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HomeMy WebLinkAbout1690 BoyerIn Re: Jody A. Boyer, File Docket: 15 -010 Respondent X -ref: Order No. 1690 Date Decided: 4/6/16 Date Mailed: 4/15/16 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 violations 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." 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. ALLEGATION: That Jody Boyer, a public official /public employee in her capacity as a Member of the Berrysburg Borough Council, Dauphin County, Pennsylvania, violated Section 1103(a) of the State Ethics Act (Act 93 of 1998) when she utilized the authority of her public position for the private pecuniary benefit of an immediate family member and /or a business with which an immediate family member is associated, namely Cole Boyer and /or Alpha Consulting Engineers, Inc., when she participated in discussions and actions of Borough Council, including but not limited to, motioning and /or voting to engage and /or otherwise compensate Alpha Engineering, Inc., to render engineering services on behalf of the Borough, at a time when her husband and immediate family member, Cole Boyer, was an employee and the Alpha Consulting Engineer assigned to represent the Borough. II. FINDINGS: Jody Boyer served as a Member of Berrysburg Borough Council, Dauphin County from January 4, 2010, to January 31, 2015. Berrysburg Borough Council consists of seven (7) Members and a mayor. Berrysburg Borough is located in Northern Dauphin County and has a population of approximately 367. The Borough does not have any full -time employees. Boyer, 15 -010 Page 2 b. Clerical and most financial functions are handled by Diane Kennedy, the Borough's Secretary /Treasurer. C. Roadwork is performed by Council Members on a volunteer basis with paving, snow removal and major repairs being put out for bid. 3. Cole Boyer is the husband of Jody Boyer. a. The Boyers have been Berrysburg Borough residents since approximately 2004. b. Cole Boyer has been employed by Alpha Consulting Engineers, Inc. ( "Alpha ") 115 Limekiln Road, P.O. Box G, New Cumberland, PA 17070 since approximately August 4, 2008. C. Cole Boyer's positions with Alpha included Engineer in Training ( "EIT ") and Licensed Professional Engineer. 4. Professional licenses held by Cole Boyer include licenses from the Commonwealth of Pennsylvania and State of Ohio. a. Commonwealth of Pennsylvania, Department of State, Professional Engineer # PE 079300 was initially issued on September 23, 2011, and was valid through September 30, 2015. b. State of Ohio, Professional Engineer, License # PE 78315, was issued on November 19, 2013, and is valid through December 31, 2015. 5. Alpha is an engineering firm with both public and private sector clients. a. Alpha has been in business since approximately 1993. b. John K. Murphy is the owner of Alpha. C. Alpha employs approximately twenty -eight (28) people in administrative, clerical and professional positions. d. Alpha's corporate officer roster is: John K. Murphy, President Rory L. Chapman, Chief Operating Officer Richard A. Castranio, Vice President Cathy A. Nicholls, Secretary Cathy A. Nicholls, Treasurer e. Cole Boyer does not have any ownership interest in Alpha. 6. Cole Boyer's daily work assignments are given by John Murphy or other senior Alpha staff as part of weekly staff meetings. a. Cole Boyer is not responsible for generating new customers as a condition of his employment with Alpha. b. New customers and continual business relationships are developed and fostered by Murphy and /or other senior Alpha employees. Boyer, 15 -010 Page 3 C. Cole Boyer's compensation is based on an hourly rate regardless of the work assignment. 7. Prior to March 14, 2011, Alpha did not have any business relationship with Berrysburg Borough. 8. Berrysburg Borough began the formal process of searching for an Engineeraround September 2010. a. The decision was motivated primarily because the Borough was required to implement a storm water management plan by December 24, 2010, to be in compliance with Department of Environmental Protection ( "DEP ") regulations. b. The Borough did not previously have a contractual relationship with any engineering firms. C. The Borough had been discussing storm water management during the summer months of 2010. 9. During July and August 2010, Cole Boyer was informally advising the Borough on storm water issues at no cost to the Borough, prior to any official discussions on the Borough's engineering needs. a. Cole Boyerwas voluntarily providing Council with information on storm water management issues. b. Cole Boyer was not a licensed professional engineer at the time but had the EIT designation with Alpha. 10. Minutes from Berrysburg Borough Council meetings reflect Cole Boyer provided comments on storm water issues during Council's July 26, 2010, and August 9, 2010, meetings as indicated below: a. Julv 26, 2010 Cole Boyerwould be willing to answer any questions Council may have with regard to the storm water management requirements at the August regular meeting. Present: Troutman, Boyer, Harner, Weaver b. August 9, 2010 Cole Boyer discussed the storm water management comprehensive plan that needs to be adopted by the Borough by December 24, 2010, and stated that the solicitor should know the law regarding the plan. Cole also stated that the borough should adopt a zoning ordinance. Present: Troutman, Mace, Boyer, Bechtel, Snyder, Harner, Weaver C. Jody Boyer was present at both of these meetings and participated in the discussions. d. Cole Boyer was invited to the July 26, 2010, meeting by Mayor Ward and Councilman Weaver. 11. Minutes of the September 27, 2010, Council meeting reflect that a storm water management plan was still being developed and that the Borough would need to contract with an engineering service to implement a plan. Boyer, 15 -010 Page 4 a. Both Jody Boyer and Cole Boyer provided input to Council regarding development of the scope of work for engineering services. b. Council sought Jody Boyer's input on the storm water issue due to her husband's employment with Alpha. 12. Between July 26, 2010, and March 14, 2011, Jody Boyer participated in discussions and official actions taken by Council resulting in identifying firms to be solicited to respond to a Request for Proposals ( "RFP ") to serve as the Borough Engineer. a. Boyer participated in Council discussions regarding the need forengineering services, the scope of work and solicitations for RFPs for engineering services. b. Boyer compiled a list of four (4) engineering firms including Alpha to be sent the RFP for engineering services. The list compiled by Jody Boyer was done after she consulted with her husband. 