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HomeMy WebLinkAbout1696 Wiltroutf q- :; } STATE ETHICS COMMISSION 309 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: Walter D. Wiltrout, Respondent File Docket: X -ref: Date Decided Date Mailed: 14 -005 Order No. 1696 10/19/16 10/27/16 Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick 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 sew., by the above -named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). 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 held. The record is complete. I. ALLEGATIONS: That Walter D. Wiltrout, a public official /public employee in his capacity as a Supervisor for Bullskin Township, Fayette County, violated Section 1103(a) of the State Ethics Act (Act 93 of 1998) when he utilized the authority of his office as a Township Supervisor to hire and/or engage the Township Solicitor to provide legal representation to himself (Wiltrout) in a matter before the State Ethics Commission; and when he voted to authonze payment from Township /public funds to pay invoices from the Solicitor in regard to the representation before the State Ethics Commission. 1��1►i�hC��1 A. Pleadings 1. Upon review of a complaint alleging that Walter D. Wiltrout violated provisions of the State Ethics Act (Act 93 of 1998), the Investigative Division of the State Ethics Commission initiated a preliminary inquiry on April 7, 2014. 2. On ,tune 5, 2014, a letter was forwarded to Walter D. Wiltrout by the Investigative Division of the State Ethics Commission, informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail no. 7010 1060 0000 3361 7027. b. The domestic return receipt bore the signature of Lynn Ann Wiltrout, with a delivery date of June 7, 2014. P.O. BOX 11470, HARRISBURG, PA 17108 -1470 • 717- 783 -1610 • 1- 800 - 932 -0936 • www.ethics.state,pa.us Wiltrout , 14 -005 a�2 3. The Investigative Complaint/Findings Report was mailed to the Respondent on December 2, 2014. 4. Walter Wiltrout has served as a Supervisor for Bullskin Township, Fayette County, from January 5, 2004, through the present. a. Wiltrout has served as the SecretarylTreasurer of the Township since January 6, 2014. b. Wiltrout served as the Chairman of the Township Board of Supervisors from January 5, 2004, to January 6, 2014. C. Wiltrout has been employed as a full -time Roadmaster for the Township during his entire tenure as a Supervisor. 5. Bullskin Township (hereafter also referred to as the "Township ") is a Second Class Township governed by a three (3) Member Board of Supervisors. a. The Township holds one (1) regularly scheduled legislative meeting per month on the last Wednesday ofeach month. 1. The Township does not hold regularly scheduled agenda /workshop meetings. b. The Township holds special meetings as necessary. 6. Bullskin Township Supervisors receive $2,500.00 gross annually, which is paid quarterly for services rendered in their elected Supervisor /public official capacity. a. The Supervisors need not be present at every meeting. to receive their Supervisor salary. 7. Voting at Township meetings occurs in group "aye /nay" fashion after a motion is made and properly seconded. a. Any abstentions or objections made during the vote are specifically noted in the official meeting minutes. b. Minutes of each meeting are approved for accuracy at the subsequent meeting of the Township. S. The Township Supervisors receive a meeting packet for review prior to each regularly scheduled legislative meeting. a. The meeting packets are prepared by the Township Clerk and are placed in each individual Supervisor's mailbox located in the Township office. 1. The meeting packets are prepared and available to the Supervisors no later than the day of the legislative meeting. 9. The meeting packet consists of the upcoming meeting agenda, a written copy of the prior month s meeting minutes, and a listing of all bills received by the Township since the last Township meeting, which have not yet been paid. a. Normal recurring bills (p_g_., electric, hydrant fees, payroll, etc.) are paid prior to the monthly Township meetings and are not listed on the register of bills presented for approval. Wiltrout, 14 -005 sage T The actual vote undertaken by the Supervisors at each legislative meeting to approve the bills includes after -the -fact approval of any payment checks issued prior to the date of the last Township meeting. b. The re ister of bills maintained by the Township in the actual Township minute books documents all bills approved for payment at each legislative meeting. C. The register of bills details the check date, the payee, a brief description of the payment, the check number, and the check amount. 10. The Township Clerk is responsible for drafting the Township checks to be issued. a. Checks issued from the Township General Fund are generated via computer. b. The majority of General Fund checks are signed by authorized Township signatories the night of the legislative meeting, after the vote to approve the payment of the bills. 1. General Fund checks are signed on the day after the meeting if they were not otherwise generated before the scheduled meeting. 2. Checks issued throughout the month for recurring bills are signed as needed to avoid late fees. 11. Signature authority over Township accounts is maintained by all three (3) Supervisors. a. Township- issued checks require the signatures of any two (2) of the three (3) Township Supervisors. b. Signatures on Township checks must be live signatures. 1. Facsimile stamps are not utilized by the Township. 12. Article XI, Section 1101 of the Second Class Township Code provides for the appointment of a Solicitor by the Board of Supervisors. a. Section 1101 also provides that the Board of Supervisors determines the compensation of the Solicitor. 13. The Township Board of Supervisors officially appoints or re- appoints a Township Solicitor at its annual re- organization meeting. a. The appointed Solicitor routinely attends all Township legislative meetings. 14. Since at least January 2, 1996, the Township Board of Supervisors has consistently approved a monthly retainer fee for legal services provided by the appointed Solicitor. a. The retainer fee covers professional services such as consultations, advice, attendance at meetings, telephone calls, etc., related to Township legal concerns. 