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HomeMy WebLinkAbout1030 LivingstonIn Re: William Livingston STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 95- 036 -C2 Date Decided: 11/4/96 Date Mailed: 11/13/96 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger 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 AI 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 filed and a public hearing was held at the request of Respondent. 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. Livingston, 95- 036 -C2 Page 2 I. ALLEGATION: That William Livingston, a public official in his capacity as Sheriff of Dauphin 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 directing and /or soliciting deputy sheriffs to purchase tickets to fundraisers, display campaign posters, distribute campaign literature and engage in other related activities in relation to his son's candidacy for county sheriff based upon an understanding that their continued employment would be affected thereby. Section 3(a) of Act 9 of 1989 provides: 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 3. Restricted activities (c) No public official, public employee or nominee or candidate for public office shall solicit or accept, anything of monetary value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding of that public official, public employee or nominee that the vote, official action, or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 P.S. §403(c). 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. livinaston, 95- 036 -C2 Page 3 II. FINDINGS: A. Pleadings 1. On July 14, 1995, a letter was forwarded to William Livingston 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. a. Said letter was forwarded by certified mail, no. P 016 239 462. b. The domestic return receipt bore the signature of Naomi S. Livingston with a delivery date of July 15, 1995. 2. On November 13, 1995, the Executive Director of the State Ethics Commission filed an application for a ninety day extension of time to complete the investigation. 3. The Commission granted an order on December 7, 1995, granting the ninety day extension. 4. On January 25, 1996, the Executive Director of the State Ethics Commission filed an application for a second ninety day extension of time to complete the investigation. 5. The Commission granted an order on February 15, 1996, granting the second ninety day extension. 6. The Investigative Complaint was mailed to the Respondent on July 5, 1996. 7. William Livingston. served as Sheriff of Dauphin County from January of 1976 to December of 1995. 8. Deputy Sheriff positions within the Sheriff's Department are patronage jobs filled by the Sheriff. 9. The Third Class County Code provides that the power to appoint deputies rests with the Sheriff. a. The Sheriff also has the power to revoke deputy certifications. 10. During Livingston's tenure as Sheriff for Dauphin County, various full -time and part-time deputies were employed. 11. During 1995, Livingston's last year in office, sixteen (16) full -time deputies and forty -four (44) part -time deputies were employed. a. Also employed was a Chief Deputy, two Assistant Chief Deputies, and two Real Estate Deputy Sheriffs. 12. In 1995, Gerry Livingston was employed as an Assistant Chief Deputy Sheriff. a. Gerry Livingston is the son of William Livingston. Livincaston, 95- 036 -C2 Page 4 b. Gerry Livingston was hired by William Livingston in 1976 as a part-time deputy sheriff. c. On June 4, 1984, Gerry Livingston was appointed a full -time deputy by William Livingston. d. On July 11, 1988, William Livingston promoted Gerry Livingston to Assistant Chief Deputy Sheriff. 13. In January of 1995, Gerry Livingston sought the Republican nomination for the position of Dauphin County Sheriff. 14. Gerry Livingston filed a Political Committee Registration Statement with the Dauphin County Election Bureau on January 9, 1995. a. His committee was identified as Livingston for Sheriff Committee. b. The committee was formed to support Gerald Livingston's candidacy for the office of Sheriff. 15. Gerry Livingston had opposition for the Republican nomination for Dauphin County Sheriff in the 1995 primary election. 16. Employees of the Dauphin County Sheriff's Office have contributed to Gerry Livingston's campaign committee. a. Solicitations made by Gerry Livingston were done with the knowledge and consent of William Livingston. 17. Tickets to Gerry Livingston fundraisers were sold to deputies in the Offices of the Dauphin County Sheriffs Department. a. Ticket sales were arranged by Gerry Livingston. b. Gerry Livingston gave Assistant Chief Deputy Thomas Quigley tickets to sell. c. Real Estate Deputy Kathryn Walt was given tickets by Gerry Livingston to distribute to employees who had previously agreed to make purchases. (1) This occurred in the Sheriff's Office during the business hours. 18. Sheriff William Livingston was aware of and condoned the actions of Gerry Livingston to make and arrange the sale of fundraiser tickets. 19. Sometime prior to the April 23, 1995 pig roast fundraiser, Deputy Sheriff Richard Behne was pressured by Gerry Livingston in the Sheriff's Office to buy tickets. 20. Peggy Easton, a deputy sheriff since 1975, purchased tickets to Gerry Livingston fundraisers. a. Easton contributed because she wanted to keep her job. Livingston, 95- 036 -C2 Page 5 b. She was concerned that if a new group were elected, she might lose her job. c. She did little campaigning for the Sheriff in previous campaigns because he had no opposition. 21. When William Livingston ran for office there was no pressure to make contributions, but that changed when Gerry ran for office. 22. Michael Rinehart has been employed by the Dauphin County Sheriff's Office since 1983 as a deputy sheriff and Assistant Chief Deputy Sheriff. a. He purchased fundraiser tickets from Gerry Livingston in the Sheriff's office. b. Rinehart felt pressured to purchase tickets to fundraisers. 23. Marcial DeJesus has been employed as deputy sheriff for Dauphin County for approximately 20 years. a. He purchased a ticket to the pigroast fundraiser from Gerry Livingston giving him $20 in cash. (1) The transaction occurred in the Offices of the Sheriff's Department. 24. On or about May 10, 1995, six deputies from the Dauphin County Sheriff's Department sent a letter to the District Attorney of Dauphin County outlining ten complaints regarding the actions of Sheriff William Livingston and Gerry Livingston. a. The letter was signed by Deputies Robert [sic] Behne, Anthony Clements, Marcial DeJesus, Patrick Horner, Richard Shroy and John Weaver. b. The ten complaints are itemized as follows: (1) Any full time deputy who did not attend campaign meetings would be fired. (2) If we did not buy "Pig Roast" picnic tickets, we would be fired. (3) If we did not have "Jerry Livingston for Sheriff" signs on display in our yards, we would be fired. (4) If we did not place "Livingston" bumper stickers on our personal vehicles, we would be fired. (5) Conditioning permission to take a vacation day on agreement to display "Livingston" bumper stickers on personal vehicles. (6) Openly being asked "who are you going to vote for ?" (7) Statements that "you are being watched on and off duty." Livingston, 95- 036 -C2 Page 6 (8) Having a deputy drive the Sheriff to the parking lot where deputies park their vehicles so "he could see if they have a bumper sticker on their vehicle." (9) Having part-time deputies check the parking garage to count vehicles with bumper stickers. (10) Having one of us do political activities for the campaign, while on duty and in a marked "Sheriff "vehicle. 