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HomeMy WebLinkAbout1697 GearySTATE ETHICS COMMISSION 309 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: William H. Geary, File Docket: Respondent X -ref: Date Decided Date Mailed: 14 -006 Order No. 1697 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 violations) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seg -, 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. 1. ALLEGATIONS: That William H. Geary, 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 en age the Township Solicitor to provide legal representation to himself (Geary) in a matter before the State Ethics Commission; and when he voted to authorize payment from Township /public funds to pay invoices from the Solicitor in regard to the representation before the State Ethics Commission. 11. FINDINGS: A. Pleadings 1. Upon review of a complaint alleging that William H. Geary 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 June 5, 2014, a letter was forwarded to William H. Geary 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 7010. b. The domestic return receipt bore the signature of William H. Geary. P.O. BOX 1 1 470, HARRISBURG, PA 17108-1470 • 717- 783 -1610 • 1- 800 -932 -0936 • www.ethics.state.pa.us GGeaa 14 -006 Page 2 3, The Investigative Complaint/Findings Report was mailed to the Respondent on December 2, 2014. 4. William Geary served as a Supervisor for Bullskin Township, Fayette County, from January 2, 1996, through December 31, 2013. a. Geary served as the Secretary/Treasurer of the Township, as well as the Vice - Chairman of the Board of Supervisors, at various times during his tenure. b. Geary was 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 of each month. 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 held each quarter 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 ackets 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 (e A., electric, hydrant fees, payroll, etc.) are paid prior to the monthly meetings and are not listed on the register of bills presented for approval. 1. The actual vote undertaken by the Supervisors at each le islative meeting to approve the bills includes after- the -fact approval of any Gear 14-006 Page 3 payment checks issued prior to the date of the last Township meeting. b. The register 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 f 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, 1 996, 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. Gera , 14 -006 Page 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. C. 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, 2006, through the present. a. McCue has received a set monthly retainer of $350.00 as the Township Solicitor since his initial appointment. 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. 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 Geary, as well as Township Supervisors Walter Wiltrout and Thomas Keefer, violated provisions of the State Ethics Act (Act 93 of 1998). Gea , 14 -006 Page 5 a. Park of the allegations contained within the complaint(s) was that Geary, 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 Road masterslem p loyees 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 William H. Geary by the Investigative Division of the State Ethics Commission, informing him that a complaint against him was received and that a full investigation was being commenced. a. This matter was docketed by the Commission as Geary. 12 -017. 22. McCue first asserted legal representation of Geary, in relation to the alleged violations of the Ethics Act docketed as Gea 12 -017, 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 Geary. 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 Geary 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 Geary by the Investigative Division of the State Ethics Commission was addressed to Geary's personal residence. b. The Notice Letter was delivered and provided to McCue personally by Geary. C. McCue would not have initiated correspondence to the State Ethics Commission on Geary's behalf absent direction from Geary as a Supervisor to respond to the State Ethics Commission's letter of June 6, 2012. 24. Geary, together with the other two Township Supervisors, authorized McCue to legally represent the Township Supervisors collectively in response to the alienations set forth by the State Ethics Commission. (See, Answer of Respondent William H. Geary to Investigative Complaint/Findings Report, Paragraphs 27, 27 b, a. McCue had not agreed to represent Geary in a pro bono capacity. 25. At all times between at least June 15, 2012, and March 17, 2014, McCue provided legal representation for Geary in all matters relating to allegations of wrongdoing levied against Geary by the Investigative Division of the State Ethics Commission docketed as Geary: 12017. a. McCue's last representation of Geary in the matter of Geary: 12 -017, occurred via correspondence dated March 17, 2014, issuecCue on Geary, 14 -006 Page 6 Geary's behalf, from the State Ethics Commission's Executive Director, Robert Caruso. 