15. The Township also makes payment to the appointed Solicitor for professional services performed beyond those covered by the established monthly retainer, on an as- needed basis. Wiltrout, 14 -005 aFr ee 4 a. The hourly rate covers additional professional services such as Township litigation, preparation of Resolutions, legal research, etc., otherwise not accounted for through the retainer fee. b. The approved hourly rate is not consistently documented in the Township re- organization meeting minutes. 16. Donald J. McCue is an attorney licensed to practice law within the Commonwealth of Pennsylvania. a. McCue is self-employed in his capacity as an attorney with Donald McCue Law Firm P.C. 1. McCue was previously a partner in the law firm of McCue & Husband. b. McCue's attorney's license number is 10020. G, McCue's attorney's license was issued on March 20, 1972. 1. McCue remains a Member of the Bar in good standing. 17. McCue has consistently served as the appointed Township Solicitor from January 3, 2005, through the present. a. McCue has received a set monthly retainer of $350.00 as the Township Solicitor since his initial appointment. 1. This amount was approved by the Board of Supervisors. b. McCue has received additional payment on a per hour basis for professional services performed beyond the scope of the monthly retainer fee. 1. McCue's monthly Solicitor billings do not indicate the hourly rate charged, or time expended on a specific matter. 18. McCue submits a monthly invoice to the Township seeking payment of his approved monthly retainer. a. At varying times, McCue may submit additional invoices to the Township requesting payment for professional services performed beyond those covered within the scope of his approved monthly retainer. b. McCue is issued one check from the Township General Fund Account representing payment for his monthly retainer as well as any additional professional services performed on behalf of the Township during the applicable billing period. 19. Any legal services provided by McCue to the Township are done with the knowledge and consent of the Board of Supervisors. a. McCue cannot initiate any legal services without Board approval. 20. On April 5, 2012, the Investigative Division of the State Ethics Commission received signed, sworn complaints alleging that Wiltrout, as well as Township Supervisors William Geary and Thomas Keefer, violated provisions of the State Ethics Act (Act 93 of 1998). Wiltrout, 14 -005 Page 5 a. Part of the allegations contained within the complaint(s) was that Wiltrout, along with the other Members of the Board of Supervisors, set a monthly vehicle allowance for Members of the Township Board of Supervisors and for themselves as Roadmasters /employees of the Township, which was in opposition to what was set by the Board of Auditors for the Township. b. Upon review of the complaint(s), the Investigative Division initiated a preliminary inquiry on April 12, 2012. 21. On June 6, 2012, a letter was forwarded to Walter Wiltrout by the Investigative Division of the State Ethics Commission, informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. This matter was docketed as Wiltrout: 12 -018. 22. McCue first asserted legal representation of Wiltrout in relation to the alleged violations of the Ethics Act docketed as Wiltrout: 12 -018, to the State Ethics Commission's Executive Director by correspondence from McCue dated June 15, 2012, nine (9) days after the Notice of Investigation was sent to Wiltrout. a. McCue identified that McCue & Husband Law Firm was the Solicitor for the Bullskin Township Supervisors. b. McCue acknowledged the receipt of letters dated June 6, 2012, that identified various allegations of wrongdoing in connection with action of Wiltrout as a Township Supervisor. C. McCue noted in the correspondence his office's desire to respond to the letters on behalf of the Bullskin Township Supervisors. 23. The Notice Letter referenced by McCue was not addressed to McCue and/or McCue's office as the Township Solicitor. a. The June 6, 2012, Notice of Investigation issued to Wiltrout by the Investigative Division of the State Ethics Commission was addressed to Wiltrout's personal residence. b. The Notice Letter was delivered and provided to McCue personally by Wiltrout. C. McCue would not have initiated correspondence to the State Ethics Commission on Wiltrout's behalf absent direction from Wiltrout as a Supervisor to respond to the State Ethics Commission's letter of June 6, 2012. 24. Wiltrout, together with the other two Township Supervisors, authorized McCue to legally represent the Township Supervisors collectively in response to the allegations set forth by the State Ethics Commission. (See, Answer of Respondent Walter D. Wiltrout to Investigative Complaint/Findings Report, Paragraphs 27, 27 b, 28a. a. McCue had not agreed to represent Wiltrout in a pro bono capacity. 25. At all times between at least June 15, 2012, and March 17, 2014, McCue provided legal representation for Wiltrout in all matters relating to allegations of wrongdoing levied against Wiltrout b the Investigative Division of the State Ethics Commission docketed as Wiltrout: 1 2018. Wiltrout, 14 -005 la ge 9- a. McCue's last representation of Wiltrout in the matter of Wiltrout: 12 -018, occurred via correspondence dated March 17, 2014, issued to McCue on Wiltrout's behalf, from the State Ethics Commission's Executive Director, Robert Caruso. 1. The March 17, 2014, correspondence from Executive Director Caruso acknowledged Wiltrout's full compliance with instructions set forth in State Ethics Commission Order No. 1625. b. McCue continued to serve as the appointed Solicitor for the Township while simultaneously representing Wiltrout in Wiltrout: 12 -018, from June 15, 2012, through March 17, 2014. 26. In addition to asserting legal representation of Wiltrout and the remaining Township Supervisors as Respondents to Ethics Act allegations filed against them, McCue provided legal representation for two (2) Township employees and one (1) former Township public official during the course of the investigation(s). a. McCue represented and participated in interviews conducted of then - Township Clerk Jeffrey Wadsworth, Township Road Crew employee Larry Rhodes, and former Township Auditor Norma Brown. b. McCue charged fees to the Township for his representation of Wadsworth, Rhodes, and Brown in his capacity as the Township Solicitor. 27. Bullskin Township maintains its General Fund Account with The Scottsdale Bank & Trust Company. a. The account number associated with the Township's account is [account number redacted]. 