25. Sheriff William Livingston subsequently received a copy of the letter sent by the six deputies. 26. The following actions occurred after Livingston received the letter: a. On May 11, 1995, the day after receiving the letter, William Livingston stated to the deputies that he had to keep his cool. (1) This was in reference to actions against the deputies in retaliation to filing the complaint. 27. Sheriff William Livingston fired Deputies Behne, Horner and Shroy after the May 16, 1995, primary election. a. These deputies were part of the group that filed the complaint with the District Attorney and Attorney General. b. The firings were later overturned following grievance hearings which determined that the terminations were unjustified. B. Testimony 28. Patrick Horner (Horner) is presently employed as a detective with the Dauphin County District Attorney's Office, Criminal Investigation Division. a. Horner was previously employed as a full -time Deputy Sheriff with the Dauphin County Sheriff's Office. b. In 1995, during the course of his employment with the Dauphin County Sheriff's Department, Horner was asked to participate in campaign activities for Gerald Livingston. c. On April 17, 1995, shortly after a "fire hall" fund raiser had been held and six days before the "pig roast" fund raiser was to be held, Sheriff William Livingston approached Horner in the Sheriff's Office during the course of a normal working day and asked Horner why Horner had not attended the prior fund raiser at the fire hall. (1) the Horner fire haul Sheriff he until the dayof�the event and that he had a prior engagement. Livingston, 95- 036 -C2 Page 7 (2) Sheriff Livingston then questioned Horner about the VFW fund raiser, whereupon Horner responded that he didn't know about it. (3) Horner testified, "[Sheriff William Livingston] said then, you'd better buy a ticket to the pig roast or you won't have a job." (a) Sheriff Livingston appeared to Horner to be serious when he made these comments to Horner. (b) Horner felt that if he didn't buy a pig roast ticket, he would be out of a job. (c) Horner purchased a ticket to the pig roast. [1] The ticket cost Horner $20. (d) Horner did not attend the pig roast. (4) Horner memorialized this event by writing it down on a piece of paper, which is in evidence as ID -8, within approximately ten minutes after the incident occurred (see Finding 41). (a) Horner's notation of this event is dated April 17, 1995. (5) At the bottom of the note are listed the names of five other employees of the Sheriff's Department who were present and who overheard these statements being made to Horner (see Finding 41). (6) Horner and these other deputies ultimately filed charges against Sheriff Livingston with the District Attorney's Office. d. Approximately 1 -2 weeks after the pig roast fund raiser, Horner was asked by Sheriff William Livingston to place a campaign bumper sticker for the Gerald Livingston for Sheriff campaign on Horner's personal vehicle. (1) Horner testified as follows: Q Specifically, what was said to you at this time? A If I remember correctly, it was the sheriff stated to me you are going to put a bumper sticker on your car, aren't you. And I stated yes. Q What was your state of mind as this comment was being made, if you can recall? A It was one of those questions where it wasn't really a question. It was a statement that you are going to do it, type of statement, whether you like it or not. (Tr. at 23). Livingston, 95- 036 -C2 Page 8 (2) This incident took place within the Sheriff's Department during the course of a normal working day. e. Horner witnessed Sheriff William Livingston making comments to other employees of the Sheriff's Department, by which comments Sheriff Livingston requested that such individuals participate in Gerald Livingston's campaign related activity. (1) These comments were made in the Sheriff's Department during normal working days. f. Prior to the primary election, Horner overheard frequent statements made by Sheriff William Livingston to other deputies in the Sheriff's Department during normal working days "that they'd better put up campaign signs if they want a job." (Tr. at 24). On August 10, 1995, Sheriff William Livingston revoked Horner's appointment as a Deputy Sheriff. h. R -2 is the letter by which Sheriff Livingston fired Horner. (See Finding 44) . g. (1) The letter states that Sheriff Livingston was informed that Horner openly objected to working with a female deputy sheriff. (2) Horner acknowledged that he did make comments and request not to work with the female deputy sheriff. Horner was reinstated to County employment as a result of grievance proceedings in which the County did not support Sheriff Livingston's firing of Horner. 29. Richard E. Behne, Jr. (Behne) has been a Dauphin County Deputy Sheriff since 1992. a. In 1995, during the course of his employment with the Dauphin County Sheriff's Department, Behne was asked to participate in campaign activities for Gerald Livingston. (1) Behne was asked by both William Livingston and by Gerald Livingston to purchase a ticket for the pig roast. (a) Sheriff William Livingston made a comment to Behne to the effect that if Behne didn't buy a ticket, he wouldn't have a job there next year. (2) On more than one occasion, Behne was asked by Sheriff William Livingston to put a bumper sticker for Gerald Livingston's campaign on Behne's personal vehicle. (3) Behne memorialized these events as soon as they occurred. Livingston, 95- 036 -C2 Page 9 (4) Behne's typed notations of these events are in evidence as ID -6 and are detailed at Finding 39. (a) Behne testified that each event occurred as recorded in his notes. (b) Each of the incidents occurred in the Sheriff's Office on a work day. (c) Deputies Tony Clements and Mike Bowser were witnesses to the incident recorded at ID -6, page 1. b. Behne was one of the six individuals who signed a letter of complaint against Sheriff William Livingston. c. Sheriff William Livingston revoked Behne's appointment as a Deputy Sheriff in 1995. d. R -5 is the letter by which Sheriff William Livingston fired Behne (see, Finding 46). (1) With regard to the reprimand referenced in the letter, Behne stated that Behne and Deputy Clements were told by Sheriff Livingston to sign a paper relative to an incident regarding alleged removal of ammunition, but that the alleged incident did not occur. (2) Behne stated that nothing in the letter was true except for the fact that Sheriff Livingston revoked his appointment. e. Behne was reappointed as a Deputy Sheriff in 1996. 