only serve as Schmotzer’s replacement for one meeting—the
Special Meeting—as Rambo would take his own elected position on the Board at its
regularly scheduled December 4, 2013, reorganization meeting. Rambo agreed to
Schmotzer’s request. Schmotzer arranged for Judge James Motznik (“Judge Motznik”) to
attend the Special Meeting for the purpose of administering an oath of office to Rambo and
Nixon.
Schmotzer, Rosing, Crowder, and School District Solicitor Bruce Dice (“Solicitor
Dice”) were involved in the creation of the job description for the Position. Schmotzer and
Rosing discussed the Position and what it was to entail, which resulted in Rosing creating
an initial draft of the job description. The job description drafted by Rosing set forth
requirements for experience, qualifications, knowledge, skills, and abilities that matched
those possessed by Schmotzer. Rosing directed Solicitor Dice to create the formal
Position job description after meeting with Schmotzer and without having first discussed
the creation of such with the Board. During October 2013 and November 2013, Solicitor
Dice billed the School District the total amount of $2,937.00 as a result of providing 26.7
hours of professional services relating specifically to the creation of the Position. Any
services that Solicitor Dice billed the School District for in relation to the Position were
performed at the direction of Schmotzer. The Board did not authorize or otherwise direct
Solicitor Dice to take any action as it related to the Position. On or before November 19,
2013, Schmotzer met with Crowder to review the Position job description.
Without any input from other Board Members, Schmotzer and Rosing generated an
employment contract for Schmotzer for the Position, which included a sixty-month term of
employment and a starting annual salary of $120,000.00. Solicitor Dice drafted an
employment contract for Schmotzer for the Position after discussion with Schmotzer and
Rosing. The Board did not direct Solicitor Dice to draft any part of Schmotzer’s
employment contract for the Position. Solicitor Dice billed the School District for work
performed in relation to Schmotzer’s employment contract for the Position.
Schmotzer created an alternate agenda for the Special Meeting, which identified
the following actions to occur: (1) the resignation of DiNardo as Board President and the
appointment of Pantuso as Board President; (2) the appointment of Rosing as the First
Vice President; (3) the appointment of Nixon to fill the vacancy created by the resignation
Schmotzer, 14-003
Page 25
of Fischer; (4) the resignation of Schmotzer from the Board, to be immediately followed by
the appointment of Rambo to fill the newly- created vacancy; (5) the resolution for and vote
to create the Position; and (6) the appointment of Schmotzer to the Position. Prior to the
Special Meeting, the other Board Members, the School District administration, and the
public had no knowledge of Schmotzer’s alternate agenda. Schmotzer provided the
alternate agenda to each Board Member, with the exception of Macek, prior to the start of
the Special Meeting.
Immediately prior to the start of the Special Meeting, Schmotzer confronted
Crowder and asked her whether she supported his appointment to the Position. Crowder’s
answer to Schmotzer was indecisive. Schmotzer informed Crowder that he believed a
majority of Board Members were supportive of his appointment and that he preferred the
Board’s vote to be unanimous to reflect full support in the Board’s decision.
Board Members Schmotzer, Crowder, DiNardo, Macek, Pantuso, Rosing, and Diana
Kazour attended the Special Meeting. At Schmotzer’s direction, Nixon, Rambo, and Judge
Motznik also attended the Special Meeting.
At the beginning of the Special Meeting, DiNardo resigned from her position as
President of the Board. Schmotzer then made a motion to appoint Pantuso as President of
the Board. The motion passed by a unanimous vote. Schmotzer motioned and voted to
appoint Pantuso as President of the Board at a time when Schmotzer had a reasonable
expectation that Pantuso was supportive of Schmotzer’s appointment to the Position.
After Pantuso’s appointment as President of the Board, Schmotzer made a motion
to appoint Rosing as the First Vice President of the Board. The motion passed by a vote
of six to one, with Schmotzer voting in favor of the motion. Schmotzer motioned and voted
to appoint Rosing as the First Vice President of the Board at a time when Schmotzer had
preexisting knowledge that Rosing was supportive of Schmotzer’s appointment to the
Position.
Following Rosing’s appointment as First Vice President of the Board, Schmotzer
made a motion to appoint Nixon to fulfill the two-year term of former Board Member
Fischer. The other Board Members had no prior knowledge that Nixon was interested in or
would be nominated to fulfill Fischer’s term. The motion passed by a vote of six to one,
with Schmotzer voting in favor of the motion. Judge Motznik then administered the oath of
office to Nixon.