28. McCue's billings for July 20, 2012, April 19, 2013, and August 5, 2013, were documented on Township bill lists presented to Wiltrout and the remaining Township Supervisors for approval at the regularly scheduled legislative meetings of the Township Board of Supervisors. 29. The following chart confirms payments made by the Township to McCue, which included McCue's legal representation of Wiltrout in the matter of Wiltrout: 12 -018. Meeting Supervisors Township Check Bill List Payee Date Present GF Check Amount* Description No. 07/25/2012 William Geary 15246 $2,345.00 Retainer & McCue & Husband Scott Keefer Extra Law Firm 05/29/2013 William Geary 15865 $7,395.00 Extra 1 McCue & Husband Scott Keefer Retainer Law Firm 08/28/2013 William Geary 16099 $4,407.60 Retainer McCue & Husband Walter Wiltrout Extra Law Firm Scott Keefer Total $14,147.60 *Note: Charges for monthly retainer and/or additional services above and beyond State Ethics Commission investigation are included in check amount. Wiltrout, 14 -005 Page a. The billings submitted by McCue to the Township for payment included legal services provided to Wiltrout and the other Supervisors In relation to the Ethics Commission investigations docketed as: Wiltrout: 12 -018; Geary: 12- 017; Keefer: 12 -019. b. Wiltrout's Answer to the Investigative Complaint/Findings Report states: "The chart confirms that the Townshipp Supervisors approved Attorney McCue's legal representation of Messrs. Wiltrout, Keefer and Geary for each of the Invoices submitted as part of collective representation of the Township Citizens and the Township Supervisors and Roadmasters in connection with the State Ethics Commission Investigation." (Answer of Respondent Walter D. Wiltrout to Investigative Complaint/Findings Report, Paragraph 32. 30. Wiltrout voted affirmatively to appprove one (1) of three (3) bill lists which included payment to McCue for billings to the Township for legal services rendered by McCue on Wiltrout's behalf in the matter of Wiltrout: 12 -018 as documented below: Meeting Wiltrout's Final Check Check Check Payee Signatories Date Action 1 Vote No. Date Amount* Vote 07/25/12 Absent 2 -0 15246 07/25/12 $2,345.00 McCue & Geary 1 Husband Law Wiltrout Firm 05/29/13 Absent 2 -0 15865 05/29/13 $7,395.00 McCue & Geary ! Husband Law Wiltrout Firm 08/28/13 Voted to 3 -0 16099 08/28/13 $4,407.60 McCue & Geary 1 Approve Husband Law Wiltrout Firm *Note: Charges for monthly retainer and/or additional services above and beyond State Ethics Commission investigation are included in check amount. a. Wiltrout's Answer to the Investigative Complaint/Findings Report states: "Admitted that Mr. Wiltrout voted to approve payment of the bills for the benefit of all three (3) Township Supervisors / Roadmasters as well as Citizens of Bullskin Township for legal representation in the collective investigation." (Answer of Respondent Walter D. Wiltrout to Investigative Complaint/Fmdings Report, Paragraph 33. 31. McCue1McCue & Husband maintains, or had maintained in 2012 and 2013, an account at PNC Bank under Account Number [account number redacted]. a. Check numbers 15246 and 15865 were endorsed with a "For Deposit Only McCue & Husband Law Firm" stamp. 1. Check numbers 15246 and 15865 posted as debits to the Township's General Fund Account on July 30, 2012, and .tune 17, 2013, respectively. b. Check number 16099 was deposited to the McCue & Husband general operating account. 1. Check number 16099, dated 8128113, posted as a debit to the Township's General Fund Account on September 9, 2013. Wi[trout, 14-005 a�S 32. McCue's billings dated July 20, 2012, April 19, 2013, and August 5, 2013, detailed specific professional services rendered, including services performed by McCue for Wiltrout, Geary, and Keefer as Township Supervisors and the fees associated with those services. i See, Answer of Respondent Walter D. Wiltrout to Investi ative Complaint/ Findings Report, at Paragraph 35.) a. The July 20, 2012, billing presented to the Township detailed a total of $1,995.00 due for services rendered. Of the $1,995.00 in fees submitted to the Township for payment, approximately $495.00 was documented as pertaining to: "Investigation by State Ethics Commission." * [sic] [Cf., Fact Finding 46 a.] b. The April 19, 2013, billing presented to the Township detailed a total of $5,830 00 due for services rendered. All of the $5,830.00 in fees submitted to the Township for payment were related to: "State Ethics Commission Investigation." aa. The fees submitted to the Township included $930.00 in fees related to McCue's service as the Township Solicitor representing Township witnesses in interviews conducted during the investigation. C. The August 5, 2013, billing detailed a total of $2,455.60 due for services rendered and mailing reimbursement. 1. All of the $2,455.60 in fees submitted to the Township for payment were related to McCue's collective representation of Wiltrout, Geary, and Keefer in connection with the State Ethics Commission investigation. (See, Answer of Respondent Walter D. Wiltrout to Investigative C6-m- omplaint/Findings Report, Paragraph 35 c 1, 2.) 33. McCue provided representation to Wiltrout, Keefer, and Geary with regard to the State Ethics Commission investigation as follows. a. McCue represented Wiltrout in relation to the Commission investigation which culminated with State Ethics Commission Order No. 1625, finding Wiltrout in violation of Section 1103(a) of the Ethics Act. b. McCue represented Keefer in relation to the Commission investigation which culminated with State Ethics Commission Order No. 1626, finding Keefer in violation of Section 1103(a) of the Ethics Act. C. McCue represented Geary in relation to the Commission investigation which culminated with State Ethics Commission Order No. 1624, finding Geary in violation of Section 1103(a) of the Ethics Act. 34. McCue acknowledged his representation of Wiltrout, Geary,.and Keefer at taxpayer expense in an article titled, "Bullskin solicitor defends supervisors," published March 19, 2014, on TribLive. a. The article documented a statement by McCue that Wiltrout, Geary, and Keefer agreed to settle the case before the Pennsylvania State Ethics Wiltrout, 14 -005 Page e 9� Commission rather than burden taxpayers with more legal fees to fight the case. 1. McCue was specifically quoted as stating the following: "I told (supervisors) I felt we could win it in Commonwealth Court, but they did not want to spend any more taxpayers' money on legal fees." 35. The amount charged by McCue for representation of Township personnel other than the Township Supervisors totaled $930.00, and the amount charged for representation of Wiltrout, Geary, and Keefer in relation to the Ethics Act investigations totaled at least $7,830.00. 