30. Anthony Clements (Clements) is presently employed as a patrolman by the Susquehanna Regional Police Department in Lancaster County, Pennsylvania. a. At all times relevant to this case, Clements was employed as a Deputy Sheriff in the Dauphin County Sheriff's Department. (1) Clements was so employed for approximately four years, including both part-time and full -time employment. b. During Gerald Livingston's campaign for Sheriff, Clements was approached and was asked to participate in Gerald Livingston's campaign - related activities. (1) Clements was asked by both Sheriff William Livingston and by Gerald Livingston to purchase a ticket or attend the campaign fund raiser held at the Arches Restaurant. (a) Clements recalled that Sheriff Livingston asked him on a daily basis whether he had bought a ticket to the fund raiser. Livingston, 95- 036 -C2 Page 10 (b) At the time Clements was asked to purchase the ticket, Sheriff Livingston stated that "some deputies better start buying these tickets or they are going to be out of a job." (Tr. at 57). [1] Sheriff Livingston appeared to Clements to be serious when he made this statement. [2] Clements believed that he would not have a job if he didn't purchase a ticket to the fund raiser. (c) Clements purchased a ticket and attended the fund raiser. (2) On a different occasion, Sheriff William Livingston approached Clements and told Clements that he had better buy a ticket to Gerald Livingston's campaign event held at the Londonderry Fire Company. (a) Sheriff Livingston indicated that not only Clements but other deputies would be out of a job if they didn't start purchasing the tickets. (3) Clements was questioned by Sheriff Livingston as to why he had not attended a free campaign event that Clements recalled had been held at a VFW or Legion. (4) Sheriff Livingston asked Clements if he had a bumper sticker for Gerald Livingston on his car. (a) When Clements responded in the negative, Sheriff Livingston handed Clements a bumper sticker and told him to put it on. c. Clements witnessed the event to which Richard Behne testified involving bumper stickers (See, Findings 29a(4); 39a). (1) Clements heard Sheriff Livingston call Behne over and ask him a question concerning bumper stickers. (2) When Behne said he did not have a bumper sticker, the Sheriff became loud and stated that he would check on Behne's car. (3) Clements stated that when Behne said "That's not right," Sheriff Livingston "continued to be boisterous and swear." (Tr. at 60). (4) Clements believed that Sheriff Livingston did tell Behne that if Behne did not do as he was told regarding the bumper sticker, he would be fired. d. Clements recalled an occasion when Gerald Livingston was upset because none of the deputies were attending his campaign meetings at his residence. Livincaston, 95- 036 -C2 Page 11 (1) Gerald Livingston came into the office and told Clements that Clements was to attend a "mandatory" campaign meeting at Gerald Livingston's residence. e. ID -7 consists of Clement's own, handwritten notes by which he recorded incidents related to this matter (see, Finding 40). (1) The notes were written soon after the depicted incidents occurred. (2) ID -7, page 1, front, is Clements' record of an incident that occurred on May 17,1995 which he witnessed, when Sheriff Livingston was talking in the Sheriff's Office to Assistant Chief Mike Rinehart regarding Deputy Sheriff Marcial DeJesus (see, Finding 40a). (3) ID -7, page 1, back, and page 3, front (See, Findings 40b,e), is Clements' record of the incident which occurred on May 8 or May 9, to which Behne testified, when Sheriff Livingston told Behne to put a bumper sticker on his (Behne's) car or be fired. (See, Finding 39a). (a) Clement stated the he wrote the notation, "Put it on or I'll fire your fuckin ass" practically while Sheriff Livingston was saying it to Richard Behne in the Sheriff's Office. (4) ID -7, page 2, back, top half, is Clements' record of an incident which occurred on May 11, 1995 at 8:26 a.m. (see, Finding 40c). (5) ID -7, page 2, back, bottom half, under the solid line (See, Finding 40d), is Clements' record of an incident which occurred on the same morning as the incident when Sheriff Livingston told Behne to put a bumper sticker for Gerald Livingston on Behne's personal car. (a) On the same morning as the incident involving Behne, Sheriff Livingston told Clements to put a bumper sticker for Gerald Livingston's campaign on his (Clements') car or Clements would be on Sheriff Livingston's "shit list." (Tr. at 64). (6) ID -7, page 3, back, before the slash ( " / "), is Clements' record of an incident which Clements witnessed (See, Finding 40f). (a) Sheriff Livingston was talking to another man at the counter in the Sheriff's Office. (b) After the other man left, Sheriff Livingston came into the Assistant Chief's and Chief Deputy's Office and said that the man belonged to a gun club with Pat (a Deputy Sheriff in the Dauphin County Sheriff's Office), and that Pat was supporting Faiola, who was Gerald Livingston's opposition in the election for Sheriff. Livinaston, 95- 036 -C2 Page 12 (c) Sheriff Livingston stated: Pat's supporting Faiola. I don't understand these guys biting the hand that feeds them. I am going to have to fire some guys before the election. (7) ID -7, page 3, back, bottom, after the slash ( "1 "), is Clements' record of Gerald Livingston's instructions to Clements to tell all the deputies about a mandatory campaign meeting (see, Finding 40g). (a) Gerald Livingston stated, "We'll see who shows up and who wants to keep their job." (Tr. at 67). (8) ID -7, page 4, front and back, is Clements' record of June 26, 1995, 11:33 a.m., regarding an incident where Sheriff Livingston called Clements into his office and questioned him regarding his signing, together with five other people, a complaint against Sheriff Livingston. (a) The complaint was in relation to actions by the Sheriff which are involved in this case. (b) The complaint was filed with John Cherry, District Attorney of Dauphin County and was then forwarded to the Attorney General's Office. (c) Sheriff Livingston stated to Clements that he didn't have anyone check their cars for bumper stickers — he checked them himself. (d) Sheriff Livingston stated to Clements: Well 1 have a surprise coming up for you guys and you won't like it. There may be six jobs opening up here shortly. (Tr. at 69 -70). (e) Kathy Walt then entered the office and Sheriff Livingston stated to her, "1 don't know what they hoped to gain by signing that complaint." (Tr. at 73). f. Clements was not discharged by Sheriff Livingston. 31. Michael W. Rinehart (Rinehart) is employed as an Assistant Chief Deputy in the Dauphin County Sheriff's Department, having served in that capacity since approximately February, 1994. a. Before he became an Assistant Chief Deputy, Rinehart was a Deputy Sheriff in the Dauphin County Sheriff's Department, commencing February 1, 1983 on a part -time basis and commencing September, 1983 on a full -time basis. Livingston, 95- 036 -C2 Page 13 b. Gerald Livingston was one step above Rinehart in the chain of command. c. Rinehart testified that Gerald Livingston reported to Chief Deputy Carmen Henderson, who was second in command in the Sheriff's Office. d. Although Gerald Livingston asked Rinehart to participate in his campaign - related activities, Rinehart stated that he could not recall Sheriff William Livingston asking him to do so. e. Rinehart heard Sheriff William Livingston making a comment, which Rinehart stated was made in an open room to whoever was in the office, that "You know who's going to be here next year so you may as well support Jerry." (Tr. at 79 -80). f. Rinehart heard Sheriff Livingston comment to individuals regarding the purchase of tickets for Gerald Livingston's events as follows: "Why aren't you guys supporting Jerry. You know who's going to be the Sheriff next year." (Tr. at 80). Rinehart stated that he did not ever hear comments by Sheriff Livingston regarding removing deputies from the list for training relative to Gerald Livingston's campaign activities. 