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HomeMy WebLinkAbout1687 FitzgeraldIn Re: Richard Fitzgerald, File Docket: 14 -066 Respondent X -ref: Order No. 1687 Date Decided: 1/20/16 Date Mailed: 1/29/16 Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Kathryn Streeter Lewis 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 by the Investigative Division. 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. ALLEGATIONS: That Richard Fitzgerald, a public official /public employee in his capacity as the Chief Executive of] Allegheny County, Pennsylvania, violated [Section 1103(a)] of the Late Ethics Act (Act 93 of 1998) when he utilized a County- issued vehicle to travel to and from non - County related events, including but not limited to political campaigns and other political events; when he utilized a County- issued fuel credit card for the purpose of purchasing gasoline /fuel to be utilized in conjunction with traveling for non - County related events, including political events; when he omitted miles from official vehicle mileage logs, resulting in a private pecuniary benefit by avoiding the need to pay [taxes] on private, non - business mileage; and when he otherwise utilized County resources, equipment, and /or personnel for non - County purposes, including but not limited to use of a County police officer and /or County police vehicle to escort him to and from political campaign events. II. FINDINGS: Richard J. Fitzgerald, Jr. ( "Fitzgerald ") has served as the Allegheny County Chief Executive (hereafter, "Chief Executive ") from January 3, 2012, through the present. Fitzgerald had previously served as a Member of Allegheny County Council (hereafter, "Council ") from March 3, 2000, to March 7, 2011. Fitzgerald served as the President of Council from January 2, 2004, to March 7. 2011. Fitzgerald, 14 -066 Page 2 b. Fitzgerald resigned his seat on Council in order to run for the position of Chief Executive in the 2011 election. 2. Allegheny County (hereafter, "County ") operates under a Home Rule Charter (hereafter, "HRC ") form of government. a. The HRC document was approved by the voters of the County at the May 19, 1998, election. The HRC is composed of multiple Articles which outline /identify the form of government, elected officers, government branches and the duties and responsibilities of those branches, budget and finance, etc. 2. The HRC was amended by Referendum on May 17, 2005. b. The initial Council and Chief Executive required by the HRC were elected in November 1999 and sworn into office on January 3, 2000. 3. The HRC established multiple operational requirements for the County, including but not limited to the form of government to be enacted as well as the specific elected offices existing under the HRC. a. The County's form of government includes an elected Council, an elected Chief Executive, and an appointed professional manager. 1. Council is composed of fifteen Members. aa. One Council Member is elected from each of the thirteen districts established within the County. bb. Two Council Members are elected at large. b. Elected County offices consist of fifteen Council Members, the Chief Executive, the District Attorney, the Controller, the Sheriff, and the Treasurer. All elected County officers are elected to serve four -year staggered terms which begin on the first business day of January following the election. aa. The HRC prohibits a Council Member from being a candidate for nomination or election to any political office other than that of Council Member without first resigning from Council. 2. The Chief Executive is limited to three consecutive terms of office. 4. In accordance with mandates established via the HRC, the legislative power of the County is vested with Council. a. Although Council holds the legislative power of the County, Council and its Members must deal with the Executive Branch exclusively through the Chief Executive or the Manager. The HRC identifies an exception to this mandate for the purpose of obtaining information and advice. Fitzgerald, 14 -066 Page 3 b. Council Members are prohibited from giving orders or instructions to employees of the Executive Branch. 5. Pursuant to Article IV, Section 6, of the HRC, Council adopted an administrative code to provide /include a complete plan of organization, departmental structure, and operation for the County government. 6. Council originally enacted the Administrative Code by Ordinance No. 8 -00 through approval of Bill No. 0035 presented at the May 16, 2000, meeting of Council. a. Then Chief Executive James Roddey vetoed said enactment on May 24, 2000. b. Roddey's veto was overridden by Council at the June 20, 2000, meeting of Council. C. Fitzgerald was a Member of Council in 2000 [when Council] voted to approve Ordinance 8 -00 and later to override Roddey's veto. 7. The Administrative Code was amended in its entirety at the June 27, 2000, meeting of Council via enactment of Ordinance No. 14 -00 as presented via Bill No. 0070. a. Fitzgerald was present at the June 27, 2000, Council meeting and voted in favor of the enactment of Ordinance No. 14 -00 through approval of Bill No. 0070. 8. The HRC additionally required Council to establish a Code of Accountability, Conduct, and Ethics for all elected and appointed County officers, employees, and members of agencies to include provisions addressing, at a minimum, the following: a. Ethics, political activity, conflicts of interest, gifts, and the personal use of County resources; b. Appropriate conduct and behavior in the performance of duties; and C. Penalties and sanctions for discrimination, favoritism, harassment, and oppression. 9. The County Code of Accountability, Conduct, and Ethics was initially established and enacted through Bill No. 310, under Ordinance No. 35 -01, and ultimately included within the County Code of Ordinances under Chapter 5, Administrative Code - Part 10: Personnel. a. Bill No. 310 enacting Ordinance No. 35 -01 was unanimously approved as amended at the April 3, 2001, Council meeting by those Council Members present. Fitzgerald was a Member of Council at that time and participated in the vote. b. Ordinance No. 35 -01 has been amended by Council multiple times since the April 3, 2001, Council meeting. 10. The County Code of Accountability, Conduct, and Ethics specifically addressed in part, the following: Fitzgerald, 14 -066 Page 4 a. The County's elected and chief appointed officials set the ethical tone and environment in the County and said officials carry the special obligation to set the example in relation to the Code of Accountability, Conduct, and Ethics; b. All persons are subject to and are expected to be familiar with the Accountability, Conduct, and Ethics Code and the Pennsylvania Public Official and Employee Ethics Law; C. No covered person may use, request, or permit the use of County resources, including, but not limited to, motor vehicles, equipment, and materials, except for County purposes; and 1. Covered individuals are identified in the Accountability, Conduct, and Ethics Code as "All elected and appointed County officers, County officials and all County employees and members of County agencies." aa. The Chief Executive is identified as a County officer within the Accountability, Conduct, and Ethics Code. d. Employees have the right to hold membership in a political party, to vote, to express publicly or privately opinions on political subjects and candidates, to maintain political neutrality, and to otherwise participate in political meetings and activities. Employees must engage in all such activities as private citizens, away from County workplaces, out of uniform, and during non - working hours, except union officers in the normal conduct of union activities. 11. Part 10, Article 1013 of the Administrative Code addressed the subject of Political Activity; Accountability, Conduct, and Ethics Code. a. Section 5- 1013.08 of Part 10, Article 1013 specifically addressed the responsibility of providing notification to individuals covered under the provisions of Article 1013. 1. The County Manager is the individual responsible for communicating the provisions of Article 1013 to all covered persons. 