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HomeMy WebLinkAbout1025 KaputaIn Re: Garry Kaputa STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 96- 005 -C2 Date Decided: 10/22/96 Date Mailed: 10/28/96 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Rev. Joseph G. Quinn Boyd E. Wolff This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was not filed and a hearing was deemed waived. The record is complete. This adjudication of the State Ethics Commission will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Act 9 of 1989, 65 P.S. §408(h). Any person who violates confidentiality of the Ethics Law is guilty of a misdemeanor subject to a fine of not more than $ 1,000 or imprisonment for not more than one year, 65 P.S. §409(e). Confidentiality does not preclude discussing this case with an attorney at law. Kaouta, 96- 005 -C2 Page 2 I. ALLEGATION: That Garry Kaputa, a public official in his capacity as a member of the Forest Area School District Board of Directors, Warren County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when he used the authority of his office for the private pecuniary benefit of a member of his immediate family by participating in school board actions, discussions and /or decisions resulting in the hiring of his spouse for a position with the school district. Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. §403(a). Section 2. 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. "Conflict" or "conflict of interest" 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 P.S. §402. 11. FINDINGS: 1. The Investigative Division of the State Ethics Commission received information alleging that Garry Kaputa violated provisions of the State Ethics Act (Act 9 of 1989). 2. Upon review of the information by the Director of Investigations a recommendation was made to the Executive Director to commence a preliminary inquiry. 3. At the direction of the Executive Director, the Investigative Division initiated a preliminary inquiry on February 8, 1996. 4. The preliminary inquiry was completed within sixty days. 5. On April 8, 1996, letter was forwarded to Garry Kaputa, by the Executive Director 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. Kaputa, 96- 005 -C2 Page 3 a. Said letter was forwarded by certified mail, no. P 281 104 811. b. The domestic return receipt bore the signature of Garry Kaputa, with a delivery date of April 16, 1996. 6. The full investigation was commenced at the direction of the Executive Director of the State Ethics Commission. 7. Periodic notice letters were forwarded to Garry Kaputa in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 8. The Investigative Complaint was mailed to the Respondent on September 3, 1996. 9. Garry Paul Kaputa has served as a member of the Forest Area School Board since December 7, 1987. 10. The Forest Area School District (FASD) provides public educational services for all of Forest County, President Township, Venango County and Limestone Township, Elk County. 11. The Forest Area School District has three (3) educational facilities, two (2) located in Tionesta and one (1) in Marienville. a. The district is split geographically by the Allegheny National Forest. b. The district refers to it's schools by geographic location, East Forest (Marienville) and West Forest (Tionesta). c. ' The district's East Forest School is located approximately thirty (30) minutes from the West Forest Schools. 12. The Forest Area School District employs approximately 100 faculty and staff personnel. a. Educational staff comprise the majority of the district's employees. 13. Faculty and support service employees are covered by separate collective bargaining agreements with the district. 14. The Forest Area School District does not have written guidelines for employee hirings. a. The board of directors handles the application and interview process for the position of District Superintendent. 1 5. Since March 16, 1993, the superintendent has handled the application process for all hirings related to faculty and support staff. a. The superintendent makes a personnel recommendation to the board for ratification. Kaouta, 96- 005 -C2 Page 4 b. This procedure has been utilized since Howard Ferguson, Ph.D., became Superintendent on or about March 16, 1992. c. Prior to Ferguson's hiring, the district utilized a Personnel Committee comprised of board members for district hirings. 16. Superintendent Ferguson utilizes the following process for district hirings. a. Available positions are initially posted internally at the district's three (3) schools. b. Preference is given to qualified current and former employees. c. If no qualified applicants are found after a position is posted internally, the position is advertised in the newspaper. d. The superintendent identifies prospective employees by resume review and handles the interview process. e. The superintendent operates in concert with applicable provisions of the district's collective bargaining agreements. f. The superintendent makes a recommendation to the board on who to hire based on this screening process. 