32. Robert Caruso is employed by the State Ethics Commission as its Deputy Executive Director /Director of Investigations. g. a. This case was initiated through the "own motion" procedure based upon a referral received from the Office of Attorney General. b. The initiation of a preliminary inquiry in this case was authorized on May 16, 1995 (ID -1). c. The preliminary inquiry was completed within 60 days as required. d. The initiation of a full investigation in this matter was authorized on July 13, 1995 (ID -2). e. A notice of investigation letter dated July 14, 1995 (ID -3) was issued to William Livingston. f. Periodic letters were issued to the Respondent in this case, updating the general status of the investigation. The Investigative Complaint was issued on July 5, 1996, within 360 days of the initiation of the full investigation in this case. h. It is the Investigative Division's position that the private pecuniary benefit to Sheriff Livingston's son, Gerald Livingston, had he been elected Sheriff, would have been the increase in salary as Sheriff from what he had been making in his former position (Tr. at 95 -96). 33. John Weaver (Weaver) is employed by the Dauphin County Sheriff's Department as a Corporal. g. Livingston, 95- 036 -C2 Page 14 a. Weaver has been employed by the Dauphin County Sheriff's Department on a full -time basis for 13'/h years, and on a part -time basis for 7 years. b. During Gerald Livingston's campaign for the office of Sheriff of Dauphin County, Weaver was approached by both Gerald Livingston and Sheriff William Livingston to participate in election related activities or campaign related activities on Gerald Livingston's behalf. (1) Weaver testified as follows: A Well, probably a few months before the election we were asked to put posters in our front lawns and to attend some dinners. Q Who would have made these requests? A They came from Jerry and from his father. Q And his father would be William Livingston, the sheriff? A Right. (Tr. at 101 -102) . (2) Sheriff William Livingston specifically asked Weaver to put campaign posters in Weaver's front lawn. (3) Sheriff Livingston indicated to Weaver that tickets were available for sale for dinners for Gerald Livingston. (4) Sheriff Livingston asked Weaver to take a bumper sticker for Gerald Livingston's campaign for Weaver's car. (a) Weaver took the bumper sticker. (b) Weaver testified as follows: Q Were you advised as to whether he [Sheriff Livingston] was going to take any action in relation to those bumper stickers? A The bumper sticker, it was said there's a good chance I would be looking for another job. Q Who indicated that to you, sir? A The sheriff. Q That's Mr. William Livingston? A That's correct. Livingston, 95- 036 -C2 Page 15 (Tr. at 103 -104) . (5) On several occasions, Weaver heard Sheriff William Livingston state, both to individuals and to groups of individuals employed at the Sheriff's Department, that if they didn't support Gerald Livingston in his campaign for Sheriff they could be looking for other jobs. (a) Sheriff Livingston appeared to Weaver to be serious in making such comments. (6) Weaver was concerned that if he did not act as requested, he could be hindering his employment situation. 34. David P. Miller (Miller) has been employed in the Dauphin County Sheriff's Department for 19 years consecutively. a. Prior to the May, 1995 primary election, Sheriff William Livingston asked Miller to drive him (Sheriff Livingston) around a particular parking lot "to see bumper stickers." (Tr. at 1 1 1). (1) Sheriff Livingston indicated that he wanted to see if there were bumper stickers for Gerald Livingston's campaign on cars. (2) Miller drove Sheriff Livingston through the parking lot which was on South Second Street. (3) Miller drove through the parking lot slowly. (4) The deputies park their personal vehicles in that parking lot, as do hospital employees. (5) The trip was made in the Sheriff's car, not a personal car, and it occurred during the normal working hours of the Sheriff's Department. b. Sheriff William Livingston also asked Miller if he (Miller) had a bumper sticker for Gerald Livingston's campaign. 35. , Richard Shroy (Shroy) is employed by the Dauphin County Sheriff's Office as a Deputy Sheriff, having been so employed for approximately 8 years. a. In 1995, during the course of his employment with the Dauphin County Sheriff's Department, Shroy was asked to take part in campaign - related activities for Gerald Livingston including hanging up signs, taking out his literature, going door to door, buying tickets to fundraisers, and putting a bumper sticker on his car. b. Shroy bought tickets to the fund raisers. (1) Shroy bought tickets to at least two of the fund raisers, at a cost of $20 each. Livingston, 95- 036 -C2 Page 16 (2) Shroy stated that "everybody else" was under pressure to buy the tickets to the fund raisers, by statements that if they didn't start buying, people wouldn't be around after the election. c. Shroy testified to being told in the office by Mike Rinehart or Henderson of mandatory campaign meetings at Gerald Livingston's house. d. Shroy testified that there were comments made about who was on the "hit list" and what employees were "dead weight" and who he (Sheriff Livingston) thought his son should "get rid of" or was going to "get rid of." (Tr. at 117). e. After being informed that there was a "hit list" and that there were certain deputies that were going to be fired after the election, Shroy and others in the Dauphin County Sheriff's Department acted upon advice that they received to document the statements that were being made, before the election. f. Sheriff William Livingston handed Shroy a bumper sticker relating to Gerald Livingston's campaign for Sheriff and told Shroy to put it on. (1) Shroy took the bumper sticker. (2) Shroy testified that shortly thereafter, Sheriff Livingston commented "That if we didn't support Jerry, he would get rid of some of his dead weight around here." (Tr. at 117). (3) The day after Shroy received the bumper sticker, Sheriff William Livingston sent for Shroy and questioned him in the office. (a) Shroy testified as follows: A He asked me about am I going to put the bumper sticker on or ain't I. I said no. And then he asked me if I was going to vote for his son. Q Were you -- g. A I told him. Q Was there any comments made to you? A He told me, you know, I have you written up three times, I said I guess. Then just leaned back in his chair and he said, get the fuck out of here and get some work done. (Tr. at 119). Shroy personally heard Sheriff William Livingston make comments to other deputies about their employment situation with the Sheriff's Department. Livinaston, 95- 036 -C2 Page 17 (1) Shroy testified that Sheriff William Livingston made a statement to Gerald Livingston, in front of Shroy, to the effect, "I don't believe you are going to need DeJesus around. He's working with the Faiola Committee." (Tr. at 120). (a) Marcial DeJesus was a deputy in the Dauphin County Sheriff's Department. (b) Herman Faiola was running against Gerald Livingston for Sheriff of Dauphin County. (2) Sheriff William Livingston asked individuals to participate in campaign related activities under the threat of losing their jobs. (3) Sheriff William Livingston made a comment about wanting to see "a hundred percent" of the deputies at a certain election function. (4) Sheriff William Livingston questioned deputies who did not attend Gerald Livingston's functions as to why they did not attend. (5) Comments were made about things changing after the election and about getting rid of the dead weight deputies. (6) Shroy testified that Sheriff William Livingston made comments almost on a daily basis, and that Sheriff Livingston's comments gave Shroy the impression that if Shroy did not participate in the campaign activities that Shroy would be terminated. h. Sheriff William Livingston tried — unsuccessfully — to suspend, and later to fire, Shroy. (1) R -4 is the letter dated July 13, 1995 by which Shroy was "fired" (see, Finding 45). (2) The County did not uphold the firing. 