13. Minutes from Berrysburg Borough Council Meetings held between September 27, 2010, and February 7, 2011, confirm Jody Boyer participated in discussions on possible engineers, the storm water management plan, engineering proposal guidelines, the Engineering RFP and review of RFPs as follows: a. September 27, 2010 The storm water management plan is still being worked on and an engineer must be retained by the borough for the plan. Jody Boyer made a motion to compile a list of requirements in the search for an engineer, second by Robin Snyder, all in favor. There was a discussion stating that the borough would already have an engineer if the borough had not opted out of the Universal Building Code. Present: Troutman, Boyer, Snyder, Mace, Harner, Weaver b. October 11, 2010 Jody Boyer discussed possible engineers for the storm water management plan. Present: Troutman, Mace, Boyer, Snyder, Harner, Weaver C. November 8, 2010 The storm water management plan was discussed including the engineer needed for the plan. Jody Boyer has a list of 4 possible engineers which council discussed. Present: Troutman, Boyer, Bechtel, Snyder, Harner, Weaver d. December 13, 2010 Engineering proposal guidelines were discussed Present: Troutman, Mace, Boyer, Snyder, Harner, Weaver e. January 10, 2011 Jody Boyer made a motion to accept the Engineering Services Request for Proposals draft, second by Robin Snyder, all in favor. Present: Troutman, Mace, Bechtel, Boyer, Snyder, Harner, Weaver f. February 7, 2011 Engineering proposals were opened and will be reviewed by council Boyer, 15 -010 Page 5 members for later discussion and appointment of an engineer. Present: Troutman, Mace, Boyer, Harner, Weaver 14. The four (4) firms Jody Boyer identified to receive the Borough's RFP were Alpha, HRG, Pennoni, and Glace Associates. a. Council was aware that Cole Boyer was an employee of Alpha at the time Jody Boyer identified Alpha as one of the firms to be contacted. b. Boyer provided the list of firms at the November 8, 2010, Council meeting. 15. Council, with Jody Boyer participating, approved the RFP requirements on January 10, 2011. a. Jody Boyer made the motion and participated in the vote. 16. Borough Secretary/Treasurer Diane Kennedy mailed the RFP information to Alpha, HRG, Pennoni and Glace Associates on or about January 14, 2011. a. The RFPs were sent to companies recommended by Jody Boyer. 17. Berrysburg Borough's RFP for professional engineering services dated January 14, 2010, (wrong year listed, actually January 14, 2011) included the following: a. "The Borough of Berrysburg in Dauphin County, Pennsylvania is accepting proposals from engineering consulting firms to provide the professional engineering services of a Municipal Engineer. The Municipal Engineer will be responsible for controlling and directing the engineering matters prescribed by the Berrysburg Borough Council, including applicable inspections. The Engineer will perform those duties prescribed by Council related to the ordinance development, the construction, reconstruction, maintenance and repair of streets, pavements, culverts, and the Borough's storm water drainage system. The Engineer will also prepare plans, specifications, and estimates for all engineering work prescribed by the Borough." b. Information included in the RFP provided that proposals must be received by the Borough Secretary no later than 7 :00 p.m. E.S.T. Monday, February 7, 2011, with any anticipated selection occurring during Council's March 14, 2011, meeting. 18. The Borough's RFP included the following outline of services desired to be provided: Assistance with Borough Storm Water Management Ordinance reviews and amendments. The review of Storm Water Management site plans and the conducting of required inspections to ensure compliance of the approved site plans. The review of Borough building permit applications and the conducting of any required building or construction inspections. The review of Outside Fuel Burning Appliance ( "OFBA ") Applications and the conducting of any required OFBA inspections. Assistance with the development of a Borough Comprehensive Plan. Boyer, 15 -010 Page 6 Assistance with the development of Ordinances related to subdivision and land development, land use and zoning. Assistance in developing a Borough Street Surface Maintenance and Improvement Program. Assistance in developing a Borough Storm Water Drainage System Maintenance and Improvement Program. Assistance with sidewalk and curb improvements for American Disability Act Accessibility Compliance, and other related infrastructure improvement projects. Assistance in grant obtainments and /or any other available financial funding source obtainments, for infrastructure related improvement projects. 19. Berrysburg Borough received RFP responses from Alpha, HRG and Pennoni. a. Glace Associates did not respond to the RFP request in a timely manner and was not considered by Council. 20. All three (3) engineering services proposals received by the Borough included an itemized breakdown of proposed engineering costs by category. a. Each of the three (3) proposals list fees for some of the services differently, with the contents of the position column being a combination of information taken from all three (3) proposals as follows: Position HRG Pennoni Alpha Principal $140.00 Borough Engineer $110.00 $100.00 Senior Professional $130.00 $106.00 Project Professional $115.00 $90.00 Engineer $75.00 Graduate Engineer $80.00 En ineerin /GIS Technician $70.00 Architect $95.00 Staff Professional 1 $90.00 Staff Professional 2 $95.00 Senior Technician $95.00 Surveyor $90.00 Technician 1 $75.00 $63.00 Technician 2 $90.00 $74.00 Construction Inspector $63.00 Certified Building Code Official $70.00 2 -Man Survey Crew $120.00 $110.00 3 -Man Survey Crew $140.00 GPS Survey Crew $125.00 Environmental Specialist/ Geologist $80.00 Administrative Staff $55.00 $45.00 $45.00 Boyer, 15 -010 Page 7 Junior Technician 1 $50.00 21. For the position of Borough Engineer, Alpha and Pennoni both submitted a quote specifically identified as being for that position. a. Alpha's quote was $100.00 per hour, while Pennoni's was $110.00. b. HRG's quotes for engineering services were higher at $140.00 per hour for Principal, $130.00 per hour for Senior Professional and $115.00 per hourfor Project Professional. 22. Alpha's proposal to the Borough was submitted under the signatures of John K. Murphy, P.E., P.L.S. and Jerome R. Spease, P.E., P.L.S., S.E.O. a. Alpha's proposal includes company information, scope of services, resumes of key personnel, description of representative projects, references and a schedule of engineering service fees. b. Under scope of services [in] response to the Borough's RFP, Alpha's proposal "is to have Jerome (Jerry) Spease, P.E., P.L.S. to serve as your designated Borough Engineer. John Murphy, P.E., P.L.S. will provide backup if Jerry is unavailable. Jerry will work closely with Berrysburg Borough Council and perform all work as directed by Council... Dan Jorich can and /or will provide review of Borough building permit applications and conduct required building and construction inspections. He currently is not certified in electrical plan review or inspection. Alpha can provide this through an outside agency, or as many other municipalities do, you can provide a list of certified personnel that the applicant can use for this review and inspection." C. No reference is made of Cole Boyer providing services for the Borough through Alpha. d. Resumes of key personnel provided included Jerome R. Spease, John K. Murphy, Daniel K. Jorich, Jr. and Cole J. Boyer. e. Boyer's resume includes the following information on education, professional registrations /certifications and experience. 