17. Support service employees of the Forest Area School District, covered by Collective Bargaining Agreements, have the following specific contract language as part of Article VIII, other conditions of employment: a. Request for Transfer: The parties agree that each employee within the bargaining unit shall have the right to request in writing a transfer to a different building or position. Such request shall be filed with the Superintendent who shall have the unlimited right to grant or deny such request. The employee shall have the right to appeal to the Board in the event of denial by the Superintendent. It is further understood and agreed that denial by the Board for any reason shall not be subject to the grievance procedure. 2. Vacancies: The District will, as soon as possible after it has knowledge of a vacancy in school service personnel, post a notice of a vacancy, containing a public description of the necessary qualifications, salary, and application procedures. The said notice shall be posted for a period of ten(10) days. Employees of the district will be considered for vacancies in their job classification based upon length of service and qualifications with the district. The district reserves the right to make (the) final selection. However, if the district fills the vacancy from within the bargaining unit, the position will be offered to the employee with the greatest length of service with the district provided that the employee possesses the necessary qualifications. Kaouta, 96- 005 -C2 Page 5 3. Involuntary Transfers: The District shall have the unrestricted right to transfer any employee within the bargaining unit to any building or position, provided however, no such transfer shall be made for the purpose of punishing an employee. 18. Part of the educational services offered by the Forest Area School District include a federally funded remedial reading and mathematics program known as Chapter 1. a. The FASD Chapter 1 Program is operated by district employees based on available federal funding and pupil needs. b. The district employed teachers and aides in it's Chapter I Program on an as needed basis within budgetary constraints. 19. Garry Paul Kaputa and Kathy Jean Beane were married on December 29, 1989. a. Marriage License No. 4162 was issued to Garry Paul Kaputa and Kathy Jean Beane on December 18, 1989, by the Forest County Clerk of Orphans Court. 20. Kaputa and Beane shared a common residence during 1988 and 1989. 21. Kathy Jean Beane was hired by the district as a Chapter I Aide on December 14, 1988. a. Beane's hiring was on a part-time basis, twenty -one (21) hours per week. 22. On December 14, 1988, Kathy Beane's hiring was ratified by the FASD Board of Directors by a 6 to 0 vote with one abstention. a. Garry Kaputa abstained from the vote. 23. Kathy Jean Beane- Kaputa continued as a Chapter I Aide with uninterrupted service from December 14, 1988, until approximately June 30, 1993. a. Kathy Kaputa was covered by the Support Service Employees Collective Bargaining Agreement. 24. The FASD Board of Directors took the following actions regarding the employment of Kathy Beane - Kaputa between January 1990 and December 1993. 01/10/90 Kathy Kaputa was hired as Board Secretary by a 7 -0 -1 vote with Garry Kaputa abstaining. 06/20/90 Kathy Kaputa was hired as a Chapter I Aide by a 7 -0 -1 vote with Garry Kaputa abstaining. Kathy Kaputa was approved to work an additional six(6) days to complete end of year Chapter I paperwork and evaluation reports Kaputa 96- 005 -C2 Page 6 by an 8 -0 vote with Garry Kaputa participating. Three(3) other unrelated actions were approved as part of this same vote. Motion to approve the Chapter I budget passed 7 -0 -1 with Garry Kaputa abstaining. 09/19/90 Approval for payment of credits for Kathy Kaputa, Chapter I Aide and Board Recording Secretary for computer courses being offered by University of Pittsburgh at Bradford. Five(5) other actions were ratified along with this by 7 -0 -1 vote with Garry Kaputa abstaining. 05/12/93 Adjustment of the Chapter I program due to reduced funding with the reduction eliminating the position of Chapter I Aide at West Forest Elementary School and a .35 Chapter I Aide at East Forest Elementary School. These positions were held by Mrs. Kathy Kaputa and Mrs. Donna Oliver respectively by 7 -0 vote, with Garry Kaputa participating. 12/21/93 Support Service personnel contract was approved (Special) with three members absent, Kaputa was present. The motion and second were recorded but the vote was not. Five members were present. 