36. Marcia) DeJesus (DeJesus) is employed by the Dauphin County Sheriff's Office, having been so employed for approximately 20 years. a. DeJesus was approached regarding participating in campaign activities for Gerald Livingston. (1) Sheriff William Livingston asked DeJesus why he did not attend a fund raiser. (a) DeJesus responded that no one offered him any tickets. (2) DeJesus subsequently bought a ticket to the pig roast fund raiser when Gerald Livingston handed him a ticket. (a) The purchase price of the ticket was 820. Livingston, 95- 036 -C2 Page 18 b. Nothing was said directly to DeJesus threatening his job for not participating in activities, but he did hear rumors that Gerald Livingston said he was the first one on the list to be fired. c. DeJesus witnessed an incident where Sheriff William Livingston told a deputy to put a bumper sticker on if he wanted a day off. d. DeJesus witnessed Sheriff Livingston asking Pat Horner if he would buy a ticket. (1) DeJesus stated that Horner said "No," and Gerald Livingston said, "I don't think he wants his job." (Tr. at 138). e. On one occasion, DeJesus made a statement that Gerald Livingston was going to have a hard time because Herm Faiola was very popular and everybody supported him. (1) Gerald Livingston came in the office and said "Nobody's going to beat me. I am going to be Sheriff." (Tr. at 138). (2) The following day, the Sheriff came in the office and told DeJesus that if DeJesus voted for Faiola, he (Sheriff Livingston) would fire DeJesus (Tr. at 138 -139). f. DeJesus stated that Sheriff Livingston asked him (nicely) about putting Gerald Livingston's bumper sticker on his car (Tr. at 140). DeJesus was one of the six individuals to sign a complaint against Sheriff William Livingston. g. 37. William H. Livingston is the former Sheriff of Dauphin County. a. William Livingston's father, Harvey Livingston, was previously the elected Sheriff of Dauphin County. b. Former Sheriff William Livingston testified to the following: (1) That he did not use his office to promote his son's candidacy (Tr. at 147); (2) That he did not know when his son was having fund raisers, although he went to every one of them (Tr. at 147); (3) That he never gave any bumper stickers in the office, and that they never kept any bumper stickers or signs in the office (Tr. at 147); (4) That he never sold any tickets for Gerald Livingston in the Sheriff's Office (Tr. at 147); (5) That he never threatened to fire people for not buying tickets and was never present when his son might have made such threats to fire people for not buying tickets (Tr. at 147 -148); Livinaston, 95- 036 -C2 Page 19 (6) That he was not sure whether he ever asked former Deputy Sheriff Patrick Horner if he purchased a ticket to any fund raiser (Tr. at 148); (7) That he did not tell Horner that some of the deputies would be out of work after the May primary election (Tr. at 148); (8) As to a conversation with Horner, that he did not recall having Horner in the office (Tr. at 148 -149); (9) That he did ask a few people to put up campaign signs for his son, that he was not sure which ones, and that he did not ask in the immediate office but usually in the hallway, or somewhere in the Courthouse (Tr. at 149); (10) That he did not recall asking any specific deputy but that it was possible that he asked people if they were going to vote for his son or Faiola (Tr. at 149); (1 1) That he never required Deputy Sheriffs to attend meetings at his son's home, and that he never knew when his son was having them (Tr. at 149); (12) That he never asked Shroy to put a sign in his yard, but that he did not know if he said anything to Shroy about a bumper sticker (Tr. at 150); (13) That he might have asked Shroy to vote for Gerald Livingston, but that he didn't threaten Shroy (Tr. at 150); (14) That he did not tell Clements he would be out of a job if he didn't purchase a ticket (Tr. at 151); (15) That he did not recall whether he ever threatened Clements for missing any fund raising event (Tr. at 151); (16) That he did not tell Behne that Behne was going to be fired after Behne told Gerald Livingston that he, Behne, wasn't interested in buying any tickets (Tr. at 151 -152); (17) That he might have made the statement to Clements that he didn't understand these guys and that they were biting the hand that feeds them (Tr. at 152); (18) That he did not fire Clements [sic], Behne, Horner, and Shroy because they did not support his son, but that he was instructed by his Solicitor not to fire anybody without cause, and that he was satisfied that he had cause with respect to each of them (Tr. at 153); (19) That Patrick Horner's testimony that Sheriff Livingston told him he'd better buy a pig roast ticket or he wouldn't have a job was wrong (Tr. at 154 -155); Livingston, 95- 036 -C2 Page 20 C. Documents (20) That Richard Behne was maybe "hallucinating or something" as to Behne's testimony that he (Sheriff Livingston) told Behne that if Behne didn't put a bumper sticker on Behne's car, he (Sheriff Livingston) would fire Behne (Tr. at 155); (a) That he (Sheriff Livingston) told Behne many times that he was going to fire Behne because Behne wasn't doing the job (Tr. at 155); (21) That David Miller was wrong in saying that he (Miller) drove Sheriff Livingston down to the parking lot to check bumper stickers, and that he (Sheriff Livingston) drove himself down (Tr. at 156); (a) In response to the question, "Did you check bumper stickers ?" that "I was just checking on cars, anything, I don't know whether it was a bumper sticker or — but I drove down." (Tr. at 156); (22) That he did not think he would have said to Marcial DeJesus that he would fire DeJesus if he voted for Faiola (Tr. at 156); (23) That Shroy was wrong in his testimony that Shroy heard Sheriff Livingston make statements that he would fire the deputies for not purchasing tickets to his son's fund raiser and for not putting on bumper stickers (Tr. at 157); (24) As to Weaver's testimony, that he (William Livingston) did not recollect saying to anybody that if they didn't support his son's campaign, they would be fired (Tr. at 157). 38. ID -5 consists of campaign - related reports of the "Livingston for Sheriff Committee" filed with the Dauphin County Election Bureau for Gerald Livingston's 1995 campaign for the office of Sheriff of Dauphin County. a. The Political Committee Registration Statement was filed January 9, 1995. 