36. By way of correspondence dated September 24, 2014, Wiltrout was provided the opportunity to articipate in an interview with representatives of the Investigative Division regarding the allegation most recently levied against him. a. The correspondence was sent via Certified Mail and was signed for by Adam S. Wiltrout at Wiltrout's residential address on September 25, 2014. 1. The correspondence identified the Investigative Division's interest in interviewing Wiltrout in relation to the current allegation. 2. The correspondence identified November 7, 2014, as the date by which any such interview was required to be completed. 3. The correspondence identified Wiltrout's right to be represented by legal counsel at any such interview. 4. The correspondence requested that Wiltrout forward the document to his legal counsel if any such counsel had already been obtained. aa. No legal representative had formally entered histher appearance with the Commission on Wiltrout's behalf at that time. 37. A response on Wiltrout's behalf dated October 6, 2014, was received at the Pittsburgh Regional Office of the State Ethics Commission on October 8, 2014. a. The correspondence was computer generated on Bullskin Township Board of Supervisors letterhead. b. The correspondence identified an opinion that the allegations against Wiltrout were without merit. C. The correspondence requested that the allegations be dismissed. d. The correspondence documented Wiltrout's declination to be interviewed. B. Testimony 38. Brian D. Jacisin is employed as the Deputy Executive Director and Director of Investigations for the State Ethics Commission. a. ID 3 consists of a Consent Agreement dated October 15, 2013, between Wiltrout and the Investigative Division of the State Ethics Commission in re: Walter Wiltrout, Docket No. 12 -018. Wiltrout, 14 -005 p ge-n 1. The Consent Agreement at ID 3 was a formal agreement between the Investigative Division and Wiltrout for resolution of the rior State Ethics Commission case against Wiltrout under Docket No. 12 -018. b. ID 6 consists of Order No. 1625, issued February 12, 2014, by the State Ethics Commission, which approved the Consent Agreement between Wiltrout and the Investigative Division of the State Ethics Commission under Docket No. 12 -018. C. Wiltrout complied with Order No. 1625, which directed him, inter alia, to make payment in the amount of $3,000.00 to the Township per the Consent Agreement of the parties. d. On March 28, 2014, the Investigative Division of the State Ethics Commission received a. signed, sworn complaint alleging that Walter D. Wiltrout had violated the Ethics Act. (ID 10). e. ID 22 consists of a notice letter dated August 19, 2014, that was forwarded to Wiltrout, advising him of the general status of an investigation commenced by the Investigative Division of the State Ethics Commission into allegations that Wiltrout had violated the Ethics Act. f. 1D 25 consists of the Investigative Complaint/Findings Report filed against Wiltrout on December 2, 20'i4, under Docket No. 14-005. 39. Jeffrey Hann ( "Hann ") served as a Township Auditor from 2010 to 2015. a. Hann testified that he was concerned as to whether the Township Supervisors had used Township funds to pay McCue for representing them in the prior proceedings before the State Ethics Commission. b. Hann testified that he filed a Right -to-Know request with the Township because of his concerns and that among the Township records, he saw three invoices from the McCue & Husband Law Firm which were directed to the Township Supervisors. C. ID 27, ID 28, and ID 29 consist of invoices from the McCue & Husband Law Firm dated April 19, 2013, July 20, 2012, and August 5, 2013, respectively. d. Each of the invoices identified as ID 27, ID 28, and ID 29 was directed to "Bullskin Township Supervisors" and not to any individual Township Supervisor. 40. Connie L. McKlveen has been employed as an office clerk for the Township Supervisors since January 2, 2013. a. ID 30, ID 31, and ID 32 consist of minutes of regular monthly meetings of the Township Board of Supervisors on July 25,20U, May 29, 2013, and August 28, 2013, respectively. b. ID 33, ID 35, and ID 37 consist of Township check registers indicating Township checks that were issued for the following respective periods: (1) July 1, 20'12, through July 31, 2012; (2) May 1, 2013, through May 31, 2013; and (3) August 1, 2013, through August 28, 2013. C. ID 34, 1D 36, and ID 38 consist of copies of three checks dated July 25, 2012, May 29, 2013, and August 28, 2013, respectively, that were drawn on the Township General Fund Account and issued to McCue & Husband Law Wiltrout, 14 -005 ap1 Firm. 41. Respondent Walter D. Wiltrout ( "Wiltrout ") began serving as a Township Supervisor on January 5, 2004. Wiltrout testified that McCue —as the Township Solicitor — represented Wiltrout, Geary, and Keefer—in their capacities as Township Supervisors — and the people of the Township throughout the prior State Ethics Commission proceedings which began in 2012. b. Wiltrout testified that he entered into a Consent Agreement with the Investigative Division of the State Ethics Commission in order to save the Township money. C. Documents 42. ID 3 consists of a Consent Agreement dated October 15, 2013, between Wiltrout and the Investigative Division of the State Ethics Commission in re: Walter Wiltrout, Docket No. 12 -018. The Consent Agreement was signed by: (1) Walter Wiltrout, as Respondent; (2) Donald J. McCue, Esquire, as Counsel for Respondent; and 3) Brian D. Jacisin, on behalf of Robert P. Caruso, Executive Director of the Ethics Commission. The Consent Agreement included, inter alia, a recommendation that the State Ethics Commission find: "That a violation of Section 1103(x) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a) occurred in relation to Wiltrout's use of authority of his office as a Member of the Board of Supervisors to set a monthly vehicle allowance for Members of the Board of Supervisors, in their capacity as employees of the Township, which included himself as Roadmaster. ConsentA reement, at paragraph 3(a), ID 3, page 2. 