25. On April 14, 1993, Sandra Hanson secretary at the West Forest Jr. -Sr. High School announced to the board her intent to retire from the district effective June 30, 1993. a. Hanson's retirement was accepted by the board at their April 14, 1993, meeting by 8 -0 vote with Garry Kaputa participating. b. Hanson received written confirmation of the board's acceptance of her retirement request from Superintendent Howard Ferguson on or about April 15, 1993. 26. On April 15, 1993, Kathy Kaputa furnished Superintendent Ferguson with a written letter expressing her interest in the secretarial position at the West Forest Jr. -Sr. High School, due to become vacant on June 30, 1993. a. Kathy Kaputa's correspondence was received by the Forest Area School District eleven (1 1) days prior to the position being posted. (See Finding #27). b. Kathy Kaputa was aware of the vacancy as she is the Board Recording Secretary for the Board and was present at the April 14, 1993, meeting, when Sandra Hanson's retirement was accepted by the board. 27. On April 26, 1993, Superintendent Ferguson posted four(4) available positions with the district including Industrial Arts Teacher, Business Education Teacher, Secretary to the Principal and Teachers Aide. a. The position of Secretary to the Principal included the following job description: Kaouta, 96- 005 -C2 Page 7 "SECRETARY TO THE PRINCIPAL. WEST FOREST HIGH SCHOOL. THE SUCCESSFUL CANDIDATE WILL NEED TO HAVE HIGH SKILLS IN TYPING, FILING, AND COMPUTER OPERATION. EXPERIENCE IN WORDPERFECT 5.1 WILL BE AN ASSET. ABILITY TO GREET THE PUBLIC IS A NECESSITY. 8 HOURS PER DAY. APPLICATIONS SHOULD BE SUBMITTED TO SUPERINTENDENT OF SCHOOLS, DR. HOWARD FERGUSON. DEADLINE FOR APPLICATIONS IS MAY 11, 1993." 28. The Forest Area School District received four(4) applications for the secretarial position. a. Applications were received from Kathy Kaputa, Shirley L. Taylor, Ellen Louise Holt and Ruth L. Seese. b. Applications were received as follows: 1) Ellen Louise Holt, August 25, 1992, for the 1992 -93 school year. 2) Ruth L. Seese, April 14, 1993. 3) Kathy Kaputa, April 15, 1993. 4) Shirley Taylor, May 10, 1993. c. Ruth L. Seese was only interested in employment at the East Forest Jr.- Sr. High School. No position was available at East Forest. d. Ellen Louise Holt was primarily interested in a position as a district school bus driver. e. Shirley L. Taylor was interested in the position and had prior secretarial and accounting experience as identified on her resume. Taylor did not work for the district. 29. By way of correspondence dated May 14, 1993, to Kathy Kaputa from Superintendent Ferguson, Kaputa was advised that her position as Chapter 1 Aide was eliminated by the board at their May 12, 1993, regular meeting. 30. Superintendent Ferguson reviewed applications for the secretarial position at West Forest Jr. -Sr. High School as was the normal hiring practice. a. Ferguson determined that Kathy Kaputa was the most qualified applicant for the position. b. Ferguson based this on several factors including her prior service to the district as Chapter 1 Aide and Board Recording Secretary. c. Ferguson was familiar with Kathy Kaputa's work product and the quality of work he felt she was capable of doing based on her prior service. d. Kathy Kaputa, as a current district employee, was given preferential consideration over non - district applicants. Kaouta, 96- 005 -C2 Page 8 e. Ferguson contends that the spousal relationship between Garry and Kathy Kaputa did not factor into his decision to recommend Kathy Kaputa for the position. 31. Superintendent Ferguson scheduled a special meeting on May 27, 1993, for the primary purpose of approving a sixth grade field trip to Geauga Lake scheduled for the following day. a. Four(4) agenda items were acted upon. b. The transfer of Kathy Kaputa from Chapter 1 Aide to Secretary at West Forest High School was listed as Agenda Item D. c. Five (5) board members were present for this special meeting, including Garry Kaputa. 32. A motion to approve the transfer of Kathy Kaputa from Chapter I Aide at West Forest Elementary School to Secretary at the West Forest High School was made by Clyde Scott and seconded by Carol Schnader. a. The motion was approved by a 5 to 0 vote. b. Garry Kaputa participated in the vote. c. Five (5) votes were needed to approve the motion. d. The hiring was considered a transfer since Kathy Kaputa was already employed by the district. 33. Garry Kaputa voted to approve the motion because his vote was needed for the motion to pass. a. Kaputa had abstained on other issues affecting his wife. 34. The transfer of Kathy Kaputa based on Ferguson's recommendation was consistent with his philosophy of trying to keep district employees with the district whenever possible. 