After Nixon’s appointment to the Board, action items on the original meeting agenda
were completed. Schmotzer then submitted his resignation from the Board, which the
Board unanimously accepted. Immediately following Schmotzer’s resignation, the Board
voted unanimously to appoint Rambo to fill the vacancy created by Schmotzer’s
resignation. Judge Motznik then administered the oath of office to Rambo.
Following Rambo’s appointment to the Board, Solicitor Dice presented the Board
with the Position resolution, the Position job description, and Schmotzer’s employment
contract. The Board did not review or discuss the Position resolution, the Position job
description, or Schmotzer’s employment contract prior to the Special Meeting. The Board
had never discussed a salary for the Position at a formal meeting and never discussed with
School District officials or administrators whether the 2013/2014 school year budget
possessed sufficient funding for the Position. The Board, by a vote of seven to one,
adopted the Position resolution, which created the Position titled as “Supervisor of Projects
for the Board of School Directors and Special Assistant to the Superintendent.” The Board
then appointed Schmotzer to the Position by another vote of seven to one. Macek cast
each of the lone dissenting votes.
Schmotzer, 14-003
Page 26
Schmotzer’s employment contract was signed the night of the Special Meeting, and
his employment in the Position began on November 20, 2013. On his first day of
employment, Schmotzer inquired with the School District Business Manager (“Business
Manager”) regarding the next scheduled pay date. The Business Manager informed
Schmotzer that the next scheduled pay date was November 22, 2013, and Schmotzer
requested to be included on the next payroll cycle. The School District at times issues
paychecks in advance, and the Business Manager acknowledged Schmotzer’s request.
The School District issued Schmotzer a paycheck dated November 22, 2013, in the gross
amount of $4,568.96, resulting from his employment in the Position. The School District
issued Schmotzer the paycheck in advance of him completing his first ten days of
employment. Schmotzer cashed the paycheck on November 22, 2013.
There was considerable media coverage questioning Schmotzer’s appointment to
the Position, and by December 3, 2013, Pantuso contacted Schmotzer and requested his
resignation from the Position. Pantuso explained that the Position was creating a negative
effect within the administration and that it was in the School District’s best interests for
Schmotzer to resign. Schmotzer reluctantly agreed to Pantuso’s request. On December 4,
2013, Schmotzer submitted to the administration his resignation from the Position effective
December 3, 2013. Schmotzer, who had been elected in November 2013 to a four-year
term on the Board that was to begin in December 2013, was sworn in as a Member of the
Board at the Board’s reorganization meeting on December 4, 2013. Schmotzer continues
to hold office as a Member of the Board.
The parties have stipulated that Schmotzer, as a Member of the Board, was
required to file SFIs for calendar years 2008 through 2012. Schmotzer is the owner of
businesses named “Equitable Window Company,” “AAA Merchant Services of
Pennsylvania,” “AAA One Call Handyman,” and “BABS and Associates.” Schmotzer
disclosed his financial interests in the aforesaid businesses on his SFIs for the 2008
through 2012 calendar years. Schmotzer further disclosed the aforesaid businesses as
sources of income on his SFIs for the 2008 through 2011 calendar years. The parties
have stipulated that Schmotzer neglected to disclose his office, directorship or employment
in the aforesaid businesses on his SFIs for the 2008 through 2012 calendar years. The
parties have further stipulated that Schmotzer neglected to disclose his address on his SFI
for calendar year 2012. The parties have additionally stipulated that on December 12,
2014, Schmotzer filed complete and accurate SFIs for calendar years 2008 through 2012
with this Commission.
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 Schmotzer utilized his
position as a Member of the Baldwin-Whitehall
School District \[Board of Directors\] by initiating
and taking action to create the position of
Supervisor of Projects for the \[Board of\] School
Directors and Special Assistant to the
Superintendent (“Position”), and expressing his
intent to be appointed to the Position and
recommending a salary range for the Position to
Schmotzer, 14-003
Page 27
fellow Board Members, thereby facilitating the
creation of the Position, and enabling his
appointment to the Position and his receipt of
compensation.