1. The March 17, 2014, correspondence from Executive Director Caruso acknowledged Geary's full compliance with instructions set forth in State Ethics Commission Order No. 1624. b. McCue continued to serve as the appointed Solicitor for the Township while simultaneously representing Geary in Geary: 12 -017, from June 15, 2012, through March 17, 2014, 26. In addition to asserting legal representation of Geary 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, 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 included on Township bill lists which were presented to Geary and the remainin Township Supervisors for approval at the regularly scheduled legislative meeting(sq 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 Geary in the matter of G_ earn: 12 -017. Meetin Supervisors Township Date Present GF Check No. 07/25/2012 William Geary 15246 Scott Keefer 05/29/2013 William Geary 15865 Scott Keefer Check Bill List Payee Amount* Description $2,345.00 $7,395.00 Retainer & Extra Extra 1 Retainer 08/28/2013 William Geary 16099 $4,407.60 Retainer Walter Wiltrout Extra Scott Keefer Total $14,147.60 kNote: Charges for monthly retainer andlor additional services above Commission investigation are included in check amount. McCue & Husband Law Firm McCue & Husband Law Firm McCue & Husband Law Firm a. The billings submitted by McCue to the Township for payment included legal services provided to Geary and the other Supervisors in relation to the Ethics Gea , 14 -006 Page Kill 31. Commission investigations docketed as: Geary: 12 -017; Keefer: 12 -019; Wiltrout: 12 -018. b. Geary's Answer to the Investigative Complaint/Findings Report states: "The chart confirms that the Township Supervisors approved Attorney McCue's legal representation of Messrs. Geary, Keefer and Wiltrout 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 Investiggation." (Answer of Respondent William H. Geay to Investigative ComplaintlFindings Report, Paragraph 32.) Geary participated in all three (3) votes to approve bill lists which included payments to McCue /McCue's firm for Geary's legal representation in the matter of Geary_ 12- 017 as documented below: Meeting Geary's Final Check Check Check Payee Signatories Date Action 1 Vote No. Date Amount* Vote 07/25/12 Motion 2-0 15246 07/25/12 $2,345.00 McCue & Geary 1 Voted to Husband Law Wiltrout Approve Firm 05/29/13 Motion 2 -0 15865 05/29/13 $7,395.00 McCue & Geary 1 Voted to Husband Law Wiltrout Approve Firm 08/28/13 2 m Motion 3 -0 16099 08/28/13 $4,407.60 McCue & Geary / Voted to Husband Law Wiltrout ADDrove Firm *Note: Charqes for monthly retainer and/or additional services above and beyond State Ethics Commiss[on investigation are incivaeo in cnecK amount. a. Geary voted affirmatively to approve all three (3) bill lists which included payment to McCue for billings to the Township for legal services rendered by McCue on Geary's behalf in the matter of Gea : 12 -017. b. Geary's Answer to the Investigative Complaint/Findings Report states: "Admitted that Mr. Geary 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 William H. Geary to Investigative Complaint/Findings Re ort, Paragraph 33.) McCue /McCue & 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 .duly 30, 2012, and .Tune 17, 2013, respectively. b. Check number 16099 was deposited to the McCue & Husband general operating account. Gera 14 -006 Page 8 Check number 16099, dated 8128113, posted as a debit to the Township's General Fund Account on September 9, 2013. 32. McCue's billings dated July 20, 2012, April 19, 2013, and August 5, 2013, detailed specific pprofessional services rendered, including services performed by McCue for Geary, Wiltrout, and Keefer as Township Supervisors and the fees associated with those services. (See, Answer of Res ondent WilUam H. Gea to Investi ative Co mplaintlFindings 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. 1. 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. 1. 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 Geary, Wiltrout, and Keefer in connection with the State Ethics Commission investigation. (See, Answer of Respondent William H. Geary to Investigative Complaint/Findings Report, Paragraph 35 c 1, 2.) 33. McCue provided representation to Geary, Wiltrout, and Keefer with regard to the State Ethics Commission investigation as follows. a. 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. b. 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. C. 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. 34. McCue acknowledged his representation of Geary, Wiltrout, and Keefer at taxpayer expense in an article titled, "Bullskin solicitor defends supervisors," published March 19, 2014, on TribLive. Gera , 14 -006 Page 9 a. The article documented a statement by McCue that Geary, Wiltrout, and Keefer agreed to settle the case before the Pennsylvania State Ethics 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 Geary, Wiltrout, and Keefer in relation to the Ethics Act investigations totaled at least $7,830.00. 36. By way of correspondence dated September 24, 2014, Geary was provided the opportunity to participate 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 Geary at Geary's residential address. 1. The correspondence identified the Investigative Division's interest in interviewing Geary 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 Geary's right to be represented by legal counsel at any such interview. 