1. Education: Associates of Applied Sciences — State University of New York at Delhi- Construction Technology — Spring 1997 Associates of Applied Science — Pennsylvania College of Technology — Survey Technologies — Fall 2001 Bachelor of Science — Pennsylvania College of Technology — Civil Engineering Technology — Spring 2002 Professional Registrations /Certifications: Engineer in Training — Pennsylvania — ET004059 Surveyor in Training — Pennsylvania — ST000590 2. Experience Summary: Mr. Boyer has over ten year[s] of combined surveying and engineering experience in multiple areas of civil engineering and land development. Some of his duties have included site layout, grading Boyer, 15 -010 Page 8 and earth work analysis, the design of erosion and sediment control plans, and the completion of sanitary sewer modules and exemptions. He also prepares the necessary technical drawings and documents that are required for a project. Cole's major area of expertise is in hydraulics and hydrology. This would include the complete design of storm sewer conveyance systems and storm water basins. He also evaluates existing storm water facilities to determine if they still function as originally designed orwhether necessary upgrades will need to be made. Cole regularly completes the various environmental permit applications that would be need(ed) to construct a project. These would include the completion and submission of NPDES permits, general permits and joint permits. Also, he can prepare the necessary flood studies using the Army Corp of Engineers HDC -RAS program. Cole is also experienced in other areas such as the design of public roadways, utility and surveying. He has been involved with the design of roadway systems, as well as modified, rehabilitate and widened existing roads. He has prepared and submitted the necessary PennDOT Highway Occupancy Permit Applications for work to be completed on and along the state's highway. Cole also has been involved with the design of sanitary sewer system extensions, force mains for several family residents, and water main extensions. He has experience in preparing survey base maps which includes the existing topography and public utilities along with help determining the overall project site boundary. 23. Representatives from Alpha, HRG and Pennoni each had the opportunity to discuss their proposals before Council during Council's March 14, 2011, meeting. John K. Murphy, owner of Alpha, attended the meeting on behalf of Alpha's RFP response. Jody Boyer was present at this meeting for the RFP discussions. 24. Minutes of Council's March 14, 2011, meeting record Jody Boyeras abstaining from the vote to hire an engineer following the engineer presentations as indicated below. March 14, 2011 Engineering proposals were received from Pennoni, HRG and Alpha. Timothy Weaver made a motion to write the votes on ballots, second by Mervin Mace, all in favor except for Jody Boyer who abstained from voting. Alpha received 5 votes and HRG received 1 vote. Timothy Weaver made a motion to accept Alpha as engineering firm for the borough, second by Mervin, all in favor except for Jody Boyer who abstained. Present: Troutman, Snyder, Bechtel, Mace, Boyer, Harner, Weaver 25. Berrysburg Borough Council awarded the engineering services contract to Alpha based on the following factors: Alpha's lower quote for Borough Engineer and engineering services at $100.00 and $75.00 respectively. Council knew that Alpha was the employer of Cole Boyer. Boyer, 15 -010 Page 9 C. Council intended on using the services of Cole Boyer once he obtained his Professional Engineer License from the Commonwealth. d. Council believed that the Borough would get more value for its money by using Alpha since Cole Boyer was already familiar with Borough roads and storm water management issues. 26. Correspondence dated March 14, 2011, from Berrysburg Borough Council was forwarded to J. R. Spease, P.E., P.L.S., S.E.O, Senior Project Manager, Alpha advising that Alpha's proposal for engineering services was accepted and that Alpha was chosen to provide municipal engineering services to the Borough. a. The Borough requested Alpha submit a service contract and direct any questions to Mayor Michael J. Ward. b. Mayor Michael Ward reported that the engineering contract had been signed during Council's April 11, 2011, meeting. 1. Jody Boyer was present at that meeting. 27. On April 11, 2011, a Municipal Engineering Service Agreement was executed between Alpha and Berrysburg Borough. a. This agreement was signed by Scott Harner, Council President and John K. Murphy, President of Alpha. b. Designated representatives are listed as Tim Weaver for Berrysburg Borough Council and Jerome (Jerry) Spease for Alpha. C. The agreement includes the fee schedule that was part of Alpha's February 7, 2011, proposal. d. The term of the agreement is listed as from April 10, 2011, through December 31, 2012. e. The agreement provided for the following scope of services: "Provide services for engineering, building permits, project management, administrative support, and related services that are requested by the Borough. The following are only examples of the type of work and services that will be furnished and all services will be performed as directed by the Borough. 1. Alpha will assign a staff member to serve the Borough. This staff member will be the Borough's main contact with Alpha to coordinate Borough services. 2. Attend various Borough meetings as requested by the Borough. 3. Assistance with Borough Storm Water Management Ordinance reviews and amendments. 4. The review of Storm Water Management site plans and the conducting of required inspections to ensure compliance of the approved site plans. Boyer, 15 -010 Page 10 5. The review of Borough building permit applications and the conducting of any required building or construction inspections. 6. The review of OFBA Applications and the conducting of any required OFBA inspections. 7. Assistance with the development of a Borough Comprehensive Plan. 8. Assistance with the development of Ordinances related to subdivision and land development, land use, and zoning. 9. Assistance in developing a Borough Street Surface Maintenance and Improvement Program. 10. Assistance in developing a Borough Storm Water Drainage System Maintenance and Improvement Program. 11. Assistance with sidewalk and curb improvements for American Disabilities Act accessibility compliance, and other related infrastructure improvement projects. 12. Assistance in grant obtainments and /or any other available financial funding source obtainments, for infrastructure related improvement projects. 13. Conduct traffic studies. 14. Prepare contracts, specifications, drawings, project management and inspections as needed. 15. Any other services as requested by Borough Council. 