b. That no violation of Section 1105(b)(8) \[of the
Public Official and Employee Ethics Act, 65
Pa.C.S. § 1105(b)(8)\], occurred when Schmotzer
failed to disclose on each of his Statements of
Financial Interests filed for the 2008 through
2012 calendar years, his office, directorship, or
employment in any of his privately owned
businesses (Block 13), namely, Equitable
Window Company, AAA One Call Handyman,
AAA Merchant Services of Pennsylvania, and
BABS and Associates. Schmotzer did disclose
his financial interests in Equitable Window
Company, AAA One Call Handyman, AAA
Merchant Services of Pennsylvania, and BABS
and Associates in Block 14 of his Statements of
Financial Interests filed for the 2008 through
2012 calendar years, and \[the aforesaid
businesses as direct or indirect sources of
income in Block 10 of\] his Statements of
Financial Interests filed for the 2008 through
2011 calendar years, such that Schmotzer has
substantially complied with the requirements of
the Ethics Act and to the extent that a technical
defect appears on the face of his Statements of
Financial Interests, it is appropriate to permit an
amendment to the form, as found by the Court in
In re Benninghoff, 852 A.2d 1182 (Pa. 2004).
c. That no violation of Section 1105(b)(1) \[of the
Public Official and Employee Ethics Act, 65
Pa.C.S. § 1105(b)(1)\], occurred when Schmotzer
omitted his address and telephone number on
his Statement of Financial Interests filed for the
2012 calendar year, in that a mistake in
disclosing one’s residence on a Statement of
Financial Interests is permitted to be amended,
absent a showing of bad faith. In re: Nomination
Petition of Shimkus, 946 A.2d 139, 156 (Pa.
Commw. Ct. 2008).
4. Schmotzer agrees to make payment in the amount of
$4,568.96 in settlement of this matter to be made payable to
the Baldwin-Whitehall School District and forwarded to the
Pennsylvania State Ethics Commission within thirty (30) days
of the issuance of the final adjudication in this matter.
5. Schmotzer has filed complete and accurate amended
Statements of Financial Interests with Baldwin-Whitehall
School District, through the Pennsylvania State Ethics
Commission, for calendar years 2008, 2009, 2010, 2011 and
2012…. In addition, Schmotzer has filed complete and
accurate amended Statements of Financial Interests with
Schmotzer, 14-003
Page 28
Baldwin-Whitehall School District, through the Pennsylvania
State Ethics Commission, for calendar years 2007 and 2013.
6. Schmotzer agrees to not accept any reimbursement,
compensation or other payment from Baldwin-Whitehall
School District representing a full or partial reimbursement of
the amount paid in settlement of this matter.
7. The Investigative Division and Schmotzer request that the
State Ethics Commission make no specific recommendations
to any law enforcement or other authority to take action in this
matter. The parties acknowledge that:
a. All orders are provided to the Attorney General
as a matter of course;
b. All orders become public records and may be
acted upon by law enforcement authority(ies) as
they deem appropriate; and
c. The Commission is not prohibited 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 that may so
choose to review this matter further.
Consent Agreement, at 1-3.
In considering the Consent Agreement of the parties, we accept the
recommendation of the parties for a finding that a violation of Section 1103(a) of the Ethics
Act occurred when Schmotzer utilized his position as a Member of the Board by initiating
and taking action to create the Position, expressing his intent to be appointed to the
Position, and recommending a salary range for the Position to fellow Board Members,
thereby facilitating the creation of the Position, and enabling his appointment to the
Position and his receipt of compensation.
Schmotzer used his position as a Board Member to orchestrate the creation of the
Position and his appointment to the Position when he, inter alia: (1) arranged meetings
with Board Members Crowder, Macek, and Pantuso and at one such meeting proposed
creating the Position; (2) contacted Crowder and Pantuso and indicated to them that a
majority of Board Members were supportive of his appointment to the Position and that his
starting annual salary for the Position would be in the range of $120,000.00; (3) requested
that Board President DiNardo schedule a third Board meeting for November 2013 to
discuss the restructuring of the Board; (4) discussed the subject of creating the Position
and solicited support for his appointment to the Position with at least five Board Members
on various occasions prior to the Special Meeting which was scheduled as a result of
Schmotzer’s request to DiNardo; (5) contacted School District resident Nixon and arranged
for her to attend the Special Meeting in order to fill a vacancy on the Board; (6) met with
newly-elected Board Member Rambo and arranged for Rambo to attend the Special
Meeting for the purpose of being appointed to fill a vacancy that would be created by
Schmotzer’s resignation from the Board at the Special Meeting; (7) arranged for Judge
Motznik to attend the Special Meeting to administer an oath of office to Nixon and Rambo;
(8) participated in the creation of a job description for the Position; (9) participated with
Rosing in generating an employment contract for Schmotzer for the Position; and (10)
created and provided an alternate agenda for the Special Meeting which identified various
actions to occur, including Schmotzer’s resignation from the Board, the appointments of
Schmotzer, 14-003
Page 29
Nixon and Rambo to the Board, the Board’s vote on the resolution to create the Position,
and the appointment of Schmotzer to the Position.