43. ID 6 consists of Order No. 1625, issued February 12, 2014, by the State Ethics Commission, which approved the Consent Agreement between Wiltrout and the Investigative Division of the State Ethics Commission in re: Walter Wiltrout, Docket No. 12 -018. a. Based upon the particular Stipulated Findings and Consent Agreement of the parties, the State Ethics Commission held that Wiltrout violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation to his use of authority of his office as a Member of the Township Board of Supervisors to set a monthly vehicle allowance for Members of the Township Board of Supervisors in their capacity as employees of the Township, which included him as roadmaster. b. Per the Consent Agreement of the parties, Wiltrout was directed, inter alia, to make payment in the amount of $3,000.00, payable to Bullskin Winship. 44. 1D 25 consists of the Investigative Complaint/Findings Report filed against Wiltrout on December 2, 2014, under Docket No. 14 -005. 45. ID 27 consists of an invoice dated April 19, 2013, in the amount of $5,830.00, issued by McCue & Husband Law Firm to the Bullskin Township Supervisors for professional services rendered between July 17, 2012, and March 26, 2013, with regard to "State Ethics Commission Investigation." Wiltrout, 14005 ague 2. 46. ID 28 consists of an invoice dated July 20, 2012, in the amount of $1,995.00, issued by McCue & Husband Law Firm to the Bullskin Township Supervisors for professional services rendered in various matters between April 2012 and June 2012. a. The invoice includes a fee in the amount of $475.00 for professional services rendered pertaining to "Investigation by State Ethics Commission." 47. ID 29 consists of an invoice dated August 5, 2013, in the amount of $2,455.60, issued by McCue & Husband Law Firm to the Bullskin Township Supervisors for: (1) professional services rendered between April 9, 2013, and June 28, 2013, with regard to "State Ethics Commission Investigation "; and (2) reimbursement of mailing costs in the amount of $5.60 related to such professional services. 48. ID 34 consists of a copy of check number 15246, drawn on the Township General Fund Account in the amount of $2,345.00. a. Check number 15246, dated July 25, 2012, is payable to McCue & Husband Law Firm and bears the signatures of William H. Geary and Walter D. Wiltrout. 49, ID 36 consists of a copy of check number 15865, drawn on the Township General Fund Account in the amount of $7,395.00. a. Check number 15865, dated May 29, 2013, is payable to McCue & Husband Law Firm and bears the signatures of William H. Geary and Walter D. Wiltrout. 50. ID 38 consists of a copy of check number 16099, drawn on the Township General Fund Account in the amount of $4,407.60. a. Check number 16099, dated August 28, 2013, is payable to McCue & Husband Law Firm and bears the signatures of William H. Geary and Walter D. Wiltrout. III. DISCUSSION: As a Supervisor for Bullskin Township ( "Township "), Fayette County, from January 5, 2004, through the present, Respondent Walter D. Wiltrout, also referred to hereinafter as Respondent, Respondent Wiltrout, and Wiltrout, has been a public official subJJict to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et se The allegations as set forth in the Investigative Complaint/Findings Report are that Wiltrout violated Section 1103(a) of the Ethics Act when he utilized the authority of his office as a Township Supervisor to hire and/or engage the Township Solicitor to provide legal representation to himself (Wiltrout) in a matter before the State Ethics Commission, and when he voted to authorize payment from Township /public funds to pay invoices from the Township Solicitor in regard to the representation before the State Ethics Commission. 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: § 9103. Restricted activities (a) Conflict of interest.—No public official or public employee shall engage in conduct that constitutes a conflict of interest. Wiltrout, 14 -005 aP ge-D 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 officelemployment 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. We shall now summarize the relevant facts. The Township is governed by a three - Member Board of Supervisors ( "Board "). Wiltrout has served as a Township Supervisor from January 5, 2004, through the present. Wiltrout has been employed as a full -time roadmaster for the Township during his entire tenure as a Supervisor. All three Supervisors maintain signature authority over Township accounts. Township - issued checks require the signatures of any two of the Supervisors. Pursuant to the Second Class Township Code, the Board appoints a Township Solicitor at the Board's annual reorganization meeting. Since at least January 2, 1996, the Board has consistently approved a monthly retainer fee for legal services provided by the Township Solicitor. The retainer fee covers professional services such as consultations, advice, attendance at meetings, and telephone calls related to Township legal concerns. The Township also makes payment to the Township Solicitor at an hourly rate for professional services performed beyond those covered by the approved monthly retainer fee. The hourly rate covers additional professional services such as Township litigation, preparation of resolutions, and legal research. Donald J. McCue { "McCue ")) is an attorney licensed to practice law within the Commonwealth of Pennsylvania. NfcCue is currently self - employed with his own law firm. McCue was previously a partner in McCue & Husband Law Firm ( "McCue & Husband "). McCue has served as the appointed Township Solicitor from January 3, 2005, through the resent. Any legal services that McCue provides to the Township are performed with the knowledge and consent of the Board, and he cannot initiate any legal services without approval by the Board. Wiltrout 14 -005 a1 Since his initial appointment as the Township Solicitor, McCue has received a set monthly retainer fee in the amount of $350.00 as approved by the Board. McCue receives additional payment at an hourly rate for professional services performed beyond those covered by the monthly retainer fee. McCue submits a monthly invoice to the Township seeking payment of his monthly retainer fee, and he may submit additional invoices to the Township requesting payment for professional services not covered by the monthly retainer fee. McCue is issued