28. Cole Boyer began providing engineering services to Berrysburg Borough as an Alpha employee by May 9, 2011. 29. Minutes from Council's May 9, 2011, meeting reflect Jody Boyer participated in Council discussions relating to Council direction being needed to provide to "the engineering firm" (Alpha) "goals for the future and the storm water ordinance." Minutes include the following recorded discussion: a. May 9, 2011 Jody Boyer discussed the engineering firm which needs direction from the council regarding goals for the future; and the storm water ordinance. Tim Weaver questioned if the liquid fuels monies could be used to pay the engineering firm for recommendations regarding the highway repairs and maintenance. The secretary will contact PennDot regarding the above. Present: Troutman, Snyder, Mace, Boyer, Harner, Weaver 30. By way of correspondence dated May 9, 2011, from Alpha under the signature of Cole Boyer, to Scott Harner, President of Berrysburg Borough Council Boyer memorialized topic areas which he discussed on April 19, 2011, with Council Members Harner, Weaver, Troutman and Mayor Ward relating to potential engineering services, projects and grants. a. In that correspondence, Cole Boyer provides the Borough with topic areas to consider for engineering services. These include the following: Boyer, 15 -010 Page 11 Revise the existing Storm Water Management Ordinance to address any issues that could affect the Borough. 2. Prepare a Comprehensive Plan for Berrysburg Borough or coordinate with a Joint Municipal Comprehensive Plan. 3. Prepare a maintenance program that would assist the Borough Council in determining any problems with the existing infrastructure (i.e. road surface, storm sewer system, curbing, sidewalks, etc.), as well as provide some guidance to the Council in forecasting future problems that would need to be addressed when formulating the fiscal budget for each year. 4. Assist in determining the options to provide additional water to supplement the existing facility located within the Community Center. This additional water would help combat any fire located within the Borough's limits. 5. Analyze the existing parking and sight distance conditions at the square. We would also suggest that Council consider preparing an overall base map of the Borough. This map would be key in the completion of the comprehensive plan and will assist with the formulation of the maintenance plan. b. Cole Boyer and Jerry Spease are listed as the points of contact for the Borough with Alpha on the proposal. 31. During Council's June 13, 2011, meeting, Jody Boyer reported to Council "that Cole Boyer is now our contact as engineer, not Jerry Spease, and Cole's fee will increase." a. Alpha invoices submitted to Berrysburg Borough reflect Cole Boyer's services were billed at a rate of $75.00 per hour. The $75.00 per hour rate Cole Boyer's time was billed at was $25.00 per hour lower than the $100.00 hourly rate of Spease. b. The $75.00 per hour rate was the rate quoted by Alpha for "Engineer." C. The change was made as a cost savings measure for both Alpha and the Borough. Boyer's time was billed to the Borough at the rate of $75.00 per hour, rather than the agreed upon rate for Spease as Borough Engineer at $100.00 per hour. d. The only communication made to the Borough about the change in engineers was made by Jody Boyer at the June 13, 2011, Council Meeting. 32. Between May 9, 2011, and August 8, 2011, the following discussions occurred at Council meetings regarding potential engineering needs, a Borough road inspection, and approval of fee services for Alpha for the street maintenance plan. Council meeting minutes covering this time frame memorialize Jody Boyer's participation in discussions as follows: Boyer, 15 -010 Page 12 a. May 9, 2011 Jody Boyer discussed the engineering firm which needs direction from the council regarding goals for the future; and the storm water ordinance. Tim Weaver questioned if the liquid fuels monies could be used to pay the engineering firm for recommendations regarding the highway repairs and maintenance. The secretary will contact PennDot regarding the above. Present: Troutman, Snyder, Mace, Boyer, Harner, Weaver June 13, 2011 Jody Boyer reported that Cole Boyer is now our contact as engineer not Jerry Spease and Cole's fee will increase. Present: Troutman, Bechtel, Mace, Boyer, Harner, Weaver July 11, 2011 Road projects — council members and the engineer are still evaluating the roads in the borough. Present: Troutman, Snyder, Bechtel, Mace, Boyer, Harner, Weaver. 33. On July 5, 2011, Jerry R. Spease, P.E., P.L.S., S.E.O submitted a proposal on behalf of Alpha to Berrysburg Borough for a "Street Maintenance and Improvement Program" at an estimated cost of $3,000.00. a. The proposal included the following scope of services: • Prepare an assessment of Berrysburg Borough's roadway and storm sewer systems: ° Review the existing roadway and storm sewers conditions with the Borough's Road Committee. • Prepare a narrative explaining our findings regarding areas of concern. • Provide a "draft" Maintenance and Improvement Program for Borough review. ° Present finding to Borough Council and /or Road Committee • Provide estimated quantities and cost for the paving project to be considered for 2011. • Prepare bid documents and contract for the paving project to be completed in 2011. 34. This proposal was accepted by Berrysburg Borough Council during its August 8, 2011, meeting, [which included] Jody Boyer's participation as reflected below: a. August 8, 2011 Old Business: Road project — Timothy Weaver is the contact individual for Alpha Engineers. Alpha is preparing a seven year plan for street maintenance and improvement program. Timothy has received an estimate of $3,000 to prepare the above plan. Alpha will make a schedule of street repairs, write all proposals, and prepare bids to be sent out to contractors. Several council Boyer, 15 -010 Page 13 members and Cole Boyer, engineer assigned to Berrysburg Borough, have completed a walk around the borough evaluating the streets. Jody Boyer also commented that Jerry Spease (from Alpha) and Scott Lehman (the borough's Penn DOT representative) know each other. Timothy Weaver received an additional letter from Alpha regarding the streets that need addressed this year and the worn and faded street signs that need replaced. Jody Boyer made a motion to pay the estimated fee based on scope of services in the amount of $3,000 to Alpha Engineers, second by Janet Bechtel, all in favor. Present: Troutman, Snyder, Bechtel, Mace, Boyer, Harner, Weaver b. The agreementwas signed by Councilman Timothy Weaver, accepting icon behalf of Berrysburg Borough on August 8, 2011. C. The agreement included the same fee schedule previously submitted by Alpha to the Borough. 35. Prior to making the motion and voting at the August 8, 2011, meeting to approve Alpha's scope of service fees, Jody Boyer was told by Secretary /Treasurer Diane Kennedy that she (Boyer) should not make the motion or vote on the motion due to a potential conflict of interest. a. Kennedy was referring to a potential conflict due to Boyer's husband Cole's employment with Alpha. 