4. The correspondence requested that Geary forward the document to his legal counsel if any such counsel had already been obtained. aa. No legal representative had formally entered his/her appearance with the Commission on Geary's behalf at that time. 37. A response on Geary's behalf dated October 6, 2014, was received at the Pittsburgh Regional Office of the State Ethics Commission on October 15, 2014. a. The correspondence was computer generated on plain paper (no letterhead). b. The correspondence identified an opinion that the allegations against Geary were without merit. C. The correspondence requested that the allegations be dismissed. d. The correspondence documented Geary'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 1 consists of a Consent Agreement dated October 15, 2013, between Geary and the Investigative Division of the State Ethics Commission in re: William H. Geary, Docket No. 12 -017. Gear, 14 -006 Page 10 1. The Consent Agreement at ID 1 was a formal agreement between the Investigative Division and Geary for resolution of the prior State Ethics Commission case against Geary under Docket No. 12 -017. b. ID 4 consists of Order No. 1624, issued February 12, 2014, by the State Ethics Commission, which approved the Consent Agreement between Geary and the Investigative Division of the State Ethics Commission under Docket No. 12 -017. G. Geary complied with Order No. 1624, 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 William H. Geary had violated the Ethics Act. (ID 8). e. ID 20 consists of a notice letter dated August 19, 2014, that was forwarded to Geary, advising him of the general status of an investigation commenced by the Investigative Division of the State Ethics Commission into allegations that Geary had violated the Ethics Act. f. ID 23 consists of the Investigative Complaint/Findings Report; filed against Geary on December 2, 2014, under Docket No. 14 -006. 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. G. 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. 1D 30, ID 31, and ID 32 consist of minutes of regular monthly meetings of the Township Board of Supervisors on July 25, 2012, 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, 2012, throegh July 31, 2012; (2) May 1, 2013, through May 31,2013; and (3) August 1, 2013, through August 28, 2013. C. ID 34, ID 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 Gem, 14 -006 age 11 the Township General Fund Account and issued to McCue & Husband Law Firm. 41. Respondent William H. Geary ( "Geary") began serving as a Township Supervisor in 1996. McCue represented Geary, Wiltrout, and Keefer throughout the prior State Ethics Commission proceedings which began in 2012. Geary testified that the Township paid for McCue's services because he —as the Township Solicitor— represented Geary, Wiltrout, and Keefer in their capacities as Township Supervisors and the people of the Township. C. Geary 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 1 consists of a Consent Agreement dated October 15, 2013, between Geary and the Investigative Division of the State Ethics Commission in re: William H. Geary, Docket No. 12017. The Consent Agreement was signed by. (1) William H. Geary, 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 State Ethics Commission. The Consent Agreement included, inter alia, a recommendation that the State Ethics Commission find: "That a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a) occurred in relation to Geary'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." Consent Agreement, at paragraph 3 (a), I 1, page 2. 43.. ID 4 consists of Order No. 1624, issued February 12, 2014, by the State Ethics Commission, which approved the Consent Agreement between Geary and the Investigative Division of the State Ethics Commission in re: William H. Geary, Docket No. 12 -017. Based upon the particular Stipulated Findings and Consent Agreement of the parties, the State Ethics Commission held that Geary 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, Geary was directed, inter alia, to make payment in the amount of $3,000.00, payable to Bullskin Township. 44. ID 23 consists of the Investigative Complaint/Findings Report filed against Geary on December 2, 2014, under Docket No. 14 -006. 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 Gear , 14 -006 Page 12 professional services rendered between July 17, 2012, and March 26, 2013, with regard to "State Ethics Commission Investigation." 46. 1 D 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 pro ?essional 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. Ill. DISCUSSION: As a Supervisor for Bullskin Township ( "Township "), Fayette County, from January 2, 1996, through December 31, 2013, Respondent William H. Geary, also referred to hereinafter as "Respondent," Respondent Geary, and Geary, was a public official subject to the provisions of the Public Official and Employee Ethics Act (Ethics Act ), 65 Pa.C.S. § 1101 et seq. The allegations as set forth in the Investigative Complaint/Findings Report are that Geary 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 (Geary) 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: § 1103. Restricted activities Geary, 14 -006 PaGge 13 (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. We shall now summarize the relevant facts. The Township is governed by a three - Member Board of Supervisors ( "Board" Geary served as a Township Supervisor from January 2, 1996, through December 3 , 2013. Geary was 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. McCue 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 present. Any legal services that McCue provides to the Township are Gear' , 14 -006 Page 14 performed with the knowledge and consent of the Board, and he cannot initiate any legal services without approval by the Board. Since his initial appointment as the Township Solicitor, McCue has received a set monthly retainer fee in the amount of $350.00 as approved by the Board. McCue receives