one check from the Township General Fund Account that represents payment for his monthly retainer fee and any additional professional services performed on behalf of the Township during the applicable billing period. On April 5, 2012, the Investigative Division received signed, sworn complaints alleging that Wiltrout and the other two Township Supervisors, William Geary ( "Geary") and Thomas Keefer ( "Keefer "), violated the Ethics Act. The allegations, hereinafter referred to as "the 2012 Allegations," included, in pertinent part, that the Supervisors set a monthly vehicle allowance for the Supervisors and for themselves as road masters/em ployees of the Township which was in opposition to what was set by the Township Board of Auditors, specifically, reimbursement at the standard IRS rate for documented mileage. On April 12, 2012, the Investigative Division initiated a preliminary inquiry as to the complaints against Wiltrout, Geary, and Keefer. The Investigative Division docketed the matter involving the complaint against Wiltrout as Wiltrout: 12-018, hereinafter referred to as "Case 12018." On June 6, 2012, the Investigative Division forwarded a letter ("Notice Letter ") to Wiltrout, informing him that a complaint against him was received and that a full investigation was being commenced. The Notice Letter was addressed to Wiltrout's personal residence and not to McCue or McCue's office as the Township Solicitor. Wiltrout personally delivered the. Notice Letter to McCue. Wiltrout, Geary, and Keefer authorized McCue to represent the Supervisors as a group in response to the 2012 Allegations. McCue had not agreed to provide representation in a pro Bono capacity. McCue first asserted legal representation of Wiltrout in relation to Case 12 -018 by a letter dated June 15, 2012, to the Executive Director of the State Ethics Commission. McCue identified McCue & Husband as the Township Solicitor, and he acknowledged the receipt of letters dated June 6, 2012, that identified various allegations of wrongdoing in connection with Wiltrout's action as a Supervisor. McCue noted his office's desire to respond to the letters on behalf of the Supervisors. McCue would not have initiated correspondence to the State Ethics Commission on Wiltrout's behalf absent direction from Wiltrout as a Supervisor to respond to the Notice Letter. We take administrative notice that by Interlocutory Order issued on June 10, 2013, the Chair of the State Ethics Commission granted a motion for consolidation of the cases involving Wiltrout, Geary, and Keefer in relation to the 2012 Allegations. We further take administrative notice that by Interlocutory Order issued October 4, 2013, the Hearing Officer for the consolidated cases denied a "Motion to Disqualify Counsel for Respondents' Motion to Disqualify Counsel ") filed by the Investigative Division. The Motion to Disqualify 'ounsel asserted inter alia, that there was a potential conflict of interest under Rule 1.7 of the Rules of Prod no al Conduct resulting from McCue's representation of all Respondents in the consolidated cases as well as the Township and several Township representatives /employees. In denying the Motion to Disqualify Counsel, the Hearing Officer concluded, in pertinent part, that the State Ethics Commission lacks jurisdiction to determine violations of the Rules of Professional Conduct and that the interests of McCue`s clients under the Rules of Professional Conduct do not fall within the statutory jurisdiction of the State Ethics Commission. On February 12, 2014, this Commission issued Order No. 1625, which approved a Consent Agreement between Wiltrout and the Investigative Division in Case 12 -018. As part of the Consent Agreement, Wiltrout admitted to a violation of Section 1103(a) of the Wiltrout 14 -005 a�ge�g Ethics. Act. We held that based upon the particular Stipulated Findings and Consent Agreement of the parties, Wiltrout violated Section 11 103(aBB) of the Ethics Act in relation to his use of authority of his office as a Member of the oard to set a monthly vehicle allowance for Members of the Board in their capacity as employees of the Township, which included him as roadmaster. Per the Consent Agreement of the parties, Wiltrout was directed, inter alia, to make payment in the amount of $3,000.00, payable to the Township. At all times between at least June 15, 2012, and March 17, 2014, McCue provided legal representation for Wiltrout in all matters relating to Case 12 -018. McCue continued to serve as the appointed Township Solicitor while simultaneously representing Wiltrout in Case 12 -018. McCue last represented Wiltrout in Case 12 -018 in relation to correspondence dated March 17, 2014, issued to McCue on Wiltrout's behalf b y the Executive Director of the State Ethics Commission. The aforesaid correspondence acknowledged Wiltrout's full compliance with the directives set forth in Order No. 1625. In addition to asserting legal representation of Wiltrout, Geary, and Keefer as Respondents to the 2012 Allegations, McCue provided legal representation for two Township employees and one former Township public official during the course of the investigations into the 2012 Allegations. Specifically, McCue provided legal representation for and participated in interviews conducted of then - Township Clerk Jeffrey Wadsworth ( "Wadsworth "), Township Road Crew employee Larry Rhodes ( "Rhodes "), and former Township Auditor Norma Brown ( "Brown "). McCue charged fees to the Township for providing legal representation for Wadsworth, Rhodes, and Brown as the Township Solicitor. McCue & Husband invoices dated July 20, 2012, April 19, 2013, and August 5, 2013, that were submitted to the Township included fees for professional services rendered by McCue to Wiltrout, Geary, and Keefer in relation to the investigations into the 2012 Allegations. Each of the aforesaid invoices was directed to the "Bullskin Township Supervisors" and not to any individual Supervisor. The July 20, 20'12, invoice included $475.00 in fees due for services pertaining to the investigations. The April 19, 2013, invoice detailed a total of $5,830.00 m fees due for services pertaining to the investigations, including $930.00 in fees related to McCue's provision of legal representation for Wadsworth, Rhodes, and Brown. The August 5, 2013, invoice detailed a total of $2,455.60 in fees due for services and mailing reimbursement pertaining to the investigations. The three aforesaid