36. Jody Boyer admitted to State Ethics Commission ( "SEC ") Investigators on November 3, 2014, that she made the motion and subsequently voted in favor of the agreement with Alpha based on her belief that it was permissible for her to do so, since the Borough had already had a contract with Alpha. 37. Since 2010, Berrysburg Borough has used the following process for the routine payment of bills. a. Monthly bill to be paid are compiled by the Secretary /Treasurer. b. The Secretary /Treasurer will verbally identify some non - recurring bills during Council meetings, prior to a vote to approve. C. Council is not normally made aware of recurring bills such as utility and personnel costs prior to voting to approve the monthly payment of bills. d. Council is provided with a monthly Treasurer's Report which details checks issued the prior month. e. Bill lists are voted on in their entirety by a single motion. Checks are manually signed by the Secretary /Treasurer and either the Council President, or Vice- President, in the absence of the President. Jody Boyer did not have signature authority on any Berrysburg Borough financial accounts. Boyer, 15 -010 Page 14 38. Between August 25, 2011, and June 30, 2012, Alpha submitted two (2) invoices for payment totaling $3,300.00. a. These invoices were for work performed by Cole Boyer as part of the $3,000.00 approved scope of work and an additional $300.00 for ten (10) copies of his street maintenance report at an additional cost of $30.00 each. b. Borough meeting minutes and financial records confirm that Jody Boyer participated in Council action taken authorizing the payment of these invoices. C. These payments were approved as part of Council's routine payment of bills. 39. Alpha submitted invoice number 10187, dated August 25, 2011, in the amount of $862.50, to the Borough for 11.5 hours of services provided by Cole Boyer, identified as Street Maintenance and Improvement Programs. a. This invoice is identified as being paid August 26, 2011, by state fund check number 1033. b. Check number 1033 in the amount of $862.50 was made payable from the Berrysburg Borough State Fund Account [account number redacted] maintained at Edward Jones. C. The front side of the check is signed by Secretary /Treasurer Diane Kennedy and Council Member Scott Harmer. d. The memo portion of the check is Cole Boyer services. e. Borough State Fund check number 1033 in the amount of $862.50 was approved by a 7 -0 vote of Council on September 12, 2011. 40. Alpha invoice number 11044, dated June 30, 2012, in the amount of $2,437.50, was for 28.5 hours of services provided by Cole Boyer, totaling $2,137.50, and preparation of ten (10) 2012 Street Maintenance Reports, at a cost of $30.00 a piece, for a total of $300.00. a. Fees charged are identified for the preparation of roadway maintenance and paving schedule and for doing design services as necessary. b. This invoice was paid by Berrysburg Borough State Fund check number 1004, dated August 13, 2012, in the amount of $2,437.50. C. This check is signed by Councilman Robin Snyder and Secretary /Treasurer Diane Kennedy. d. This check was issued from the Borough's State Fund Account maintained by Edward Jones [account number redacted]. e. Invoice No. 11044 is listed in the memo portion of the check. 41. Jody Boyer participated in Council actions taken on September 12, 2011, and August 13, 2012, approving two (2) payments totaling $3,300.00 to Alpha. a. Borough State Fund check number 1033 in the amount of $862.50 was approved by a 7 -0 vote of Council on September 12, 2011. Boyer, 15 -010 Page 15 b. Borough State Fund check number 1004 in the amount of $2,437.50 was approved by a 6 -0 vote of Council on August 13, 2012. 42. On June 4, 2013, the Pennsylvania Department of the Auditor General released a Liquid Fuels Fund audit report for Berrysburg Borough covering the period January 1, 2011, to December 31, 2012. a. A related party transaction involving Council Member Jody Boyerwas noted as a specific audit finding. b. Excerpts from the related party transaction identified the following potential conflict of interest: "Our examination disclosed that the borough expended $862.50 during 2011 and $2,437.50 during 2012 from the Liquid Fuels Tax Fund for engineering services provided by a council member's husband. Due to the council member's husband's financial interest in the company and the lack of an open and public award process, these contracts appear to violate The Borough Code and the Public Official and Employee Ethics Act. Therefore, they should not have been entered into by the borough. Because these contracts violate The Borough Code and the Ethics Act, the borough could be required by the Pennsylvania Department of Transportation to reimburse $3,300.00 to its Liquid Fuels Tax Fund." C. Included with the audit report was a stated recommendation that the Borough reimburse $3,300.00 to its Liquid Fuels Tax Fund upon official notification by the Department of Transportation. d. The Borough's official response was in agreement with the related party transaction finding. 43. During Council's June 9, 2014, meeting, correspondence was received from PennDOT regarding the Liquid Fuels Tax Fund audit which advised the Borough to reimburse the fund for $3,300.00 with future Liquid Fuels allocations being contingent upon proper reimbursement. a. Councilman Timothy Weaver made a motion to pay the State Fund the above stated amount, [which motion was seconded] by Crystal Scheib, with all [Council Members] in favor with the exception of Jody Boyer, who abstained. b. The Borough subsequently transferred $3,300.00 from its General Operating Account to the Liquid Fuels Account on June 11, 2014. 44. Jody Boyer participated in Council action occurring on February 11, 2013, to approve a payment in the amount of $115.00 issued to Alpha. a. Alpha invoice number 11540, dated December 31, 2012, in the amount of $115.00 was for Cole Boyer's attendance at a Borough Council meeting held on December 27, 2012. b. The Borough's bills to be paid on February 11, 2013, were approved by a 7- 0 vote, with Boyer participating. C. This invoice was paid by Borough General Fund check number 3872 in the amount of $115.00, dated February 11, 2013. Boyer, 15 -010 Page 16 45. Jody Boyer began abstaining from issues relating to compensated services provided by her husband Cole Boyer /Alpha as a result of the related party findings contained in the Department of the Auditor General Liquid Fuels Fund Audit Report. a. Effective October 14, 2013, Boyer began abstaining from official actions taken by Council to approve the monthly payment of bills which included payments to Alpha. 46. Alpha has continued to perform compensated engineering services to the Borough since that time. a. Alpha submitted six (6) invoices to the Borough between September 30, 2013, and July 31, 2015. Jody Boyer abstained from approving all six (6) invoices. 