39. ID -6 consists of Richard Behne's notations by which he memorialized certain conversations with Sheriff William Livingston (see, Finding 29a). a. ID -6, page 1 states as follows: On May the 5th 1995 around 0800 hours upon entering the Sheriff's Office. Sheriff William H. Livingston said to myself, Deputy Behne; "Just the persona I wanted to see. I walked over to the Sheriff and said, "Yes boss, what do you need." The Sheriff then ask if I had a bumper sticker on my car, "Jerry Livingston for Sheriff." I said, "No I do not." The Sheriff then ask if I would put one on my car. I said, "I guess so ". The Sheriff then said, "because you know I will check ". I then replied, "That isn't right ". The Sheriff then said, "I'II tell you what an't fuckin right, if Livingston, 95- 036 -C2 Page 21 you don't put a bumper sticker on your car, I'II fire your fuckin ass ". As I was walking away with a Jerry Livingston for Sheriff bumper sticker in my hand I could here the Sheriff saying something about the young guys think they can buck the system, and something about that man gave you that job. Richard G. Behne Jr. Witness #1: Tony Clements Witness #2: Mike Bowser b. ID -6, page 2 states as follows: On May the 9th of 1995 at around 1255 hrs. myself Deputy Behne, and Deputy Bowser arrived at the Sheriff's Office. I was told by Asst. Chief Deputy Rinehart to go see the Sheriff in his office. As soon as I stepped in William H. Livingston's office, the Sheriff ask me what the fuck are you three guy's gettin a private attorney for. I replied I do not know what your talkin about. The Sheriff then said yes you do. Then I was asked why are you guy's trying to bring this office down, I replied I do not know what your talkin about. The Sheriff then said I went down to your car, and you still don't have that bumper sticker on your car. I replied I don't have time. The Sheriff then said you guy's got an attorney so I couldn't fire your asses. Then said well I'm not gonna fire you yet but after the election I'm gonna fire your ass. The Sheriff then said get your fuckin work and get the fuck out of my office. I said yes sir and left the office. Upon walking out the door the Sheriff said and get some work done. Let it be known that I have always completed my work, and do a fine job as a deputy sheriff. Richard G. Behne Jr. c. ID -6, page 3 states as follows: On the morning of May 9th 1995 at around 0810 hrs., myself Deputy Behne arrived at the Sheriff's Office for work. Upon my arrival I ask Asst. Chief Deputy Rinehart if I could take a vacation day on this Friday, meaning May the 12th of 1995. Deputy Rinehart instructed me to go fill out a request form. I filled out a request form and gave it to Deputy Rinehart. Deputy Rinehart in return gave it back to me and told me to give it to the Sheriff myself. I walked over to the Sheriff's office and gave it to the Sheriff. The Sheriff read it and said you gotta give me a week's notice. I said okay, I'll take one some other day and started to walk off. As I began to walk away the Sheriff said do you want to take Friday off, and I said yes I do. The Sheriff then asked did you put that bumper sticker on your car. I replied yes I did, and he said then you can have Friday off. I said thank you Sheriff and walked out of the office. P.S. - I did not put a sticker on my car! Richard G. Behne Jr. 40. ID -7 consists of Anthony Clements' notes by which he recorded certain incidents involving Sheriff Livingston. a. ID -7, page 1, front, states: Livinaston, 95- 036 -C2 Page 22 5/17/95 8:25 AM I wish I could cancel that school for the Deputies. Mike - You can't. Mike read the Deputies names scheduled to go to recert Marcel Why the fuck am I training Marcel? b. ID -7, page 1, back, states: Put it on or I'II fire your fuckin ass. c. ID -7, page 2, back, top half, states: 5/11/95 8:26 AM Sheriff asked me if I had a key to munitions room I responded "No" He said because we have ammo missing d. ID -7, page 2, back, bottom half, under the solid line, states: [Illegible word] Bumper Sticker or shit list /Behne or fired e. ID -7, page 3, front, states: May 9, 8:05 You know I'II check for it. That ain't right. 191 tell you what ain't fuckin right. If you don't put a bumper sticker on your car I fire your fuckin ass. f. ID -7, page 3, back, before the slash ( " / ") states: You know who that guy was gun club w /Horner Pat supporting Fiaola Don't understand these guys Biting hand that feeds them Im going to have to fire some guys before the election ID -7, page 3, back, bottom, after the slash ( "/ ") states: Jerry - mandatory campaign meeting tonight tell all the deputies well see who shows up and who Livingston, 95- 036 -C2 Page 23 wants to keep their job h. ID -7, page 4, front and back, states: 6/26/95 11:33 AM Sheriff called me into his office asked me "what the fuck did you hope to gain by signing that complaint? I did not answer. He then stated I didn't have anyone check your cars for bumper stickers. I checked them myself. I did not respond. The Sheriff then stated Well I have a surprise coming up for you guys and you won't like it. There may be 6 jobs opening up here shortly. K. Walt then entered the office and he stated to her. I don't know what they hoped to gain by signing that complaint. 41. ID -8 is a handwritten note by Patrick Horner dated April 17, 1995, memorializing a conversation initiated that day by Sheriff William Livingston, regarding Horner's participation at fund raisers for Gerald Livingston's campaign (see Findings 28c(4), (5)). a. The note states: 4 -17 -95 - ? 1st Monday after 8:25/am VFW Party on Sat. Comment Sheriff & Jerry made to me, Sheriff said: why weren't you at the party at the fire hall on Thurs. night. I said I didn't know anything about it until the day of and by that time I had other plans. He (the Sheriff) then said, what about the free one at the VFW. I said I didn't know anything about it. He then said: Well you better buy a pig roast ticket or you won't have a job! Jerry then said: Yeah Pop, He doesn't want his job if he Livingston, 95- 036 -C2 Page 24 doesn't buy a ticket. (Shroy, DeJesus, Behne Clements, Weaver) 42. ID -9 is a wage statement dated August 6, 1996, from O.J. Hannah, the Deputy Personnel Director of Dauphin County, indicating the current salary of present Sheriff Jack Lotwick and the former salary of Gerald Livingston as First Deputy. a. The present Dauphin County Sheriff earns $25.32 hourly . and $46,082.00 annually. b. The former salary of Gerald Livingston as First Deputy was $18.90 hourly and $34,398.00 annually. 43. ID -10 is a certified list of the employees, both full and part time, employed in the Dauphin County Sheriff's Department. a. The list is not dated. 