invoices charged the Township fees totaling $8,760.60 for services pertaining to the investigations. After a deduction for the $930.00 in fees related to McCue's provision of legal representation for Wadsworth, Rhodes, and Brown, the Township was charged at least $7,830.00 in fees for McCue's representation of Wiltrout, Geary, and Keefer in relation to the investigations into the 2012 Allegations. The McCue & Husband invoices dated July 20, 2012, April 19, 20'13, and August 5, 2013, were included on bill lists that were presented to the Board for approval at regularly scheduled legislative meetings. On August 28, 2013, Wiltrout participated in a vote by the Board to approve a bill list which included payment to McCue & Husband for the legal services provided to Wiltrout, Geary, and Keefer in relation to the investigations into the 2012 Allegations as well as payments for unrelated legal services and the monthly retainer fee. Wiltrout signed, as an authorized Township signatory, all three of the Township checks issued to McCue & Husband that were associated with payment of the fees charged for McCue's representation of Wiltrout, Geary, and Keefer in relation to the 2012 Allegations. McCue acknowledged his representation of Wiltrout, Geary, and Keefer at taxpayer expense in an article titled, "Bullskin solicitor defends supervisors," published March 19, 2014, on TribLive. The article documented a statement by McCue that Wiltrout, Geary, and Keefer agreed to settle the case before the State Ethics Commission rather than burden taxpayers with more legal fees to fight the case. McCue was specifically quoted as Wiltrout, 14 -005 a�6 stating that "I told (supervisors) I felt we could win it in Commonwealth Court, but they did not want to spend any more taxpayers' money on legal fees." Having summarized the above relevant facts, we note that the parties have filed closing statements /briefs in this matter. The Investigative Division makes the following arguments in its Closing Statement and Brief: Wiltrout used the authority of his public office when he voted to approve a bill list that included an invoice from the Township Solicitor for providing legal representation to him in relation to the 2012 Allegations and when he signed Township checks issued to the Township Solicitor as payment for such representation; the expenses related to such representation were personal and not the responsibility of the Township; Wiltrout realized a nvate pecuniary benefit in that he did not have to personally pay the Township Solicitor for he legal representation that was pprovided fio him; m various cases, this Commission has found a violation of Section 1103(a) of the Ethics Act where a public official used the authority of his or her office to pay for private legal expenses; and this Commission should order Wiltrout to pay restitution in the amount of $2,610.00, representing one -third of the $7,830.00 in Township funds paid to the Township Solicitor for providing legal representation to Wiltrout, Geary, and Keefer in relation to the investigations into the 2012 Allegations, plus a treble penalty in the amount of $7,830.00. Wiltrout makes the following arguments in his brief: the Supervisors properly utilized the Township Solicitor to defend them in connection with the 2012 Allegations because the Supervisors decisions and actions in setting a monthly vehicle allowance for themselves as Township roadmasters were supported by case law, the Second Class Township Code, and opinions from the Township Solicitor and the Pennsylvania State Association of Township Supervisors; the Supervisors determined that it was in the best interests of the Township citizens for the Supervisors to accept a negotiated settlement with the Investigative Division with respect to the 2012 Allegations rather than continue to ex end taxpayer money in connection with further proceedings before the State Ethics Commission and an appeal to the Commonwealth Court of Pennsylvania; there is no evidence that the Supervisors were "consciously aware of a private pecuniary benefit" for themselves (see, Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011)), and to the contrary, their actions were taken tor the benefit of the Township citizens and were in strict compliance with Pennsylvania law; there is no evidence of any financial compensation flowing directly to the Supervisors as a result of their decisions and actions; and this matter should be dismissed with prejudice, with costs, fees, and expenses assessed against the State Ethics Commission. Having summarized the relevant facts and arguments of the parties, we preliminarily note that at the hearing in this matter, Wiltrout made a Motion to Dismiss based on the doctrines of res judicata and collateral estoppel. Specifically, Wiltrout asserted that in the Interlocutory Order issued October 4, 2013, denying the Motion to Disqualify Counsel filed in the prior proceedings involving the 2012 Allegations, the Hearing Officer concluded that it was not a conflict of interest for Wiltrout, Geary, and Keefer to be represented by McCue, as the Township Solicitor, in those proceedings. Contrary to Wiltrout's assertion, in denying the Motion to Disqualify Counsel, the Hearing Officer did not address, much less decide, the issue of whether it would be a conflict of interest under Section 11 Ma) of the Ethics Act for Wiltrout, Geary, and Keefer to be represented by McCue, as the Township Solicitor, at Township expense, in the prior proceedings. Rather, the Hearing Officer concluded, in pertinent part, that this Commission does not have the statutory jurisdiction to address conflicts of interest under the Rules of Professional Conduct applicable to McCue's conduct as an attorney. Accordingly, we de ny Wiltrout s Motion to Dismiss. We must now determine whether the actions of Wiltrout violated Section 1103(a) of the Ethics Act. As we apply the facts to the allegations, due process requires that we not depart from the allegations. Pennsy v. Department of State, 594 A.2d 845 (Pa. Cmwlth. 1991). A violation of the Ethics Act must be based upon clear and convincing proof. 