47. On December 9, 2013, Berrysburg Borough Council President Robin P. Snyder signed a Municipal Services Agreement with Alpha dated November 7, 2013. a. This agreement was for municipal staff engineering services to be provided to the Borough from the date of acceptance through December 31, 2015. b. The scope of services to be provided are the same as contained in the first "Municipal Engineering Service Agreement" dated April 11, 2011. C. The fee schedule remained the same, with the only major change being that Cole J. Boyer, P.E. was identified as the designated representative on behalf of Alpha. d. This motion to approve the Alpha agreement passed by a 6 -0 vote of Council with Boyer on record as abstaining. 48. The following chart details total payments issued by Berrysburg Borough between August 2011 and July 2015 to Alpha which included the gross pay of Cole Boyer: a. Invoice Date Invoice # Invoice Amount Hours Rate Gross Pa 8/25/11 10187 $862.50 11.50 $26.00 $299.00 6/30/12 11044 $2,437.50 28.50 $26.00 $741.00 12/31/12 11540 $115.00 2.00 $28.00 $56.00 9/30/13 12292 $472.50 3.50 $28.00 $98.00 7/31/14 13055 $225.00 3.00 $28.00 $84.00 9/30/14 13218 $750.00 10.00 $28.00 $280.00 11/30/14 13387 $225.00 3.00 $28.00 $84.00 6/30/15 13912 $75.00 1.00 $28.00 $28.00 7/31/15 14003 $225.00 3.00 $28.00 $84.00 Totals $5,387.50 65.50 $1,754.00 49. Jody Boyer's uses of authority of her public position as a Member of Berrysburg Borough Council resulting in the Borough contracting with a business with which her husband is associated included the following: Boyer, 15 -010 Page 17 a. Participated in Council discussions regarding the need for an engineer to handle Borough storm water management needs in 2010 as Cole Boyerwas advising Council on the same. b. Participated in Council discussions determining a scope of work to be included as part of the RFP for engineering services. C. Identified Alpha, her husband's employer, as one of the engineering firms from which the Borough would solicit a response to its RFP. d. Made the motion and voted during Council's January 10, 2011, meeting to accept the Engineering Services Request for Proposals draft. e. Reviewed and participated in Council discussions on the [proposals] submitted by Alpha, HRG and Pennoni during Council's February 7, 2011, and March 14, 2011 meetings. Participated in Council discussions during the May 9, 2011, meeting regarding engineering direction and storm water management goals for Alpha. g. Advised Council on June 13, 2011, that Cole Boyer was replacing Jerry Spease as the Borough Engineer. h. Made the motion and voted on August 8, 2011, to pay an estimated fee of $3,000.00 to Alpha for preparation of a seven (7) year street maintenance and improvement plan. Participated in Council action taken on September 12, 2011, August 13, 2012, and February 11, 2013, approving three (3) payments issued to Alpha totaling $3,415.00. $862.50 payment approved by Council on September 12, 2011. 2. $2,437.50 payment approved by Council on August 13, 2012. 3. $115.00 payment approved by Council on February 11, 2013. 50. Alpha, a business with which Cole Boyer, a member of Jody Boyer's immediate family (her husband) is associated, realized a private pecuniary gain of $5,387.50 as a result of engineering services it provided to Berrysburg Borough. a. Cole Boyer, Jody Boyer's husband, received gross earnings of $1,754.00 as a result of engineering services he provided the Borough through his employment with Alpha. III. DISCUSSION: As a Council Member of Berrysburg Borough ( "Borough ") from January 4, 2010, to January 31, 2015, Respondent Jody A. Boyer, hereinafter also referred to as "Respondent," "Respondent Boyer," and "Boyer," 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 allegation is that Boyer violated Section 1103(a) of the Ethics Actwhen she, as a Member of Borough Council, utilized the authority of her public position for the private pecuniary benefit of an immediate family member and /or a business with which an Boyer, 15 -010 Page 18 immediate family member is associated, namely Cole Boyer and /or Alpha Consulting Engineers, Inc. ( "Alpha "), when she participated in discussions and actions of Borough Council, including but not limited to, motioning and /or voting to engage and /or otherwise compensate Alpha to render engineering services on behalf of the Borough, at a time when her husband and immediate family member, Cole Boyer, was an employee and the Alpha Engineer assigned to represent the Borough. 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 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. Borough Council consists of seven Members. Respondent Boyer served as a Borough Council Member from January 4, 2010, to January 31, 2015. In or about September 2010 the Borough began the formal process of searching for a Borough Engineer. The search was motivated primarily by the fact that the Borough was required to implement a storm water management plan to be in compliance with Department of Environmental Protection regulations. The Borough did not previously have a contractual relationship with any engineering firms. Boyer, 15 -010 Page 19 Respondent's husband, Cole Boyer, has been employed by engineering firm Alpha since approximately August 4, 2008. Cole Boyer's positions with Alpha included Engineer in Training ( "EIT ") and Licensed Professional Engineer. Cole Boyer does not have any ownership interest in Alpha, and he is not responsible for generating new customers as a condition of his employment with Alpha. Cole Boyer's compensation is based on an hourly rate regardless of the work assignment. During July and August 2010, Cole Boyer provided informal advice to the Borough on storm water issues at no cost to the Borough, prior to any official discussions on the Borough's engineering needs. Cole Boyer was not a licensed professional engineer at the time but had the EIT designation with Alpha. Between July 26, 2010, and March 14, 2011, Respondent participated in discussions and official actions taken by Council resulting in identifying firms to be solicited to respond to a Request for Proposals ( "RFP ") to serve as the Borough Engineer. At Council's September 27, 2010, meeting, both Respondent and Cole Boyer provided input to Council regarding development of the scope of work for engineering services. Council sought Respondent's input on the storm water issue due to her husband's employment with Alpha. Respondent made a motion and participated in a unanimous vote of Council to compile a list of requirements in the search for an engineer. At Council's October 11, 2010, meeting, Respondent discussed possible engineers for the storm water management plan. At Council's November 8, 2010, meeting, Respondent provided a list of fourfirms to receive the Borough's RFP for engineering services, namely, Alpha, HRG, Pennoni, and Glace Associates. Respondent compiled the list after she consulted with her husband, Cole Boyer. Council was aware that Cole Boyer was an employee of Alpha at the time Respondent identified Alpha as one of the firms to be contacted. At Council's January 10, 2011, meeting, Respondent made a motion and participated in a unanimous vote of Council to accept the Engineering Services Request