35. There was no urgency in the hiring of Kathy Kaputa that required her to be hired at a special meeting on May 27, 1993. a. The secretarial position Kaputa was hired to, was not effective until July 1, 1993. b. The board had a regular meeting scheduled for June 16, 1993, where more than five (5) members were likely to be in attendance. c. Superintendent Ferguson had the authority to hire personnel temporarily pending board approval. 36. Board members Linda Clymer, Wayne Fitzgerald, Edward Oliver and Mark Hitchcock were all absent from the Board's May 27, 1993, Special meeting. Kaouta, 96- 005 -C2 Page 9 a. All four (4) were aware of the spousal relationship between Garry and Kathy Kaputa. b. All four (4) would have voted in favor of hiring Kathy Kaputa provided she was the superintendent's recommendation. 37. Kathy Kaputa's hiring as Secretary at West Forest Jr. -Sr. High School kept her at the same pay scale as her position as a Chapter 1 Aide. a. Raises were consistent with terms of the Support Service Personnel Collective Bargaining Agreement. 38. As a direct result of Garry Kaputa casting the fifth and decisive vote to hire his wife Kathy as Jr. -Sr. High School Secretary on May 27, 1993, Kathy Kaputa received a private pecuniary benefit of her continued district employment with hourly wages of $8.49, for the 1993 -94 school year, and $9.33, for the 1994- 95 school year as a result of her hiring /transfer. a. Kathy Kaputa's continued employment resulted in an increase from a nine (9) month position (Chapter 1 Aide) to a twelve (12) month position (Secretary). b. Kathy Kaputa's salaries are as follows: 1993: Aide - $ 5,572.82 Secretary - $ 8,722.81 $14,295.63 1994: Secretary - $17,369.09 1995: Secretary - $18,006.99 III. DISCUSSION: At all times relevant to this matter, the Respondent, Garry Kaputa, hereinafter (Kaputa), has been a public official subject to the provisions of the Public Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, et seq. The issue before us is whether Kaputa violated Section 3(a) of Act 9 of 1989 regarding the allegation that he used the authority of his office for the private pecuniary benefit of a member of his immediate family by participating in school board actions resulting in the hiring of his spouse for a position with the school district. Pursuant to Section 3(a) of the Ethics Law quoted above, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989 as follows: Kaputa, 96- 005 -C2 Page 10 65 P.S. §402. facts. Section 2. 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. "Conflict" or "conflict of interest" 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. Having noted the issues and applicable law, we shall now summarize the salient Since December, 1987, Kaputa has served as a Board Member of the Forest Area School District (District) which employs approximately a hundred faculty and staff who are covered by separate collective bargaining agreements; As to employee hirings, the District does not have any written guidelines. Since 1993, the Superintendent handles the application process for all hirings related to faculty and support staff. The Superintendent then makes personal recommendations to the Board for ratification of the applicants he selects. The Superintendent follows a certain process for District hirings: positions are initially posted at the District's three schools; preference is given to qualified current or former employees; positions are advertised in the newspaper if no qualified applicants are found after the internal posting; prospective employment applicants are identified by the Superintendent by reviewing resumes; the interview process is conducted by the Superintendent in conformity with the applicable provisions of the District collective bargaining agreements; and recommendations are made by the Superintendent to the Board. In December, 1988, Kathy Jean Beane was hired as a Chapter I Aide for the District on a part -time basis consisting of 21 hours per week. Beane subsequently married Kaputa on December 29, 1989. The Chapter I program is operated by the District within the limitations of available Federal funding and student needs. Kathy Jean Beane - Kaputa continued as a Chapter I Aide with uninterrupted service from December, 1988 through June, 1993. As to the various actions taken by the Board as to Kathy Kaputa in her Chapter I Aide position, Kaputa typically abstained or cast non - deciding votes. Kathy Kaputa was advised by the Superintendent that her position as Chapter I Aide was eliminated by the Board at a May, 1993 meeting. When the High School Secretary, in April, 1993, announced her intent to retire, Kathy Kaputa furnished the Superintendent with a written letter expressing her interest in that position. This occurred eleven days before the position was posted. After the Kaouta, 96- 005 -C2 Page 11 Superintendent posted that position within the District, four applications were received including one from Kathy Kaputa. As to the other three applicants, one