2. Part of each orientation is to include a discussion of the Accountability, Conduct, and Ethics Code. 3. Each covered person is to receive a personal copy of the Accountability, Conduct, and Ethics Code. b. Each covered person is to sign a statement acknowledging receipt of the Accountability, Conduct, and Ethics Code, his /her understanding of its content, and his /her agreement to abide by the established policies as a condition of continued employment. 12. Fitzgerald signed an acknowledgement of his receipt of the Allegheny County Employee Handbook as well as his receipt of the Allegheny County Code of Accountability, Conduct, and Ethics Code and his responsibility as a public employee to adhere to the guidelines therein. a. Fitzgerald signed the document on January 1, 2012. Fitzgerald, 14 -066 Page 5 13. In accordance with mandates established via the HRC, the executive and administrative power of the County is vested with the Executive Branch. a. The Executive Branch is composed of the Chief Executive, the Manager, the Law Department, and other departments and agencies as established in the Administrative Code. 14. The powers and duties of the Chief Executive are documented within Article V, Section 2, of the HRC. 15. Article V, Section 2, of the HRC specifically identified the powers and duties of the Chief Executive [to include but not be limited to] the following: a. Enforcement of the ordinances and resolutions of the County, the provisions of the HRC, and the laws of the United States of America and the Commonwealth of Pennsylvania pertaining to the government of the County; b. Representation of the County, or designation of a County representative, at all meetings and negotiations with the heads of other governmental or quasi - governmental bodies; C. Representation of the County, or designation of a County representative, in all meetings and negotiations involving economic development; d. Approval or rejection of ordinances and resolutions passed by Council as provided in Article IV, Section 5 of the HRC; e. Control of and accountability for the administration of all departments and agencies except those specifically placed under the jurisdiction of any other officer by law or by the HRC; Submission to Council of the comprehensive fiscal plan as provided in Article VII of the HRC; g. Appointment of the County Manager and the County Solicitor with the consent of Council; h. Making appointments to authorities and agencies as permitted by law and recommendations to Council for the establishment and elimination of authorities and agencies; Negotiation, awarding and signing, or causing to be negotiated, awarded, and signed, on behalf of the County, all contracts, agreements, and other instruments except as provided in Article IV, Section 2 (j) and (k) of the HRC; Submission of ordinances, resolutions, and other related matters to Council; k. The calling of special meetings of Council as necessary; Attendance and participation in designated quarterly meetings and, as the Chief Executive deems necessary, additional meetings of Council; The Chief Executive has no right to vote at meetings of Council. M. Provide an annual state of the County address and other reports as Council may require from time to time; Fitzgerald, 14 -066 Page 6 n. Declaration of and taking of appropriate action to meet a state of emergency; o. Designation, in writing, for the County Manager or another administrative officer of the County to exercise the powers and perform the duties of the Chief Executive during a temporary absence or disability of the Chief Executive; and p. Serve as a Member of the Allegheny County Board of Elections 16. The County maintains a fleet of County -owned and County - leased vehicles in association with its day -to -day operations. a. County vehicles are assigned to /available to multiple County departments /offices for use in relation to public works, law enforcement, and other operational purposes. b. Employees eligible to operate County- owned /leased vehicles are identified within the Fleet Management eligible driver database. 17. Some County vehicles are available to County personnel as "take- home" vehicles. a. Take -home vehicles are assigned to specific County personnel for daily use in association with employment responsibilities. Permitted use regarding take -home vehicles includes utilizing the vehicle for the purpose of commuting to and from work. b. Of the 721 vehicles in the County fleet as of September 2014, at least 151 were classified as take -home vehicles. 18. The County Manager is responsible for approving the assignment of take -home vehicles to County employees. a. Assignment of County vehicles is primarily limited to County directors, department heads, and other key employees. b. The individual in the position of Chief Executive has been assigned a County take -home vehicle since inception of the HRC and prior to Fitzgerald's election as Chief Executive. 19. The County maintains a Vehicle Fleet Handbook to provide uniform policies and procedures for management of the County vehicle fleet. a. Specifically addressed within Sections I through VII of the handbook are driver responsibilities, department responsibilities, follow -up, traffic violations, withdrawal of County vehicle use privileges, safety guidelines, and additional County prohibitions. b. Prohibitions documented under Section I, Sub - section VII, included, in part, the following: • "The use of a County vehicle for any business ventures other than that pertaining to the job duties and responsibilities of the County. County vehicles cannot be used for personal business." 20. All take -home County vehicles are assigned a fuel card to obtain fuel for official County business. Fitzgerald, 14 -066 Page 7 a. The County's current fuel card service vendor is Wright Express. 21. Internal Revenue Service ( "IRS ") regulations require the value of an employee's personal use of an employer - provided vehicle to be included in the individual's compensation for taxation purposes. a. IRS regulations define commuting to and from work as personal use. 22. County Policy DCS 20 -1 provides that County elected officials are to maintain and provide to the Division of Computer Services a written record (DCS Form 20 -2, Daily Automobile Usage Report for Elected Officials) of his /her business use of his /her County - provided vehicle in order to allow for the calculation of the amount to be included as compensation on his /her IRS Form W -2. a. Information to be documented on DCS Form 20 -2 includes the date, business purpose, and mileage of each business use of the vehicle as well as the vehicle's mileage at the beginning and end of each calendar year. Columns also exist on DCS Form 20 -2 in which personal mileage and commuting mileage incurred on a daily basis may be documented. 2. DCS Form 20 -2 is to be utilized with the DCS Form 20 -3, Calculation of Compensation of County Vehicles for Elected Officials, calculation sheet. b. The value of compensation to the elected official is determined by the percentage of personal use in relation to the fair market value of the vehicle assigned at the time it was placed in service. The calculation method utilized for County elected officials with take - home vehicles is known as the Lease Value Rule. C. Although County Policy DCS 20 -1 provides for the monthly submission of DCS Forms 20 -2 and 20 -3 by elected officials assigned take -home vehicles to the Division of Computer Services, said forms are actually to be submitted quarterly to the Controller's Payroll Division. 