additional payment at an hourly rate for professional services performed beyond those covered by the monthly retainer fee. McCue submits a monthly invoice to the Township seeking payment of his monthly retainer fee, and he may submit additional invoices to the Township requesting payment Tor professional services not covered by the monthly retainer fee. McCue is issued one check from the Township General Fund Account that represents payment for his monthly retainer fee and any additional professional services performed on behalf of the Township during the applicable billing period. On April 5, 2012, the Investigative Division received signed, sworn complaints alleging that Geary and the other two Township Supervisors, Walter Wiltrout ( "Wiltrout ") and Thomas Keefer ( "Keefer "), violated the Ethics Act. The allegations, hereinafter referred to as "the 2012 Allegations," included, in pertinent part, that the Supervisors set a monthly vehicle allowance for the Supervisors and for themselves as road maste rslemp to ees of the Township which was in opposition to what was set by the Township Board of Auditors, specifically, reimbursement at the standard IRS rate for documented mileage. On April 12, 2012, the Investigative Division initiated a preliminary inquiry as to the complaints against Geary, Wiltrout, and Keefer. The Investigative Division docketed the matter involvin the complaint against Geary as Gea : 12 -017, hereinafter referred to as "Case 12 -017.' On June 6, 2012, the Investigative Division forwarded a letter ( "Notice Letter$J) to Geary, informing him that a complaint against him was received and that a full investip ion was bung commenced. The Nonce Letter was addressed to Geary's personal residence and not to McCue or McCue's office as the Township Solicitor. Geary personally delivered the Notice Letter to McCue. Geary, Wiltrout, 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 Geary in relation to Case 12 -017 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 Geary'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 Geary's behalf absent direction from Geary 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 Geary, Wiltrout, and Keefer in relation to the 2012 Allegations. We further take administrative notice that by Interlocutory Order issued October 4, 2013, the Hearin Officer for the consolidated cases denied a "Motion to Disqualify Counsel for Respondents' R"Motion to Disqualify Counsel ") filed by the Investigative Division. The Motion to Disqualify unsel asserted ' inter alia, that there was a p�otential conflict of interest under Rule 1.7 of the Rules of ProFe—ssi no al Conduct resulting from McCue's representation of all Respondents in the consolidated cases as well as the Township and several Township re resentatives /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. Gea , 14 -006 age 15 On February 12, 2014, this Commission issued Order No. 1624, which approved a Consent Agreement between Geary and the Investigative Division in Case 12 -017. As part of the Consent Agreement, Geary admitted to a violation of Section 1103(a) of the Ethics Act. We held that based upon the particular Stipulated Findings and Consent Agreement of the parties, Geary violated Section 1103(a) of the Ethics Act in relation to his use of authority of his office as a Member of the Board 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, Geary 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 Geary in all matters relating to Case 12 -017. McCue continued to serve as the a pointed Township Solicitor while simultaneously representing Geary in Case 12 -017. McCue last represented Geary in Case 12 -017 in relation to correspondence dated March 17, 2014, issued to McCue on Geary's behalf by the Executive Director of the State Ethics Commission. The aforesaid correspondence acknowledged Geary's full compliance with the directives set forth in Order No. 1624. In addition to asserting legal representation of Geary, Wiltrout, 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's). 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 Geary, Wiltrout, 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, 2012, 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 in 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 Geary, Wiltrout, and Keefer in relation to the investigations into the 2012 Allegations. The McCue & Husband invoices dated July 20, 2012, April 19, 2013, and August 5, 2013, were included on bill lists that were presented to the Board for approval at regularly scheduled legislative meetings. On July 25, 2012, May 29, 2013, and August 28, 2013, Geary participated in votes by the Board to approve bill lists which included payments to McCue & Husband for the legal services provided to Geary, Wiltrout, and Keefer in relation to the investigations into the 2012 Allegations as well as payments for unrelated legal services and the monthly retainer fee. Geary signed, as an authorized Township si nato , all three of the Township checks issued to McCue & Husband that were associated w7h payment of the fees charged for McCue's representation of Geary, Wiltrout, and Keefer in relation to the 2012 Allegations. McCue acknowledged his representation of Geary, Wiltrout, and Keefer at taxpayer expense in an article titled, "Bullskin solicitor defends supervisors," published March 19, Gear 14 -006 Page 16 2014, on TribLive. The article documented a statement by McCue that Geary, Wiltrout, 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 