As a result of Schmotzer’s uses of authority of office, he was appointed to the
Position and received compensation in the gross amount of $4,568.96 in advance of him
completing his first ten days of employment.
Based upon the Stipulated Findings and the Consent Agreement, we hold that a
violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when
Schmotzer utilized his position as a Member of the Board by initiating and taking action to
create the Position, expressing his intent to be appointed to the Position, and
recommending a salary range for the Position to fellow Board Members, thereby facilitating
the creation of the Position, and enabling his appointment to the Position and his receipt of
compensation.
As for the allegation regarding Schmotzer’s failure to disclose his office,
directorship, or employment in any of his privately owned businesses on his SFIs filed for
calendar years 2008 through 2012, per the Stipulated Findings, Schmotzer neglected to
disclose his office, directorship or employment in businesses he owns which are named
“Equitable Window Company,” “AAA Merchant Services of Pennsylvania,” “AAA One Call
Handyman,” and “BABS and Associates.” Fact Finding 90 b. However, Schmotzer did
disclose his financial interests in the aforesaid businesses on his SFIs for the 2008
through 2012 calendar years, and he did disclose the aforesaid businesses as sources of
income on his SFIs for the 2008 through 2011 calendar years.
With regard to the allegation regarding Schmotzer’s failure to identify an
address/telephone number on his SFI filed for calendar year 2012, per the Stipulated
Findings, Schmotzer neglected to disclose his address on his SFI for calendar year 2012.
Fact Finding 89 a.
The parties, through the negotiation process, have agreed that the aforesaid
disclosure regarding Schmotzer’s businesses constituted substantial compliance with the
Ethics Act and that it would be appropriate to find no violation of Section 1105(b)(8) of the
Ethics Act and to permit amendment, in support of which recommendation the parties cite
In re Benninghoff, 578 Pa. 402, 852 A.2d 1182 (2004). With regard to Schmotzer’s failure
to disclose his address on his SFI for calendar year 2012, the parties have agreed that it
would be appropriate to find no violation of Section 1105(b)(1) of the Ethics Act and to
permit amendment, in support of which recommendation the parties cite In re: Nomination
Petition of Shimkus, 946 A.2d 139, 156 (Pa. Commw. Ct. 2008).
We recognize the “give and take” that is part of settlement negotiations. However,
because: (1) Section 1105(b)(8) of the Ethics Act expressly requires disclosure on the SFI
form of any office, directorship or employment in any business entity, 65 Pa.C.S. §
1105(b)(8); and (2) Section 1105(b)(1) of the Ethics Act expressly requires, inter alia,
disclosure on the SFI form of the filer’s address, 65 Pa.C.S. § 1105(b)(1), we will treat
each of the above recommendations as a non pros by the Investigative Division as to the
respective Section 1105(b)(8) and Section 1105(b)(1) allegations in this particular
proceeding. (We parenthetically note that the ability of a candidate to amend a deficient
Statement of Financial Interests for purposes of defeating a challenge to his nomination
petition and having his name appear on the ballot, see, In re: Nomination Petition of
Paulmier, 594 Pa. 433, 937 A.2d 364 (2007), does not negate the initial failure to comply
(cf., Id., 594 Pa. at 449, 937 A.2d at 373), and does not preclude our review as to whether
a deficiency violates/fails to comply with Section 1105(b) of the Ethics Act.)
Accordingly, for purposes of the instant proceeding, we find no violation of Section
1105(b)(8) of the Ethics Act, 65 Pa.C.S. § 1105(b)(8), as to the allegation that Schmotzer
failed to disclose his office, directorship, or employment in any of his privately owned
Schmotzer, 14-003
Page 30
businesses on his SFIs filed for calendar years 2008 through 2012 based upon a non pros
by the Investigative Division.
Additionally, for purposes of the instant proceeding, we find no violation of Section
1105(b)(1) of the Ethics Act, 65 Pa.C.S. § 1105(b)(1), as to the allegation that Schmotzer
failed to identify an address/telephone number on his SFI filed for calendar year 2012
based upon a non pros by the Investigative Division.