23. Information from DCS Form 20 -3 used to calculate the amount of compensation to be included on an elected official's IRS Form W -2 includes the following: a. Employee name; b. Vehicle description; C. Vehicle fair market value; d. Number of days the vehicle was available during the quarter; e. Commuting miles; Other personal miles; g. Business miles; and h. Identification of the quarter ending date. Fitzgerald, 14 -066 Page 8 24. The process utilized to determine compensation to be included on the elected official's IRS Form W -2 is documented on DCS Form 20 -3 as follows: a. Identification of the annual lease value of the vehicle; The annual lease value is obtained from the Federal Annual Lease Value Table included within County Policy DCS 20 -1. b. Calculation of personal use percentage by dividing the sum of commuting miles and other personal miles by the sum of commuting miles, other personal miles, and business miles; C. Generation of the annual compensation amount by multiplying the annual lease value by the personal use percentage; d. Determination of the quarterly value by multiplying the annual compensation amount by 25 %; e. Computation of the availability compensation quarter by dividing the number of days the vehicle was available during the quarter by the number of calendar days in the quarter; Calculation of quarterly compensation by multiplying the quarterly value by the availability compensation quarter; g. Tabulation of the amount of operating expenses by multiplying the sum of the commuting miles and other personal miles by $0.055; and h. Identification of total compensation by adding the quarterly compensation figure to the operating expense. 25. Upon taking office on January 3, 2012, Fitzgerald was assigned a County -owned 2007 Jeep Grand Cherokee as a take -home vehicle to be utilized in his position of Chief Executive. a. The vehicle had previously been assigned to Dan Onorato, the former Chief Executive. b. The vehicle identification number associated with the 2007 Jeep Grand Cherokee was 5605. C. The fuel card number associated with Fitzgerald's vehicle was 5657. 26. Fitzgerald was offered the use of a new vehicle but he declined, opting to use the older vehicle as a cost savings to the County. 27. The odometer reading on the 2007 Jeep Grand Cherokee at the time that Fitzgerald took possession of the vehicle was 74,219 miles. a. The fuel card assigned to the 2007 Jeep Grand Cherokee during Fitzgerald's tenure was first utilized on January 4, 2012, at 27 Mosside Blvd., Monroeville, PA 15146, at approximately 11:13 a.m. The odometer reading at the time of the fuel purchase was 74,288 miles per the fuel card transaction report for card number 5657. Fitzgerald, 14 -066 Page 9 28. Detectives from the General Investigations Division of the Allegheny Police Department have been assigned to a security detail for the Chief Executive since inception of the HRC. a. Detectives assigned to Fitzgerald's security detail have assigned workdays of Monday through Friday with assigned work hours spanning the time frame of 8:00 a.m. to 12:00 a.m. Each detective assigned to the security detail is assigned one of two eight -hour shifts (shifts of 8 a.m. - 4:00 p.m. or 4:00 p.m. - 12:00 a.m.). aa. Shifts assigned may fluctuate based on vacations, training requirements, etc. 2. Any specific times or dates for which a security detail is not needed for Fitzgerald result in the detectives performing duties for the General Investigations Division. aa. The need for a security detail for Fitzgerald is determined by a consensus of the detectives assigned to the security detail and Fitzgerald based on each specific event and /or activity. b. The occasions for which the security detail is used are determined jointly by the Allegheny County Superintendent, the assigned detectives, and Fitzgerald. C. Fitzgerald uses the security detail less than prior Chief Executives did. 29. The primary responsibility of the detectives assigned to Fitzgerald's security detail is to ensure Fitzgerald's safety /protection as he carries out his duties and responsibilities as the Chief Executive. a. Detectives assigned to the security detail provide a physical security presence for Fitzgerald within Fitzgerald's County Courthouse based offices. b. Detectives assigned to the security detail accompany Fitzgerald to a variety of events and activities outside of Fitzgerald's County Courthouse offices. C. Fitzgerald routinely attends events /activities in his capacity as the Chief Executive which fall beyond the regular assigned workdays and /or work hours of the detectives providing Fitzgerald's security services. As such, overtime may be accumulated by the security detail detectives. 30. Detectives assigned to Fitzgerald's security detail provide the service of driving Fitzgerald to and from events /activities that Fitzgerald is scheduled to attend along with security services at the actual events /activities. a. Fitzgerald serves as his own driver for events /activities for which a security detail is determined to be unnecessary. 31. The fuel card assigned to Fitzgerald's vehicle was utilized to obtain fuel when necessary whether [the vehicle was] operated by detectives or Fitzgerald. a. Detectives utilized their own employee identification numbers when inputting required information into the fuel pump. Fitzgerald, 14 -066 Page 10 b. Fitzgerald utilized his employee identification number when inputting required information into the fuel pump. C. The on -duty detective or Fitzgerald entered the actual odometer reading on the vehicle into the fuel pump at the time fuel was obtained. 32. Detectives assigned to Fitzgerald's security detail have electronic access to Fitzgerald's calendar in order to identify Fitzgerald's itinerary for any given day to assist with the identification of events /activities at which a security presence is needed. a. Having access to Fitzgerald's itinerary enables the detectives to determine where to begin the security detail. Instances exist where it is more convenient for the detectives to drive to Fitzgerald's residence and begin the security detail at Fitzgerald's residence dependent upon Fitzgerald's itinerary. b. Having access to Fitzgerald's itinerary permits the detectives to forecast potential overtime necessary to complete tasks associated with Fitzgerald's security. 33. Fitzgerald, in his capacity as the Chief Executive, maintained possession of and utilized the County 2007 Jeep Grand Cherokee from the dates of January 3, 2012, to November 12, 2014. a. Detectives assigned to Fitzgerald's security detail utilized Fitzgerald's County- assigned 2007 Jeep Grand Cherokee to transport Fitzgerald to events /activities occurring outside of the County Courthouse. No other County -owned or leased vehicles were specifically assigned to Fitzgerald from January 3, 2012, to November 12, 2014. b. Fitzgerald returned the County 2007 Jeep Grand Cherokee to the County fleet on November 12, 2014. The County 2007 Jeep Grand Cherokee documented an odometer reading of 150,605 miles upon return to the County fleet. 34. Fitzgerald did not personally complete the DCS Forms 20 -2 and 20 -3 used to record mileage and calculate compensation. a. Fitzgerald's office continued to follow the policy implemented by former Chief Executives regarding documentation for use of the County vehicle. b. The DCS 20 -2 log for Fitzgerald's vehicle was completed by detectives assigned to Fitzgerald's security detail. This practice had been established by the two prior Chief Executives. C. The DCS 20 -3 compensation calculation form was completed by Sonya Dietz, Fitzgerald's Executive Secretary /Office Manager. d. Fitzgerald was never personally involved in producing vehicle documentation. Fitzgerald, 14 -066 Page 11 35. Fitzgerald's DCS 20 -2 logs routinely identified Fitzgerald's name, the log "to" and "from" date range, specific dates of use, business miles claimed on specific dates, and a description of the business purpose(s). a. Descriptions of the business purpose documented on Fitzgerald's DCS 20 -2 logs are general in relation to the actual event/activity as well as the actual event/activity location. Examples of events /activities documented include meetings, media event, speaking, town hall, etc. 2. Examples of event/activity locations include downtown Pittsburgh, city, Oakland, N. Side, Greentree, Shaler, etc. b. No information /mileage is identified on any of Fitzgerald's DCS 20 -2 logs in either the "Personal Mileage" or "Commuting Mileage" columns. Fitzgerald's standard claim of twelve miles for round -trip commuting was common knowledge. 36. Detectives assigned to Fitzgerald's security detail did not complete the DCS Form 20 -2 on a daily basis for Fitzgerald's business travel. a. Detectives primarily completed the logs on a quarterly basis upon notification from Dietz of the date the records were due. b. The logs were created by detectives based on events listed on Fitzgerald's calendar. 