was only interested in employment at the Junior High School, the second was primarily interested in a bus driver position, and the third who was interested in the position and had prior secretarial and accounting experience was not an employee of the District. Following a review of the applications for the secretarial position, the Superintendent determined that Kathy Kaputa was the most qualified applicant. The Superintendent made his decision based upon Kathy Kaputa's prior service as a Chapter I Aide and Board Recording Secretary, his familiarity with her work product, and lastly, the preference for current District employees. At a special meeting of the School District in May, 1993, several items including the hiring of Kathy Kaputa were placed on the agenda. Kathy Kaputa was hired by a successful motion which passed on a 5 -0 vote with Kaputa participating. Since five votes were needed to approve the motion, Kaputa's vote was decisive. Although Kaputa had abstained on other issues affecting his wife, in this instance he voted to approve the motion. There was no urgency in hiring Kathy Kaputa at that time since the secretarial position would not become available until July and there was a regular board meeting scheduled for June, 1993. Of the four Board Members who were absent at the May, 1993 Board meeting, they knew that Kathy Kaputa was the spouse of Kaputa and would have voted to hire her based upon the Superintendent's recommendation. Although Kathy Kaputa's hourly pay rate did not change from the position of Chapter I Aide to that of High School Secretary, she received an increase in compensation because the secretary position is full -time. The salary that Kathy Kaputa received for the years 1993 through 1995 is delineated in Fact Finding 38. Having summarized the above relevant facts, we must now determine whether the actions of Kaputa violated Section 3(a) of Act 9 of 1989. In order to establish a violation, Section 3(a) requires a use of the authority of office or confidential information by a public official /employee for the private pecuniary benefit of himself, a member of his immediate family, or business with which he or a member of his immediate family is associated. In this case, we find that Kaputa violated Section 3(a) of Act 9 of 1989 when he cast the deciding vote to hire his spouse to the full -time position as High School Secretary. There was a use of authority of office which was the deciding vote cast by Kaputa in hiring his spouse. Juliante, Order 809. Such use of authority of office resulted in a private pecuniary benefit which consisted of the hiring of his spouse to the full -time secretary position which resulted in an increase in her yearly salary. Lastly, the private pecuniary benefit enured to a member of his immediate family. The term "immediate family" under the Ethics Law is defined as follows: Section 2. Definitions "Immediate family." A parent, spouse, child, brother or sister. 65 P.S. §402. In this case, since Kathy Kaputa is the spouse of Kaputa, clearly she is a member of his immediate family as that term is defined under the Ethics Law. Kaouta, 96- 005 -C2 Page 12 The action taken by Kaputa as to the hiring of his spouse to the secretary position with the District constituted a violation of Section 3(a) of Act 9 of 1989. Bambino, Order 1000. Turning to the matter of restitution, Section 7(13) of Act 9 of 1989, 65 P.S. §407(13), specifically empowers this Commission to impose restitution in those instances where a public official /employee has obtained a financial gain in violation of the Ethics Law. In this case, through the exercise of our discretion, we will not impose restitution based upon our review of the totality of facts and circumstances. Since Kaputa remains in office, we remind him that public office is a public trust. 65 P.S. §401. Accordingly, as to future matters involving any private pecuniary benefit as to Kaputa himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Kaputa must abstain and satisfy the disclosure requirements of Section 3(j) of the Ethics Law. 65 P.S. §403(j). IV. CONCLUSIONS OF LAW: 1. Garry Kaputa, as a member of the Forest Area School District Board of Directors in Warren County, is a public official subject to the provisions of Act 9 of 1989. 2. Kaputa violated Section 3(a) of Act 9 of 1989 when he cast the deciding vote to hire his spouse to the compensated position of District High School Secretary. In Re: Garry Kaputa ORDER NO. 1025 File Docket: 96- 005 -C2 Date Decided: 10/22/96 Date Mailed: 10/28/96 1. Garry Kaputa, as a member of the Forest Area School District Board of Directors in Warren County, violated Section 3(a) of Act 9 of 1989 when he cast the deciding vote to hire his spouse to the compensated position of District High School Secretary. BY THE COMMISSION, & U4t) & etibLid DANEEN E. REESE, CHAIR