As part of the Consent Agreement, Schmotzer has agreed to make payment in the
amount of $4,568.96 payable to the Baldwin-Whitehall School District and forwarded to
this Commission within thirty (30) days of the issuance of the final adjudication in this
matter. Schmotzer has also agreed to not accept any reimbursement, compensation or
other payment from the School District representing a full or partial reimbursement of the
amount paid in settlement of this matter.
Schmotzer has now filed complete and accurate amended SFIs with the School
District through this Commission for calendar years 2008 through 2012.
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, Schmotzer is directed to
make payment in the amount of $4,568.96 payable to the Baldwin-Whitehall School District
th
and forwarded to this Commission by no later than the thirtieth (30) day after the mailing
date of this adjudication and Order.
Per the Consent Agreement of the parties, Schmotzer is further directed to not
accept any reimbursement, compensation or other payment from the School District
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.
IV.CONCLUSIONS OF LAW:
1. As a Member of the Baldwin-Whitehall School District Board of Directors (“Board”)
from December 12, 2012, to November 19, 2013, and from December 4, 2013, to
the present, Respondent Martin Schmotzer (“Schmotzer”) has been a public official
subject to the provisions of the Public Official and Employee Ethics Act (“Ethics
Act”), 65 Pa.C.S. § 1101 et seq.
2. Schmotzer violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when
he utilized his position as a Member of the Board by initiating and taking action to
create the position of Supervisor of Projects for the Board of School Directors and
Special Assistant to the Superintendent (“Position”), expressing his intent to be
appointed to the Position, and recommending a salary range for the Position to
fellow Board Members, thereby facilitating the creation of the Position and enabling
his appointment to the Position and his receipt of compensation.
3. For purposes of the instant proceeding, we find no violation of Section 1105(b)(8) of
the Ethics Act, 65 Pa.C.S. § 1105(b)(8), as to the allegation that Schmotzer failed to
disclose his office, directorship, or employment in any of his privately owned
businesses on his Statements of Financial Interests filed for calendar years 2008
through 2012 based upon a non pros by the Investigative Division.
Schmotzer, 14-003
Page 31
4. For purposes of the instant proceeding, we find no violation of Section 1105(b)(1) of
the Ethics Act, 65 Pa.C.S. § 1105(b)(1), as to the allegation that Schmotzer failed to
identify an address/telephone number on his Statement of Financial Interests filed
for calendar year 2012 based upon a non pros by the Investigative Division.
In Re: Martin Schmotzer, : File Docket: 14-003
Respondent : Date Decided: 5/5/15
: Date Mailed: 5/12/15
ORDER NO. 1656
1. Martin Schmotzer (“Schmotzer”) violated Section 1103(a) of the Public Official and
Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), when he utilized his
position as a Member of the Baldwin-Whitehall School District Board of Directors
(“Board”) by initiating and taking action to create the position of Supervisor of
Projects for the Board of School Directors and Special Assistant to the
Superintendent (“Position”), expressing his intent to be appointed to the Position,
and recommending a salary range for the Position to fellow Board Members,
thereby facilitating the creation of the Position and enabling his appointment to the
Position and his receipt of compensation.
2. For purposes of the instant proceeding, we find no violation of Section 1105(b)(8) of
the Ethics Act, 65 Pa.C.S. § 1105(b)(8), as to the allegation that Schmotzer failed to
disclose his office, directorship, or employment in any of his privately owned
businesses on his Statements of Financial Interests filed for calendar years 2008
through 2012 based upon a non pros by the Investigative Division.
3. For purposes of the instant proceeding, we find no violation of Section 1105(b)(1) of
the Ethics Act, 65 Pa.C.S. § 1105(b)(1), as to the allegation that Schmotzer failed to
identify an address/telephone number on his Statement of Financial Interests filed
for calendar year 2012 based upon a non pros by the Investigative Division.
4. Per the Consent Agreement of the parties, Schmotzer is directed to make payment
in the amount of $4,568.96 payable to the Baldwin-Whitehall School District and
forwarded to the Pennsylvania State Ethics Commission by no later than the
th
thirtieth (30) day after the mailing date of this Order.
5. Per the Consent Agreement of the parties, Schmotzer is further directed to not
accept any reimbursement, compensation or other payment from the Baldwin-
Whitehall School District representing a full or partial reimbursement of the amount
paid in settlement of this matter.
6. Compliance with paragraphs 4 and 5 of this Order will result in the closing of this
case with no further action by this Commission.
a. Non-compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
___________________________
Nicholas A. Colafella, Chair