37. Detectives utilized internet mapping programs to identify mileage to and from events /locations as documented in Fitzgerald's calendar /itinerary. a. Mileage for events attended but not documented in Fitzgerald's calendar was not consistently accounted for on Fitzgerald's DCS 20 -2 logs by the assigned detectives. b. Routes mapped by internet mapping programs were not consistently the same routes traveled by Fitzgerald and his security detail to and from events. C. Mileage for events not attended but documented in Fitzgerald's calendar was at times included on Fitzgerald's DCS 20 -2 logs. 1. Inclusion of locations not traveled to and from resulted in over - reported mileage totals on mileage logs associated with Fitzgerald's use of the County 2007 Jeep Grand Cherokee. d. Mileage associated with any events /activities to which Fitzgerald traveled without his security detail was not included on the log if not documented on Fitzgerald's calendar or if Fitzgerald did not specifically inform the detectives of such after the fact. 38. From approximately March 31, 2012, through October 30, 2014, eleven DCS 20 -3 forms with supporting documentation in the form of DCS 20 -2 logs and accompanying County Payroll Vouchers identifying the value of compensation were submitted to the Controller's Office in relation to Fitzgerald's use of the County 2007 Jeep Grand Cherokee. Fitzgerald, 14 -066 Page 12 a. The ten DCS 20 -3 compensation calculation forms submitted for the quarters encompassing January 2012 through June 2014 documented commuting miles and business miles only. 1. Commuting miles were calculated at twelve miles per each day the vehicle was available during each specific quarter. aa. Days available per quarter were determined by adding the total number of weekdays for each month in the quarter. 2. Business miles were calculated by adding all miles documented on the DCS 20 -2 forms for each [month in the] quarter. b. The eleventh DCS 20 -3 compensation calculation form submitted represented the quarter spanning from July 2014 through September 2014 and documented commuting miles, business miles, and "other personal miles." 1. Commuting miles were calculated at twelve miles per each day the vehicle was available during the quarter. aa. Days available per quarter were determined by adding the total number of weekdays for each month in the quarter. 2. Business miles were calculated by adding all miles documented on the DCS 20 -2 forms for each month in the quarter. 3. No supporting documentation was included to identify the method by which the number of other personal miles was calculated. aa. The DCS 20 -3 compensation calculation form submitted for the July 2014 through September 2014 quarter was the only form which identified any "other personal miles" forwhich Fitzgerald utilized the County 2007 Jeep Grand Cherokee. bb. No identification of personal miles driven beyond commonly known commuting miles was documented on any of Fitzgerald's DCS 20 -2 logs for July 2014, August 2014, or September 2014. C. The DCS 20 forms were completed and submitted by staff of the Chief Executive's Office. 1. Staff did not consult with Fitzgerald when filing the DCS 20 forms. 39. DCS 20 -3 compensation calculation forms and DCS 20 -2 logs completed on Fitzgerald's behalf document total miles claimed by year and quarter as follows: 2012 1 Quarter 2 Quarter 3 Quarter 4 Quarter Total Vehicle Fair Market Value: $13,100.00 $13,100.00 $13,100.00 $13,100.00 N/A Days Vehicle Available: 65 64 65 66 260 Commuting Miles: 780 768 780 792 3,120 Other Personal Miles: 0 0 0 0 0 Fitzgerald, 14 -066 Page 13 Business Miles: 3,798 3,427 3,743* 3,990 14,958 Calculated Comp Value $159.78 $166.12 $159.86 $158.19 $643.95 Error in addition on logs, actual mileage totals 3,779 2013 1 Quarter 2 Quarter 3 Quarter 4 Quarter Total Vehicle Fair Market Value: $8,331.00 $8,331.00 $8,331.00 $8,331.00 N/A Days Vehicle Available: 64 65 65 66 260 Commuting Miles: 768 780 780 792 3,120 Other Personal Miles: 0 0 0 0 0 Business Miles: 3,846 3,998 5,131 4,567 17,542 Calculated Comp Value $118.97 $119.75 $104.69 $113.76 $457.17 2014 1 Quarter 2 Quarter 3 Quarter 4 Quarter Total Vehicle Fair Market Value: $6,119.00 $6,119.00 $6,119.00 N/A N/A Days Vehicle Available: 64 65 66 N/A 195 Commuting Miles: 768 780 792 N/A 2,340 Other Personal Miles: 0 0 3,375 N/A 3,375 Business Miles: 3,226 2,257 3,519 N/A 9,002 Calculated Comp Value $114.69 $140.06 $433.33 N/A $688.08 a. Total miles logged by year is as follows: 2012: 18,078 2013. 20,662 *2014: 14,717 *Through 11/2014. b. The logs for the 3rd Quarter of 2014 reflect the disclosure of personal miles on Fitzgerald's 3rd Quarter DCS 20 -3, after Fitzgerald was notified of the Controller's pending audit of County -owned and leased vehicles. 40. Of the 76,386 miles logged on the County 2007 Jeep Grand Cherokee by Fitzgerald from January 3, 2012, to November 12, 2014, 53,493 were documented on Fitzgerald's DCS 20 -2 and DCS 20 -3 forms. a. Not all miles driven for business use were logged by the staff responsible for completing and maintaining the DCS 20 -2 and DCS 20 -3 forms. 41. Between January 2012 and November 2014, while assigned the County 2007 Jeep Grand Cherokee, Fitzgerald was invited to attend and speak at multiple events in his capacity as the Chief Executive. a. Some of the events which Fitzgerald attended were fundraising events for candidates for public office. b. Fitzgerald made stops at some of these events in conjunction with official County business. Fitzgerald, 14 -066 Page 14 C. Exact miles traveled in relation to fundraising events could not be determined. 1. None of the fundraising events were for the benefit of Fitzgerald. 42. Between January 2012 and November 2014, the following non - governmental events were attended by Fitzgerald in the County -owned 2007 Jeep Grand Cherokee: Date Calendar Description Location Mileage Log Description Miles Friday, January 13, 2012 State Committee State College Meetings -State College 275 Sunday, July 01, 2012 Dem Party Golf Outing West Hills Speaking -Moon Twp 37 Tuesday, August 14, 2012 DePasquale Fundraiser Plaza at Grandview Speaker -Mt. Washington 3 Tuesday, September 04, 2012 US AIR Flight 1231 (to Dem Nat Comm Con) Pittsburgh to Charlotte Airport Flight Out 20 Friday, September 07, 2012 US AIR Flight 1904 (from Dem Nat Comm Con) Charlotte to Pittsburgh Airport Flight In 20 Wednesday, September 26, 2012 Eugene DePasquale Reception Fundraiser Collier Speaker - Collier 17 Sunday, October 14, 2012 Scappe Fundraiser Mill Farm Speaking -Moon Twp 43 Wednesday, October 17, 2012 Cocktail Reception Supporting Congressman Doyle LeMont Restaurant Speaking Mt. Washington 5 Saturday, October 27, 2012 Obama Canvassing Kickoff 5700 Fair Oaks St. Media - Oakland 6 Thursday, December 06, 2012- PA Society (not in calendar - travel to) New York City NYC Events (404) Sunday, December 09, 2012- PA Society (not in calendar - travel from) New York City NYC Events (404) Saturday, February 16, 2013 Dravosburg Democratic Committee Meeting Dravosburg Borough Bldg Meeting Dravosburg 22 Friday, March 01, 2013 Nick Futules Dinner /Dance Not Documented Speaking Cheswick 23 Saturday, March 02, 2013 MiIlvale Dem Comm Endorsement Meeting 501 Farragut St 15209 Speaking MiIlvale 8 Sunday, March 03, 2013 City Democratic Committee Rivers Casino Speaking N. Side 4 Sunday, March 03, 2013 Stowe Twp Democratic Committee Fundraiser Tap Club, 15136 Speaking Stowe Twp. 14 Sunday, April 28, 2013 Wilkins Dem Rally 120 Peffer Rd. Speaking Wilkins 27 Tuesday, May 21, 2013** Primary Election Day /County Holiday Not Documented Election Polls 100 Tuesday, November 05, 2013** Election Day -Out of Office Not Documented Polling Places 187 Sunday, November 24, 2013 Democratic Caucus Breakfast (Drive to) Hotel Hershey Hershey 220 Monday, November 25, 2013 Democratic Caucus Breakfast (Return from) Hotel Hershey Hershey 220 Tuesday, January 14, 2014 Ross Dems Siebs Pub Ross 20 Thursday, January 23, 2014 Shadyside Dems Panera- Centre Ave City Meetings 20 Thursday, January 30, 2014 Mark Critz Fundraiser Mansions on Fifth Hotel Shadyside Meeting 9 Monday, February 17, 2014 Josh Shapiro Reception Not Documented Speaking City 4.5 Thursday, April 03, 2014 Gainey Fundraiser Not Documented N/A Unk Thursday, April 24, 2014 Doyle Fundraiser Not Documented Speaking Mt. Washington 4 Sunday, April 