65 Wiltrout, 14 -005 age T7 Pa.C.S. § 1108(g ). Clear and convincing proof is "so `clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue. "' In Re: Charles E.D.M., 550 Pa. 595, 601, 708 A.2d 88, 91 (1998) {Citation omitted }. Wiltrout's prior case involving the 2012 Allegations included, in pertinent part, the allegation that he and the other two Supervisors set a monthly vehicle allowance for the Supervisors and for themselves as road masterslemployees of the Township which was in 0pposit�on to what was set by the Township Board of Auditors, specifically, reimbursement at the standard IRS rate for documented mileage. Wiltrout chose to enter into a Consent Agreement with the Investigative Division, through which Wiltrout: (1) admitted that he violated Section 1103(a) of the Ethics Act in relation to his use of authority of his office as a Member of the Township Board of Supervisors to set a monthly vehicle allowance for Members of the Township Board of Supervisors in their capacity as employees of the Township, which included him as roadmaster; and (2} agreed to make payment in the amount of $3,000.00 to the Township. This Commission approved the Consent Agreement of the parties in Order No. 1625. With regard to the current allegations, Wiltrout used the authority of his office as a Supervisor when he, along with Geary and Keefer, authorized McCue to represent the Supervisors as a group in response to the 2012 Allegations. Wi[trout further used the authority of his office as a Supervisor: (1) when, on August 28, 2013, he participated in a vote by the Board to approve a bill list which included payment to McCue & Husband for the legal services provided to Wiltrout, Geary, and Keefer in relation to the investigations into the 2012 Allegations; and (2) when he signed, as an authorized Township signatory, all three of the Township checks issued to McCue & Husband that were associated with McCue's representation of Wiltrout, Geary, and Keefer as to the 2012 Allegations. The Township paid a total amount of at least $7,830.00 for McCue's representation of Wiltrout, Geary, and Keefer in relation to the investigations into the 2012 Allegations. We reject Wiltrout's argument that he properly utilized the Township Solicitor to represent him at Township expense with regard to the 2012 Allegations. By entering into the Consent Agreement, Wiltrout admitted that as a result of using the authority of his office as a Supervisor, he received compensation that he was not entitled to receive. As a consequence of Wiltrout's entering into the Consent Agreement, the necessary conclusion is that the Township Solicitor's representation of Wiltrout was personal in nature. Such representation did not pertain to defending Wiltrout's conduct in carrying out his official duties as a Supervisor but rather to defending Wiltrout's conduct that was an admitted violation of the Ethics Act. Therefore, Wiltrout was not entitled to a publicly funded defense against the 2012 Allegations. Cf., R.H. v. State Ethics Commission, 673 A.2d 1004 (Pa. Cmwlth. 1996 ); Roofner's A ea , 81 Pa. Super. 482 (1923). We hold that Wiltrout violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a ), when he utilized the authority of his office as a Township Supervisor to hire and/or engage the Township Solicitor to provide legal representation to himself in a matter before the State Ethics Commission in which he admitted to a violation of the Ethics Act, and when he voted to authorize payment from Township /public funds to pa an invoice from the Township Solicitor in regard to such representation before the State Ethics Commission. Cf., Huhn, Order 1054; Cz z k, Order 1053; Pekarski, Order 1052; Servis, Order 1051. Section 1107(13) of the Ethics Act empowers this Commission to order restitution in instances where a public official /public employee has obtained a financial gain in violation of the Ethics Act. We determine that restitution is warranted in the amount of $2,610.00, representing one -third of the total amount of $7,830.00 in Township funds paid to the Township Solicitor for providing legal services to Wiltrout, Geary, and Keefer as a group in relation to the a {�$ 14005 9 investigations into the 2012 Allegations. Cf., Haaf, Order 914; Sanders, Order 786; Borland, Order 785. We shall not impose a trebFe_penalty. Accordingly, Wiltrout is ordered to make payment of restitution in the amount of $2,610.00 payOle to Bullskin Township and forwarded to this Commission by no later than the thirtieth (30 ) day after the mailing date of this adjudication and Order. Wiltrout is further directed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the aforesaid restitution. Non- compliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. As a Supervisor for Bullskin Township ( "Township "), Fayette County, from January 5, 2004, through the present, Respondent Walter D. Wiltrout ( "Wiltrout ") has been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 110'1 et se q. Wiltrout violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a ), when he utilized the authority of his office as a Township Supervisor to hire and/or engage the Township Solicitor to provide legal representation to himself in a matter before the State Ethics Commission in which he admitted to a violation of the Ethics Act, and when he voted to authorize payment from Township /public funds to pay an invoice from the Township Solicitor in regard to such representation before the State Ethics Commission. In Re: Walter D. Wiltrout, File Docket: 14 -005 Respondent : Date Decided: 10/19/16 Date Mailed: 10/27/16 ORDER NO. 1696 1. Walter D. Wiltrout ("Wiltrout"), as a Supervisor for Bullskin Township ( "Township "), Fayette County, violated Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. 1103(x), when he utilized the authority of his office as a Township Supervisor to ire and/or engage the Township Solicitor to . provide legal representation to himself in a matter before the State Ethics Commission in which he admitted to a violation of the Ethics Act, and when he voted to authorize payment from Township /public funds to pay an invoice from the Township Solicitor in regard to such representation before the State Ethics Commission. 2. Wiltrout is ordered to make payment of restitution in the amount of $2,610.00 payable to Bullskin Township and forwarded to the Pennsylvania State Ethics Commission by no later than the thirtieth (30 ) day after the mailing date of this Order. 3. Wiltrout is directed to not accept any reimbursement, compensation or other payment from. the Township representing a full or partial reimbursement of the aforesaid restitution. 4. Non-compliance with paragraph 2 or 3 of this Order will result in the institution of an order enforcement action. BY THE COMMISSION, da� hi i ir