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: Geary used the authority of his public office when he voted to approve bill lists that included invoices 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; Geary realized a private pecuniary benefit in that he did not have to personally pay the Township Solicitorfor the legal representation that was provided to him; in 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 Geary 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 Geary, Wiltrout, and Keefer in relation to the investigations into the 2012 Allegations, plus a treble penalty in the amount of $7,830.00. Geary 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 road masters 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 expend 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 cantrary, their actions were taken for the benefit of the Townshi 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, Geary made a Motion to Dismiss based on the doctrines of res 'udicata and collateral estoppel. Specifically, Geary 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 Geary, Wiltrout, and Keefer to be represented by McCue, as the Township Solicitor, in those proceedings. Contrary to Geary'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 03 a of the Ethics Act for Geary, Wiltrout, and Keefer to be represented by McCue, as the Township o icitor, ai 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 deny Geary 's Motion to Dismiss. Gear• , 14 -406 Page 17 We must now determine whether the actions of Geary 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. Penns 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 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). Geary'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 m asterslem p loyees 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. Geary chose to enter into a Consent Agreement with the Investigative Division, through which Geary: (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. 1624. With regard to the current allegations, Geary used the authority of his office as a Supervisor when he, along with Wiltrout and Keefer, authorized McCue to represent the Supervisors as a group in response to the 2012 Allegations. Geary further used the authority of his office as a Supervisor: (1) when, on July 25, 2012, May 29, 2013, and August 28, 2013, he participated in votes by the Board to approve bill lists which included payments to McCue & Husband for the legal services provided to Geary, Wiltrout, 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 Geary , Wiltrout, and Keefer as to the 2012 Allegations. The Township paid a total amount of at least $7,830.00 for McCue's representation of Geary, Wiltrout, and Keefer in relation to the investigations into the 2012 Allegations. We reject Geary'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, Geary 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 Geary's entering into the Consent Agreement, the necessary conclusion is that the Township Solicitor's representation of Geary was personal in nature. Such representation did not pertain to defending Geary's conduct in carrying out his official duties as a Supervisor but rather to defending Geary's conduct that was an admitted violation of the Ethics Act. Therefore, Geary 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 AppeaC, 81 Pa. Super. 482 (1923). We hold that Geary 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 Supervisorto 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 invoices from the Township Solicitor in regard to such representation before the State Ethics Commission. Cf., Huhn, Order 1054; Czyzyk, 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. Gear V, Page 18 We determine that restitution is warranted in the amount of $2,610.00, representing one -third of the total amount of $7,530.00 in Township funds paid to the Township Solicitor for providing legal services to Geary, Wiltrout, and Keefer as a group in relation to the investigations into the 2012 Allegations. Cf., Haaf, Order 914; Sanders, Order 786; Borland, Order 785. We shall not impose a tr-We penalty. Accordingly, Geary is ordered to make payment of restitution in the amount of $2,610.00 payle 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. Geary 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: As a Supervisor for Bullskin Township { "Township "), Fayette County, from January 2, 1996, through December 31, 2013, Respondent William H. Geary ( "Geary") was a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seg. Geary violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § I I03(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 invoices from the Township Solicitor in regard to such representation before the State Ethics Commission. In Re: William H. Geary, File Docket: 14 -006 Respondent Date Decided: 10/19/16 Date Mailed: 10/27/16 ORDER NO, 1697 2. 3. El William H. Gear ("G "), 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(a), 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 pa invoices from the Township Solicitor in regard to such representation before the State Ethics Commission. Geary 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 (30t ) day after the mailing date of this Order. Geary is 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 with paragraph 2 or 3 of this Order will result in the institution of an order enforcement action. BY THE COMMISSION, a Nicholas A. Colafella, Chair