27, 2014 Monroeville Democratic Not Documented Speaking Monroeville 28 Tuesday, May 20, 2014** Primary Election Day /County Holiday Not Documented Election Day 150 Monday, June 09, 2014 Fundraiser Tony Tomasello's house Speaking Sewickley 29 Monday, July 07, 2014 Wolf Fundraiser LeMont Speaking Mt. Washington 4 Monday, July 28, 2014 Allegheny County Democratic Committee Wildwood Country Club Speaking McCandless 23 Monday, August 25, 2014 Wolf Event Barbara Kraft's House Speaking Mt. Lebo 16 Friday, August 29, 2014 Ross Dems Picnic ECP Speaking Ross 16 Sunday, September 07, 2014 Scott Dem Picnic Municipal Park Speaking Scott 16 Saturday, September 13, 2014 DeLuca Picnic Penn Hills Park Speaking at Penn Hills 38 Sunday, September 14, 2014 W Mifflin Democrat Committee Picnic Mifflin Social Club, West Mifflin Speaking W Mifflin 20 Sunday, September 14, 2014 North Borough Dems Bayne Park Speaking Bellevue 13 Total 1,661.5* *The total does not include any of the 3,375 personal miles identified on Fitzgerald's 3rd Quarter DCS [20 -3]. **In his capacity as a Member of the County Board of Elections, Fitzgerald traveled to numerous County polling locations on primary and general election days. Fitzgerald, 14 -066 Page 15 — Fitzgerald's trip to New York City in 2012 included not only attending PA Society events, but also meeting with banks with which the County transacts business. The roundtrip mileage of is not included in the total for non - governmental miles. 43. The County Code of Accountability, Conduct, and Ethics provides that County employees may only engage in political activities, including but not limited to public expression of opinions on political subjects and candidates, participation in political meetings and activities, etc., as private citizens. a. County vehicles are not to be used for any business ventures other than those pertaining to the job duties and responsibilities of the County. 44. Fitzgerald, as the Chief Executive, utilized a County -owned vehicle to attend political functions in conjunction with his official duties. a. Fitzgerald was driven to these functions by a detective assigned to his security detail. b. Exact mileage for transporting Fitzgerald to these events could not be determined. The political events attended by Fitzgerald were typically done in conjunction with County business. C. Fitzgerald was not running for re- election, nor was he a candidate for another public office when he was requested to attend these functions. 45. In late August 2014, the County Controller initiated an audit to assess the effectiveness of measures taken to monitor usage of County -owned and leased vehicles, County parking fees, and fuel cards. a. The County Controller communicated the intent for her office to perform the audit to County Manager William McKain via correspondence dated August 28, 2014. The correspondence initially identified the audit period to cover from January 1, 2009, through December 31, 2013, with the possibility of expanding the period and scope dependent on the results of the initial testing. aa. The audit period was subsequently amended via correspondence and email transmission dated October 6, 2014, to cover the period of January 2012 through September 30, 2014. The audit period was amended because vehicle information from January 1, 2009, through December 31, 2011, was under the prior administration and was not maintained in a form conducive to review. 46. McKain and /or Fitzgerald's Chief of Staff informed Fitzgerald of the pending audit by the Controller's Office subsequent to receipt of the August 28, 2014, correspondence. 47. On November 6, 2014, County Controller Chelsa Wagner convened a press conference during which she announced that the Controller's Office had uncovered misuse of County taxpayer funds in relation to her then still ongoing audit of County -owned vehicles. Fitzgerald, 14 -066 Page 16 a. Wagner alleged, among other things, that Fitzgerald had utilized his County - issued vehicle contrary to explicit policy which dictated that all employees are strictly prohibited from using County -owned vehicles for personal use. 48. Wagner notified Fitzgerald via correspondence dated November 6, 2014, of her findings. 49. Fitzgerald subsequently returned the County -owned 2007 Jeep Grand Cherokee to the County fleet on November 12, 2014, following the allegations raised by Wagner. a. The return of the County vehicle as well as the fuel card assigned to the vehicle was verified by Douglas A. Nolfi, Deputy Director of Maintenance Operations, Department of Public Works, via email dated November 12, 2014, to McKain and Stephen Shanley, Interim Public Works Directoratthat time. b. McKain further documented the return of Fitzgerald's assigned County - owned vehicle, keys for the vehicle, and the fuel card assigned to the vehicle via correspondence to Fitzgerald dated November 12, 2014. 50. Fitzgerald asserts that he returned the County vehicle to minimize distractions resulting from the County Controller's allegations. 51. Fitzgerald submitted personal check number 1371, dated November 12, 2014, in the amount of $42,737.52 payable to the "County of Allegheny" as reimbursement to the County for all miles accumulated on the County -owned 2007 Jeep Grand Cherokee (commute, business, and other personal miles) during the time period of January 3, 2012, through November 12, 2014. a. The reimbursement was based on 76,317 miles (ending odometer reading of 150,605 minus odometer reading of 74,288 on January 4, 2012, based on Fitzgerald's vehicle log and County fuel card records). 1. The total mileage was 76,386 based on the actual starting odometer mileage for January 3, 2012, of 74,219. b. Fitzgerald utilized the 2014 IRS mileage reimbursement rate of $0.56 per mile in an effort to calculate reimbursement due for the total miles driven from January 3, 2012, through November 12, 2014 (76,317 multiplied by $0.56 equals $42,737.52). 1. The IRS mileage reimbursement rate was $0.555 per mile in 2012, $0.565 per mile in 2013, and $0.560 per mile in 2014. C. Fitzgerald's check was deposited into the County General Fund as miscellaneous revenue. The County General Fund is part of the County Operating Budget. d. Fitzgerald asserts that he issued the payment to the County to avoid politically motivated distractions so that he could devote full attention to County business. 52. On June 23, 2015, Fitzgerald was interviewed in the presence of his legal counsel by representatives of the Investigative Division during which Fitzgerald stated, in part, the following: Fitzgerald, 14 -066 Page 17 a. Fitzgerald opted to utilize the same vehicle which had been assigned to the prior Chief Executive as opposed to requesting and purchasing a new vehicle with taxpayer dollars; b. Fitzgerald maintained the same County vehicle during the entire period of time that he was assigned a County vehicle; C. Fitzgerald had never seen the mileage logs or the IRS calculation sheets associated with his County- assigned vehicle prior to the existence of the Commission investigation; d. Fitzgerald had not been informed about any aspect of documentation associated with his County vehicle nor was he familiar with taxation requirements, procedures, etc.; e. Fitzgerald confirmed that some of the events to which he traveled in the County vehicle (with or without his security detail) may be considered political in nature but his attendance enabled him to interact with federal, state and local officials, the public, businesses and labor leaders for the benefit of the County; While in attendance at such events that could be viewed as political, he "always" conducted some type of County business; g. He "may have" utilized his County vehicle for personal business at times but had no specific recollection of doing so; and h. He opted to turn in his County vehicle and issued personal payment for all miles he incurred on the County vehicle in an effort to move forward, put the subject behind him, and focus on his position as the Chief Executive. III. DISCUSSION: As the Chief Executive of Allegheny County ( "County "), Pennsylvania, from January 3, 2012, through the present, Respondent Richard J. Fitzgerald, Jr., also referred to hereinafter as "Respondent," "Respondent Fitzgerald," and "Fitzgerald," has been 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 seg. The allegations are that Fitzgerald violated Section 1103(a�of the Ethics Act: (1) when he utilized a County- issued vehicle to travel to and from non- ounty related events, including but not limited to political campaigns and other political events; (2) when he utilized a County- issued fuel credit card for the purpose of purchasing gasoline /fuel to be utilized in conjunction with traveling for non - County related events, including political events; (3) when he omitted miles from official vehicle mileage logs, resulting in a private pecuniary benefit by avoiding the need to pay taxes on private, non - business mileage; and �4) when he otherwise utilized County resources, equipment, and /or personnel for non - ounty purposes, including but not limited to use of a County police officer and /or County police vehicle to escort him to and from political campaign events. 