for Proposals draft. On or about January 14, 2011, Borough Secretary /Treasurer Diane Kennedy ( "Kennedy ") mailed the RFP information to Alpha, HRG, Pennoni and Glace Associates. The Borough received RFP responses from Alpha, HRG and Pennoni as detailed in Fact Finding 20. For the particular position of Borough Engineer, Alpha's quote was the lowest at $100.00 per hour. Alpha's proposal to the Borough was submitted under the signatures of John K. Murphy ( "Murphy ") - -who is the owner and President of Alpha- -and Jerome R. Spease ( "Spease "), P.E., P.L.S., S.E.O. Per the Alpha proposal, Spease was to serve as the designated Borough Engineer. No reference was made to Cole Boyer providing services for the Borough through Alpha. However, Cole Boyer's resume was among those provided to the Borough as part of Alpha's response to the RFP. At Council's March 14, 2011, meeting, Representatives from Alpha, HRG and Pennoni each had the opportunity to discuss their proposals before Council. Murphy attended the meeting on behalf of Alpha's RFP response. Respondent was present at this meeting for the RFP discussions. Alpha was chosen to provide municipal engineering services to the Borough. Minutes of Council's March 14, 2011, meeting record Respondent as abstaining from the vote to hire Alpha as the Borough Engineer. Borough Council awarded the engineering services contract to Alpha in part because Council knew that Alpha was the employer of Cole Boyer, Council intended on Boyer, 15 -010 Page 20 using the services of Cole Boyer once he obtained his Professional Engineer License from the Commonwealth, and Council believed that the Borough would get more value for its money by using Alpha due to Cole Boyer's familiarity with Borough roads and storm water management issues. On April 11, 2011, a Municipal Engineering Service Agreement was executed between Alpha and the Borough. The term of the agreement was from April 10, 2011, through December 31, 2012. Cole Boyer began providing engineering services to the Borough as an Alpha employee by May 9, 2011. Minutes from Council's May 9, 2011, meeting reflect Respondent participated in Council discussions relating to Council direction being needed to provide to Alpha "goals for the future and the storm water ordinance." Fact Finding 29. During Council's June 13, 2011, meeting, Respondent reported to Council "that Cole Boyer is now our contact as engineer, not Jerry Spease, and Cole's fee will increase." Fact Finding 31. The only communication made to the Borough about the change in engineers was made by Respondent at the June 13, 2011, Council Meeting. Alpha invoices submitted to the Borough reflect Cole Boyer's services were billed at a rate of $75.00 per hour, which was $25.00 per hour lower than the $100.00 hourly rate of Spease. The change was made as a cost savings measure for both Alpha and the Borough. On July 5, 2011, Spease submitted a proposal on behalf of Alpha to the Borough for a "Street Maintenance and Improvement Program" at an estimated cost of $3,000.00. This proposal was accepted by Borough Council during its August 8, 2011, meeting. Respondent made a motion and participated in the unanimous vote of Council to pay the estimated fee to Alpha based on scope of services in the amount of $3,000. Prior to making the motion and voting at the August 8, 2011, meeting to approve Alpha's scope of service fees, Respondent was told by Kennedy that she (Respondent) should not make the motion or vote on the motion due to a potential conflict of interest. Kennedy was referring to a potential conflict due to Respondent's husband's employmentwith Alpha. Respondent has indicated to Investigators of this Commission that she made the motion and subsequently voted in favor of the agreement with Alpha based on her belief that it was permissible for her to do so since the Borough already had a contract with Alpha. Between August 25, 2011, and June 30, 2012, Alpha submitted two invoices for payment totaling $3,300.00. These invoices were for work performed by Cole Boyer as part of the $3,000.00 approved scope of work and an additional $300.00 for ten copies of his street maintenance report at an additional cost of $30.00 each. Respondent participated in unanimous Council votes on September 12, 2011, and August 13, 2012, approving two payments totaling $3,300.00 to Alpha for these invoices. Respondent participated in a unanimous Council vote on February 11, 2013, to approve a payment in the amount of $115.00 issued to Alpha for Cole Boyer's attendance at a Borough Council meeting held on December 27, 2012. Respondent began abstaining from issues relating to compensated services provided by Cole Boyer /Alpha after the Pennsylvania Department of the Auditor General released a Liquid Fuels Fund audit report containing "related party" findings involving Respondent and the engineering services provided by Cole Boyer. As a result of the audit report released June 4, 2013, the Pennsylvania Department of Transportation required the Borough to reimburse the Liquid Fuels Account in the amount of $3,300.00. On December 9, 2013, Borough Council entered into another Municipal Services Agreement with Alpha dated November 7, 2013, for services to be provided through Boyer, 15 -010 Page 21 December 31, 2015. Cole J. Boyer, P.E. was identified as the designated representative on behalf of Alpha. The motion to approve the Alpha agreement passed by a 6 -0 vote of Council with Respondent abstaining. The parties have stipulated that Respondent's uses of authority of her public position as a Member of Borough Council resulting in the Borough contracting with Alpha, a business with which Respondent's husband is associated, included the following: (1) participating in Council discussions regarding the need for an engineer to handle Borough storm water management needs in 2010 as Cole Boyer was advising Council on the same; (2) participating in Council discussions determining a scope of work to be included as part of the RFP for engineering services; (3) identifying Alpha, her husband's employer, as one of the engineering firms from which the Borough would solicit a response to its RFP; (4) making the motion and voting during Council's January 10, 2011, meeting to accept the Engineering Services Request for Proposals draft; (5) reviewing and participating in Council discussions on the proposals submitted by Alpha, HRG and Pennoni during Council's February 7, 2011, and March 14, 2011, meetings; (6) participating in Council discussions during the May 9, 2011, meeting regarding engineering direction and storm water management goals for Alpha; (7) advising Council on June 13, 2011, that Cole Boyer was replacing Spease as the Borough Engineer; (8) making the motion and voting on August 8, 2011, to pay an estimated fee of $3,000.00 to Alpha for preparation of a seven year street maintenance and improvement plan; and (9) participating in Council action taken on September 12, 2011, August 13, 2012, and February 11, 2013, approving three payments issued to Alpha totaling $3,415.00. The parties have stipulated that Alpha realized a private pecuniary gain of $5,387.50 as a result of engineering services it provided to the Borough, and Cole Boyer received gross earnings of $1,754.00 as a result of engineering services he provided to the Borough through his employment with Alpha. 