44. R -2 is the letter by which Sheriff Livingston fired Patrick Horner (see Finding 28h). (1) The letter is dated August 10, 1995. (2) The letter states: Mr. Patrick Horner Dear Mr. Horner: I've been informed that you openly objected to working with a female deputy sheriff. As an elected county official, I cannot tolerate such conduct. Under the Act of August 5, 1955 P.L. 323, Sections 1203 and 1205, I revoke your appointment as Deputy Sheriff, effective tomorrow. a. The letter is dated July 13, 1995. Very truly yours, William H. Livingston, High Sheriff of Dauphin County 45. R -4 is the letter by which Sheriff William Livingston fired Richard E. Shroy (see, Finding 35h). b. The letter states: Dear Mr. Shroy: When I received word of your vocal complaint to my son about being nominated for a certain negative award, I was told by my Solicitor Livingston, 95- 036 -C2 Page 25 that my only real remedy if I wanted to take disciplinary action was to fire you. Instead of firing you, I only suspended you and the Commissioners have just overturned that suspension. Accordingly, in accordance with the Act of August 5, 1995, P.L. 323 Sections 1203 and 1205 I revoke your appointment as Deputy Sheriff effective today. Very truly yours, Dated: July 13, 1995 William H. Livingston, High Sheriff of Dauphin County 46. R -5 is the letter by which Sheriff Livingston fired Richard Behne (See, Finding 29d). a. The letter is dated August 10, 1995. b. The letter states: Mr. Richard Behne Dear Mr. Behne: Under date of September 26, 1994, I gave you a letter of reprimand because of your conduct on September 9, 1994, at the H.A.C.C. Public Safety Institute Range, where you were observed taking unauthorized ammunition from the vehicle that served as ordinance storage, and I warned you that any future violations of department regulations or county code would result in immediate dismissal. Under date of October 4, 1994, you acknowledged receipt of the reprimand. I have, this month, been made aware that you initiated some harassment directed to another Deputy Sheriff, in that you requested Officer Trite of the Dauphin Boro Police to file a written complaint against a Deputy, and I am referring to Tim Quigley. I am also informed that, in the company of Richard Shroy, you gloated over the aggravation that you caused Deputy Sheriff Tim Quigley. Taking the above matters in consideration and the power granted to me by the Act of August 5, 1955 P.L. 323 §1203 and § 1205, I hereby revoke your appointment as Deputy Sheriff, effective tomorrow. Very truly yours, William H. Livingston, High Sheriff of Dauphin County Livinaston, 95- 036 -C2 Page 26 III. DISCUSSION: At all times relevant to this matter, the Respondent, William Livingston, was 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, gt sea. The Respondent is the former Sheriff of Dauphin County. All references in this adjudication to "Sheriff Livingston" and "former Sheriff Livingston" are to the Respondent, William Livingston, although it is noted that Respondent's father, Harvey Livingston, was the Sheriff of Dauphin County before William Livingston assumed that office. We initially note and state "for the record" that certain language which is generally regarded as offensive appears within this adjudication, in the context of evidence as to statements made by Sheriff Livingston. While we recognize such language to be inappropriate and distasteful, we have not altered it herein in the interests of accuracy in this case where the spoken word has legal significance. The issue before us is whether William Livingston, in his former capacity as Sheriff of Dauphin County, violated Sections 3(a) and 3(c) of the Ethics Law when he used the authority of his office for the private pecuniary benefit of a member of his immediate family — his son, Gerald Livingston — by directing and /or soliciting deputy sheriffs to purchase tickets to fundraisers, display campaign posters, distribute . campaign literature and engage in other related activities in relation to his son's candidacy for county sheriff based upon an understanding that their continued employment would be affected thereby. Pursuant to Section 3(a) of the Ethics Law quoted in Section I 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 set forth in Section I above. Section 3(c) of Act 9 of 1989 quoted in Section I above, provides in part that a public official /public employee shall not solicit or accept anything of monetary value based upon any understanding that his vote, official action or judgment would be influenced thereby. We initially address the legal arguments which Respondent has raised in his Motion to Dismiss. Respondent argues: that the Complaint must contain sufficient information and be within the Commission's jurisdiction; that the Complaint was not sworn or verified; that any alleged violation of the Act would have no greater than a de minimis economic impact; that there was no alleged economic impact in favor of William Livingston; and that there was no Toss to the three deputies that Sheriff Livingston fired (see, Motion to Dismiss; see also, Tr. at 10, 158 -159). We deny the Motion to Dismiss. First, our review of the Complaint is that it does aver information sufficient to make out a case under Sections 3(a) and 3(c) of the Ethics Law. Second, there is no requirement under the Ethics Law or the Regulations of this Commission that an Investigative Complaint be sworn or verified, and in any event, the findings of this Commission are based upon the parties' admissions and stipulations and the evidence adduced at hearing, which consists of sworn testimony, official records, and the like. Third, for the reasons set forth below in our review of the merits of this case, we find that the sought -after private pecuniary benefit for Livingston, 95- 036 -C2 Page 27 William Livingston's son, Gerald Livingston, was greater than de minimis. A private pecuniary benefit to Gerald Livingston, a member of William Livingston's immediate family, is sufficient to establish the element of a private pecuniary benefit for finding a violation of Section 3(a) by William Livingston. Neither a private pecuniary benefit to William Livingston himself nor any "detriment" to employees in the Sheriff's Department is required. As for Section 3(c), the elements for a violation do not include a private pecuniary benefit or a financial detriment. Having dispelled the legal arguments which Respondent has raised, we shall now review the material facts. William Livingston served as Sheriff of Dauphin County from January of 1976 to December of 1995. Upon taking office as Sheriff, William Livingston hired his son, Gerald Livingston, to work in the Dauphin County Sheriff's Office as a part-time Deputy Sheriff. William Livingston later appointed Gerald Livingston a full -time Deputy and ultimately promoted him to Assistant Chief Deputy Sheriff such that he was above the Deputy Sheriffs and the other Assistant Chief Deputy Sheriff, Michael Rinehart, in the chain of command. In January of 1995, as William Livingston was completing his final year in office, Gerald Livingston sought the Republican nomination for the Office of Dauphin County Sheriff. Various fund raisers were held for Gerald Livingston's campaign, including a kick -off event at the Arches Restaurant on Front Street in Harrisburg, a pig roast in Carsonville, a fund raiser at the Londonderry Fire Hall, and a fund raiser at a VFW or Legion. Tickets to the fund raisers for Gerald Livingston were sold to Deputies in the offices of the Dauphin County Sheriff's Department. Ticket sales were arranged by Gerald Livingston. Gerald Livingston gave Assistant Chief Deputy Thomas Quigley tickets to sell. Real Estate Deputy Catherine Walt was given tickets by Gerald Livingston to distribute to employees who had previously agreed to make purchases. This occurred in the Sheriff's Office during the business hours. Sheriff William Livingston was aware of and condoned the actions of Gerald Livingston in making and arranging the sale of fund raiser tickets. Employees of the Dauphin County Sheriff's Office also contributed to Gerald Livingston's campaign committee. Solicitations made by Gerald Livingston were done with the knowledge and consent of William Livingston. Meanwhile, Sheriff Livingston himself allegedly engaged in coercing various Deputies to participate in and contribute to Gerald Livingston's campaign. By law, the Respondent as Sheriff had the authority to hire and fire the Deputies in his employ. On or about May 10, 1995, six Deputies from