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 Fitzgerald, 14 -066 Page 18 employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The term "conflict of interest" is defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are set forth above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Fitzgerald has served as the Chief Executive of the County from January 3, 2012, through the present. Fitzgerald had previously served as a Member of County Council from March 3, 2000, to March 7, 2011. Fitzgerald resigned his seat on Council in order to run for the position of Chief Executive in the 2011 election. Since the County began operating under a Home Rule Charter form of government in approximately 2000, detectives from the General Investigations Division of the Allegheny Police Department have been assigned to a security detail for the Chief Executive. Detectives assigned to Fitzgerald's security detail have workdays of Monday through Friday with work hours between 8:00 a.m. and 12:00 a.m. The detectives assigned to Fitzgerald's security detail provide a physical security presence for Fitzgerald within his County Courthouse based offices. The detectives also accompany Fitzgerald to a variety of events and activities that occur outside of his County Courthouse offices. Fitzgerald, the detectives, and the County Superintendent jointly determine the occasions for which the security detail is used. Fitzgerald serves as his own driver for events and activities for which a security detail is determined to be unnecessary. The detectives drive Fitzgerald to and from events and activities where a security detail is needed, and they provide security services at those events and activities. The detectives perform duties for the General Investigations Division when Fitzgerald does not need a security detail for a specific time or date. Fitzgerald, 14 -066 Page 19 The County maintains a fleet of County -owned and County - leased vehicles. County vehicles are assigned or available to multiple County departments and offices for use in relation to public works, law enforcement, and other operational purposes. Some County vehicles are assigned to specific County personnel as "take -home" vehicles for daily use in association with employment responsibilities. The use of a take -home vehicle to commute to and from work is permitted. Each take -home vehicle is assigned a fuel card to obtain fuel for official County business. The County Manager is responsible for approving the assignment of take -home vehicles to County employees. The individual in the position of Chief Executive has been assigned a take -home vehicle since approximately 2000. Internal Revenue Service ( "IRS ") regulations require the value of an employee's personal use of an employer - provided vehicle to be included in the individual's compensation for taxation purposes. Regulations of the IRS define commuting to and from work as personal use. County Policy DCS 20 -1 provides that an elected County official who is assigned a take -home vehicle is to maintain a written record of the official's business use of the vehicle in order to allow for the calculation of the amount to be included as compensation on the official's IRS Form W -2. The DCS Form 20 -2, Daily Automobile Usage Report for Elected Officials ( "Daily Usage Report ") documents the date, business purpose, and mileage of each business use of the vehicle as well as the vehicle's mileage at the beginning and end of each calendar year. The Daily Usage Report also has columns to document personal mileage and commuting mileage incurred on a daily basis. The Daily Usage Report is to be utilized with the DCS Form 20 -3, Calculation of Compensation of County Vehicles for Elected Officials ( "Compensation Calculation Form "). The Compensation Calculation Form utilizes the percentage of personal use of the vehicle and the annual lease value of the vehicle to determine the compensation to be included on the elected official's IRS Form W -2, as detailed in Fact Finding 24. Daily Usage Reports and Compensation Calculation Forms are to be submitted quarterly to the County Controller's Payroll Division. Upon taking office on January 3, 2012, Fitzgerald was assigned a County -owned 2007 Jeep Grand Cherokee (the "Jeep Grand Cherokee ") as a take -home vehicle to be utilized in his position as Chief Executive. Fitzgerald was offered the use of anew vehicle, but he declined the offer and opted to use the older vehicle as a cost savings to the County. The odometer reading was 74,219 miles at the time that Fitzgerald took possession of the Jeep Grand Cherokee. Fitzgerald, in his capacity as the Chief Executive, maintained possession of and utilized the Jeep Grand Cherokee from January 3, 2012, to November 12, 2014. Detectives assigned to Fitzgerald's security detail utilized the Jeep Grand Cherokee to transport Fitzgerald to events and activities occurring outside of the County Courthouse. The fuel card assigned to the Jeep Grand Cherokee was utilized to obtain fuel when necessary. The on -duty detective or Fitzgerald entered the actual odometer reading for the Jeep Grand Cherokee into the fuel pump at the time fuel was obtained. Between January 2012 and November 2014, Fitzgerald was invited to attend and speak at multiple events in his capacity as the Chief Executive. Fitzgerald made stops at some of these events in conjunction with official County business. Some of the events that Fitzgerald attended were fundraising events for candidates for public office. None of the fundraising events were for Fitzgerald's benefit. The exact miles traveled in relation to the fundraising events could not be determined. As the Chief Executive, Fitzgerald utilized the Jeep Grand Cherokee to attend political functions in conjunction with his official duties. Fitzgerald was not running for Fitzgerald, 14 -066 Page 20 reelection and was not a candidate for another public office when he was requested to attend the political functions. Fitzgerald was driven to the political functions by a detective assigned to his security detail. The exact mileage for transporting Fitzgerald to the political functions could not be determined. Fitzgerald's office continued to follow the policy implemented by the two prior Chief Executives with regard to documenting the use of Fitzgerald's County vehicle. The Daily Usage Reports for the Jeep Grand Cherokee were completed by detectives assigned to Fitzgerald's security detail, and the Compensation Calculation Forms for the Jeep Grand Cherokee were completed by Fitzgerald's Executive Secretary /Office Manager. Fitzgerald did not personally complete the Daily Usage Reports or Compensation Calculation Forms for the Jeep Grand Cherokee. The detectives assigned to Fitzgerald's security detail did not complete the Daily Usage Reports on a daily basis and primarily completed them on a quarterly basis upon notification from Fitzgerald's Executive Secretary /Office Manager of the date the records were due. The detectives created the Daily Usage Reports based on events listed on Fitzgerald's calendar. Although the detectives utilized internet mapping programs to identify mileage to and from events and locations as documented on Fitzgerald's calendar, the routes mapped by the programs were not consistently the same routes that Fitzgerald and his