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 a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a) occurred. Boyer agrees to make payment in the amount of $1754.00 in settlement of this matter payable to Berrysburg Borough and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. Boyer agrees to not accept any reimbursement, compensation or other payment from Berrysburg Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. 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 Boyer, 15 -010 Page 22 authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 1 -2. In considering the Consent Agreement, we agree with the parties that a violation of Section 1103(a) of the Ethics Act occurred in relation to the allegation in this case. The parties have stipulated that Respondent's uses of authority of her public position as a Member of Borough Council resulting in the Borough contracting with Alpha, a business with which Respondent's husband is associated, included the following: (1) participating in Council discussions regarding the need for an engineer to handle Borough storm water management needs in 2010 as Cole Boyer was advising Council on the same; (2) participating in Council discussions determining a scope of work to be included as part of the RFP for engineering services; (3) identifying Alpha, her husband's employer, as one of the engineering firms from which the Borough would solicit a response to its RFP; (4) making the motion and voting during Council's January 10, 2011, meeting to accept the Engineering Services Request for Proposals draft; (5) reviewing and participating in Council discussions on the proposals submitted by Alpha, HRG and Pennoni during Council's February 7, 2011, and March 14, 2011, meetings; (6) participating in Council discussions during the May 9, 2011, meeting regarding engineering direction and storm water management goals for Alpha; (7) advising Council on June 13, 2011, that Cole Boyer was replacing Spease as the Borough Engineer; (8) making the motion and voting on August 8, 2011, to pay an estimated fee of $3,000.00 to Alpha for preparation of a seven year street maintenance and improvement plan; and (9) participating in Council action taken on September 12, 2011, August 13, 2012, and February 11, 2013, approving three payments issued to Alpha totaling $3,415.00. The parties have stipulated that Alpha realized a private pecuniary gain of $5,387.50 as a result of engineering services it provided to the Borough, and Cole Boyer received gross earnings of $1,754.00 as a result of engineering services he provided to the Borough through his employment with Alpha. We hold that a violation of Section 1103(a) of the Ethics Act occurred in relation to the allegation that Respondent, as a Borough Council Member, utilized the authority of her public position for the private pecuniary benefit of an immediate family member and /or a business with which an immediate family member is associated, namely Cole Boyerand /or Alpha, when she participated in discussions and actions of Borough Council, including but not limited to, motioning and /or voting to engage and /or otherwise compensate Alpha to render engineering services on behalf of the Borough, at a time when her husband and immediate family member, Cole Boyer, was an employee and the Alpha Engineer assigned to represent the Borough. As part of the Consent Agreement, Respondent has agreed to make payment in the amount of $1,754.00 payable to Berrysburg Borough and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Respondent has also agreed to not accept any reimbursement, compensation or other payment from the Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. We determine that the Consent Agreement submitted by the parties sets forth a proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Boyer, 15 -010 Page 23 Accordingly, per the Consent Agreement of the parties, Respondent Boyer is directed to make payment in the amount of $1,754.00 payablen o Berrysburg Borough and forwarded to this Commission by no later than the thirtieth (30th day after the mailing date of this adjudication and Order. Per the Consent Agreement of the parties, Respondent Boyer is further directed to not accept any reimbursement, compensation or other payment from the Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. As a Council Member of Berrysburg Borough ( "Borough ") from January 4, 2010, to January 31, 2015, Respondent Jody A. Boyer ( "Boyer ") 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. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to the allegation that Boyer, as a Borough Council Member, utilized the authority of her public position for the private pecuniary benefit of an immediate family member and /or a business with which an immediate family member is associated, namely Cole Boyer and /or Alpha Consulting Engineers, Inc. ( "Alpha "), when she participated in discussions and actions of Borough Council, including but not limited to, motioning and /or voting to engage and /or otherwise compensate Alpha to render engineering services on behalf of the Borough, at a time when her husband and immediate family member, Cole Boyer, was an employee and the Alpha Engineer assigned to represent the Borough. In Re: Jody A. Boyer, File Docket: 15 -010 Respondent Date Decided: 4/6/16 Date Mailed: 4/15/16 ORDER NO. 1690 A violation of Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), occurred in relation to the allegation that Jody A. Boyer ( "Boyer "), as a Council Member of Berrysburg Borough ( "Borough "), utilized the authority of her public position for the private pecuniary benefit of an immediate family member and /or a business with which an immediate family member is associated, namely Cole Boyer and /or Alpha Consulting Engineers, Inc. ( "Alpha "), when she participated in discussions and actions of Borough Council, including but not limited to, motioning and /or voting to engage and /or otherwise compensate Alpha to render engineering services on behalf of the Borough, at a time when her husband and immediate family member, Cole Boyer, was an employee and the Alpha Engineer assigned to represent the Borough. Per the Consent Agreement of the parties, Boyer is directed to make payment in the amount of $1,754.00 payable to Berrysburg Borough and forwarded to the Pennsylvania State Ethics Commission by no later than the thirtieth (30t ) day after the mailing date of this Order. Per the Consent Agreement of the parties, Boyer is further directed to not accept any reimbursement, compensation or other payment from the Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. 4. Compliance with paragraphs 2 and 3 of this Order will result in the closing of this case with no further action by this Commission. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Nicholas A. Colafella, Chair