security detail traveled to and from events. The detectives did not consistently account for mileage for events that were attended by Fitzgerald but were not documented on his calendar. At times, the Daily Usage Reports included mileage for events that were not attended by Fitzgerald but were documented on his calendar. The Daily Usage Reports did not include mileage associated with an event or activity that Fitzgerald traveled to without his security detail if the event or activity was not documented on his calendar or he did not specifically inform the detectives of such travel after the fact. The Daily Usage Reports for the Jeep Grand Cherokee routinely documented information including specific dates of use, business miles claimed on specific dates, and business purpose descriptions that were general in relation to the events or activities and their locations. The Daily Usage Reports did not document any personal or commuting mileage. Fitzgerald's standard claim of twelve miles for round -trip commuting was common knowledge. From approximately March 31, 2012, through October 30, 2014, eleven Compensation Calculation Forms, with supporting documentation in the form of Daily Usage Reports and County Payroll Vouchers identifying the value of compensation, were submitted to the County Controller's Office in relation to Fitzgerald's use of the Jeep Grand Cherokee. Staff of Fitzgerald's office did not consult with him when they submitted the aforesaid forms. Ten Compensation Calculation Forms that were submitted for the quarters encompassing January 2012 through June 2014 documented only business miles and commuting miles. The eleventh Compensation Calculation Form was submitted for the quarter from July 2014 through September 2014 and documented commuting miles, business miles, and "other personal miles." On each Compensation Calculation Form, business miles were calculated by adding all business miles documented on the Daily Usage Reports for the quarter, and commuting miles were calculated at twelve miles per day for each weekday in the quarter. No supporting documentation was included to identify the method by which the number of "other personal miles" was calculated on the Compensation Calculation Form for the quarter from July 2014 through September 2014. In late August 2014, County Controller Chelsa Wagner ( "Wagner") initiated an audit to assess the effectiveness of measures taken to monitor usage of County -owned and leased vehicles and County fuel cards. The audit covered the period from January 2012 through September 2014. On November 6, 2014, Wagner convened a press conference Fitzgerald, 14 -066 Page 21 during which she announced that the County Controller's office had uncovered misuse of County taxpayer funds in relation to her then still ongoing audit of County -owned vehicles. Wagner alleged, among other things, that Fitzgerald had utilized his County- issued vehicle contrary to explicit policy which dictated that all employees are strictly prohibited from using County -owned vehicles for personal use. Wagner notified Fitzgerald of her findings via correspondence dated November 6, 2014. On November 12, 2014, Fitzgerald returned the Jeep Grand Cherokee and the fuel card assigned to it to the County. Fitzgerald asserts that he returned the Jeep Grand Cherokee to the County to minimize distractions resulting from Wagner's allegations. Between January 3, 2012, and November 12, 2014, Fitzgerald logged 76,386 miles on the Jeep Grand Cherokee. Fitzgerald's Daily Usage Reports and Compensation Calculation Forms documented 53,493 of those miles. Not all miles driven for business use were logged by the staff responsible for completing and maintaining Fitzgerald's Daily Usage Reports and Compensation Calculation Forms. Fitzgerald submitted a personal check dated November 12, 2014, payable to the County in the amount of $42,737.52, as reimbursement to the County for all commuting miles, business miles, and "other personal miles" accumulated on the Jeep Grand Cherokee from January 3, 2012, through November 12, 2014. The 2014 IRS mileage reimbursement rate and odometer readings were utilized to calculate the payment to the County. Fitzgerald's check was deposited into the County General Fund as miscellaneous revenue. Fitzgerald asserts that he issued the payment to the County to avoid politically motivated distractions so that he could devote full attention to County business. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations as follows: The Investigative Division will recommend the following in relation to the above allegations: That no violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa. C.S. § 1103(a) occurred when Richard Fitzgerald utilized a County vehicle to travel to politically - related events, as the miles that were determined to be political were de minimis in nature and /or occurred in conjunction with official County business. That no violation of Section 1103(a) [of the Public Official and Employee Ethics Act, 65 Pa. C.S. § 1103(a)], occurred regarding the allegation that Richard Fitzgerald utilized a County- issued credit card for the purpose of purchasing gasoline /fuel to be utilized in conjunction with traveling for non - County related events, including political events, as no evidence exists that Mr. Fitzgerald used and /or directed the use of a County- issued credit card for non - County purposes; Fitzgerald, 14 -066 Page 22 C. That no violation of Section 1103(a) [of the Public Official and Employee Ethics Act, 65 Pa. C.S. § 1103(a)], occurred regarding the allegation that Richard Fitzgerald omitted miles from official vehicle mileage logs, resulting in a private pecuniary benefit by avoiding the need to pay taxes on private, non - business mileage, as the records reflect that Mr. Fitzgerald played no role in the completion of mileage logs; and That no violation of Section 1103(a) [of the Public Official and Employee Ethics Act, 65 Pa. C.S. § 1103(a)], occurred regarding the allegation that Richard Fitzgerald utilized County resources, equipment and /or personnel for non - County purposes, including but not limited to use of a County police officer and /or County police vehicle to escort him to and from political events, as any use of County personnel and vehicles was de minimis or in conjunction with official County business transacted by Mr. Fitzgerald. The parties agree that no payment is due as Mr. Fitzgerald voluntarily issued a payment to Allegheny County in the amount of $42,737.52 on November 12, 2014, prior to the initiation of a full investigation into the above allegations, which payment represented payment for all miles accumulated on the County vehicle from January [3], 2012, to November [12], 2014. Said payment would exceed the value of any non - County use of the County owned vehicle. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 1 -2. In considering the Consent Agreement of the parties, we shall accept the recommendation of the parties for a finding that Fitzgerald did not violate Section 1103(a) of the Ethics Act when he utilized a County vehicle to travel to politically - related events. Upon taking office on January 3, 2012, Fitzgerald was assigned the County -owned Jeep Grand Cherokee as a take -home vehicle to be utilized in his position as the Chief Executive. Between January 3, 2012, and November 12, 2014, Fitzgerald utilized the Jeep Grand Cherokee to attend political functions in conjunction with his official duties. Fitzgerald, in his capacity as the Chief Executive, also utilized the Jeep Grand Cherokee to attend and speak at events, including fundraising events for candidates for public office, and he made stops at some of these events in conjunction with official County business. Per the Consent Agreement, the parties are in agreement that the travel to politically - related events was de minimis in nature and /or occurred in conjunction with official County business. Fitzgerald, 14 -066 Page 23 Based upon the Stipulated Findings and the Consent Agreement, we hold that Fitzgerald did not violate Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he utilized a County vehicle to travel to politically - related events, as the travel was de minimis in nature and /or occurred in conjunction with official County business. We accept the parties' recommendation for a finding that no violation of Section 1103(a) of the Ethics Act occurred regarding the allegation that Fitzgerald utilized a County- issued credit card for the purpose of purchasing gasoline /fuel to be utilized in conjunction with traveling for non - County related events, including political events. The parties are in agreement that no evidence exists that Fitzgerald used and /or directed the use of a County- issued credit card for non - County purposes. Accordingly, we hold that no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred regarding the allegation that Fitzgerald utilized a County - issued credit card for the purpose of purchasing gasoline /fuel to be utilized in conjunction with traveling for non - County related events, including political events, as no evidence exists that Fitzgerald used and /or directed the use of a County- issued credit card for non - County purposes. We further accept the recommendation of the parties for a finding that no violation of Section 1103(a) of the Ethics Act occurred regarding the allegation that Fitzgerald omitted miles from official vehicle mileage logs, resulting in a private pecuniary benefit by avoiding the need to pay taxes on private, non - business mileage, as the records reflect that Fitzgerald played no role in the completion of mileage logs. IRS regulations require the value of an employee's personal use of an employer - provided vehicle to be included in the individual's compensation for taxation purposes. Regulations of the IRS define commuting to and from work as personal use. In his capacity as the Chief Executive, Fitzgerald was assigned the County -owned Jeep Grand Cherokee as a take -home vehicle. The use of a take -home vehicle to commute to and from work is permitted. County Policy DCS 20 -1 provides that an elected County official who is assigned a take -home vehicle is to maintain a written record of the official's business use of the vehicle in order to allow for the calculation of the amount to be included as compensation on the official's IRS Form W -2. The Daily Usage Report documents the business, personal, and commuting mileage of the vehicle assigned to an elected official. The Daily Usage Report is utilized with the Compensation Calculation Form, which determines the compensation to be included on the elected official's IRS Form W -2. Fitzgerald did not personally complete the Daily Usage Reports or Compensation Calculation Forms for the Jeep Grand Cherokee. Detectives assigned to Fitzgerald's security detail completed the Daily Usage Reports for the Jeep Grand Cherokee based on events listed on Fitzgerald's calendar. The Daily Usage Reports did not document any personal or commuting mileage, and Fitzgerald's standard claim of twelve miles for roundtrip commuting was common knowledge. Fitzgerald's Executive Secretary /Office Manager completed the Compensation Calculation Forms for the Jeep Grand Cherokee. Not all miles driven for business use were logged by the staff responsible for completing and maintaining Fitzgerald's Daily Usage Reports and Compensation Calculation Forms. Staff of Fitzgerald's office did not consult with him when they submitted forms related to Fitzgerald's use of the Jeep Grand Cherokee to the County Controller's Office. We hold that no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred regarding the allegation that Fitzgerald omitted miles from official vehicle mileage logs, resulting in a private pecuniary benefit by avoiding the need to pay taxes on Fitzgerald, 14 -066 Page 24 private, non - business mileage, as the records reflect that Fitzgerald played no role in the completion of mileage logs. We accept the parties' recommendation for a finding that no violation of Section 1103(a) of the Ethics Act occurred regarding the allegation that Fitzgerald utilized County resources, equipment and /or personnel for non - County purposes, including but not limited to use of a County police officer and /or County police vehicle to escort him to and from political events. The parties are in agreement that any use of County personnel and vehicles was de minimis or in conjunction with official County business transacted by Fitzgerald. Accordingly, we hold that no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred regarding the allegation that Fitzgerald utilized County resources, equipment and /or personnel for non - County purposes, including but not limited to use of a County police officer and /or County police vehicle to escort him to and from political events, as any use of County personnel and vehicles was de minimis or in conjunction with official County business transacted by Fitzgerald. 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. IV. CONCLUSIONS OF LAW: 1. As the Chief Executive of Allegheny County ( "County "), Pennsylvania, from January 3, 2012, through the present, Respondent Richard J. Fitzgerald, Jr. ( "Fitzgerald ") has been 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 seg. 2. Fitzgerald did not violate Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he utilized a County vehicle to travel to politically - related events, as the travel was de minimis in nature and /or occurred in conjunction with official County business. 3. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred regarding the allegation that Fitzgerald utilized a County- issued credit card for the purpose of purchasing gasoline /fuel to be utilized in conjunction with traveling for non - County related events, including political events, as no evidence exists that Fitzgerald used and /or directed the use of a County- issued credit card for non - County purposes. 4. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred regarding the allegation that Fitzgerald omitted miles from official vehicle mileage logs, resulting in a private pecuniary benefit by avoiding the need to pay taxes on private, non - business mileage, as the records reflect that Fitzgerald played no role in the completion of mileage logs. 5. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred regarding the allegation that Fitzgerald utilized County resources, equipment and /or personnel for non - County purposes, including but not limited to use of a County police officer and /or County police vehicle to escort him to and from political events, as any use of County personnel and vehicles was de minimis or in conjunction with official County business transacted by Fitzgerald. In Re: Richard Fitzgerald, File Docket: 14 -066 Respondent Date Decided: 1/20/16 Date Mailed: 1/29/16 ORDER NO. 1687 1. As the Chief Executive of Allegheny County ( "County "), Pennsylvania, Richard J. Fitzgerald, Jr. ( "Fitzgerald ") did not violate Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), when he utilized a County vehicle to travel to politically - related events, as the travel was de minimis in nature and /or occurred in conjunction with official County business. 2. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred regarding the allegation that Fitzgerald utilized a County- issued credit card for the purpose of purchasing gasoline /fuel to be utilized in conjunction with traveling for non - County related events, including political events, as no evidence exists that Fitzgerald used and /or directed the use of a County- issued credit card for non - County purposes. 3. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred regarding the allegation that Fitzgerald omitted miles from official vehicle mileage logs, resulting in a private pecuniary benefit by avoiding the need to pay taxes on private, non - business mileage, as the records reflect that Fitzgerald played no role in the completion of mileage logs. 4. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred regarding the allegation that Fitzgerald utilized County resources, equipment and /or personnel for non - County purposes, including but not limited to use of a County police officer and /or County police vehicle to escort him to and from political events, as any use of County personnel and vehicles was de minimis or in conjunction with official County business transacted by Fitzgerald. BY THE COMMISSION, Nicholas A. Colafella, Chair Commissioner Maria Feeley did not participate in this matter.