the Dauphin County Sheriff's Department — specifically, Patrick Horner, Richard Behne, Anthony Clements, John Weaver, Richard Shroy, and Marcia) DeJesus — sent a letter to the District Attorney of Dauphin County complaining of the actions of Sheriff William Livingston and Gerald Livingston as follows: (1) Any full time deputy who did not attend campaign meetings would be fired. (2) If we did not buy "Pig Roast" picnic tickets, we would be fired. (3) If we did not have "Jerry Livingston for Sheriff" signs on display in our yards, we would be fired. Livinaston, 95- 036 -C2 Page 28 (4) If we did not place "Livingston" bumper stickers on our personal vehicles, we would be fired. (5) Conditioning permission to take a vacation day on agreement to display "Livingston" bumper stickers on personal vehicles. (6) Openly being asked "who are you going to vote for ?" (7) Statements that "you are being watched on and off duty. (8) Having a deputy drive the Sheriff to the parking lot where deputies park their vehicles so "he could see if they have a bumper sticker on their vehicle." (9) Having part -time deputies check the parking garage to count vehicles with bumper stickers. (10) Having one of us do political activities for the campaign, while on duty and in a marked "Sheriff "vehicle. The Deputies' letter was forwarded by the District Attorney's Office to the Office of Attorney General. This case was subsequently referred to this Commission by the Office of Attorney General. The Respondent received a copy of the Deputies' letter on May 10, 1996 — just before the May 16, 1995 primary. The day after he received the letter, the Respondent made a statement to the Deputies about having to "keep his cool," but later, in July and August, 1995, he fired three of the Deputies who had signed the complaint: Deputies Behne, Horner, and Shroy. The Respondent maintained that he had just cause for terminating these Deputies. However, the firings were overturned following grievance hearings in which the County determined that the terminations were not justified. All six of the Deputies who complained to the District Attorney testified at the hearing before this Commission. Patrick Horner testified that on April 17, 1995, shortly after the "fire hall" fund raiser had been held and six days before the "pig roast" fund raiser was to be held, Sheriff William Livingston approached Horner in the Sheriff's Office during the course of a normal working day and asked Horner why Horner had not attended the prior fund raiser at the fire hall. Horner told Sheriff Livingston that he did not know anything about the fire hall fund raiser until the day of the event and that he had a prior engagement. Sheriff Livingston then questioned Horner about the VFW fund raiser, whereupon Horner responded that he didn't know about it. Horner testified, "[Sheriff William Livingston] said then, you'd better buy a ticket to the pig roast or you won't have a job." Sheriff Livingston appeared to Horner to be serious when he made these comments to Horner. Horner felt that if he didn't buy a pig roast ticket, he would be out of a job. Horner bought a ticket for $20, although he did not attend the pig roast. Horner memorialized this event by writing it down on a piece of paper, which is in evidence as ID -8, within approximately ten minutes after the incident occurred (see Finding 41). Horner listed as witnesses to the event the five other deputies who ultimately filed the complaint with the District Attorney. Livingston, 95- 036 -C2 Page 29 Approximately 1 -2 weeks after the i roast fund raiser, 9 , Horner was asked by Sheriff William Livingston to place a campaign bumper sticker for the Gerald Livingston for Sheriff campaign on Horner's personal vehicle. Horner recalled that the Sheriff stated to him, "You are going to put a bumper sticker on your car, aren't you." (Tr. at 23). Horner testified, "It was one of those questions where it wasn't really a question. It was a statement that you are going to do it, type of statement, whether you like it or not." ICI This incident took place within the Sheriff's Department during the course of a normal working day. Horner witnessed Sheriff Livingston making comments to other employees of the Sheriff's Department, by which comments Sheriff Livingston requested that such individuals participate in Gerald Livingston's campaign related activity. These comments were made in the Sheriff's Department during normal working days. Prior to the primary election, Horner overheard frequent statements made by Sheriff William Livingston to other deputies in the Sheriff's Department during normal working days "that they'd better put up campaign signs if they want a job." (Tr. at 24). Deputy Richard Behne testified that in 1995, during the course of his employment with the Dauphin County Sheriff's Department, he was asked to participate in campaign activities for Gerald Livingston. Behne was asked by both Sheriff Livingston and by Gerald Livingston to purchase a ticket for the pig roast. Sheriff Livingston made a comment to Behne to the effect that if Behne didn't buy a ticket, he wouldn't have a job there the next year. On more than one occasion, Behne was asked by Sheriff William Livingston to put a bumper sticker for Gerald Livingston's campaign on Behne's personal vehicle. Behne memorialized these events as follows: On May the 5th 1995 around 0800 hours upon entering the Sheriff's Office. Sheriff William H. Livingston said to myself, Deputy Behne; "Just the person I wanted to see. I walked over to the Sheriff and said, "Yes boss, what do you need." The Sheriff then ask if I had a bumper sticker on my car, "Jerry Livingston for Sheriff." I said, No I do not." The Sheriff then ask if I would put one on my car. I said, "I guess so ". The Sheriff then said, "because you know I will check ". I then replied, "That isn't right ". The Sheriff then said, "I'll tell you what an't fuckin right, if you don't put a bumper sticker on your car, I'll fire your fuckin ass ". As I was walking away with a Jerry Livingston for Sheriff bumper sticker in my hand I could here the Sheriff saying something about the young guys think they can buck the system, and something about that man gave you that job. Richard G. Behne Jr. Witness #1: Tony Clements Witness #2: Mike Bowser (ID -6, page 1). On the morning of May 9th 1995 at around 0810 hrs., myself Deputy Behne arrived at the Sheriff's Office for work. Upon my arrival I ask Asst. Chief Deputy Rinehart if I could take a vacation day on this Friday, meaning May the 12th of 1995. Deputy Rinehart instructed me to go fill out a request form. I filled out a request form and gave it to Deputy Rinehart. Deputy Rinehart in return gave it back to me and told me to Livinaston, 95- 036 -C2 Page 30 give it to the Sheriff myself. I walked over to the Sheriff's office and gave it to the Sheriff. The Sheriff read it and said you gotta give me a week's notice. I said okay, I'll take one some other day and started to walk off. As I began to walk away the Sheriff said do you want to take Friday off, and I said yes I do. The Sheriff then asked did you put that bumer ha e off. I your ad thank you Sheriff l ff an did, and he said then and walked out f the office can Friday P.S. - I did not put a sticker on my car! Richard G. Behne Jr. (ID -6, page 3). On May the 9th of 1995 at around 1255 hrs. myself Deputy Behne, and Deputy Bowser arrived at the Sheriff's Office. I was told by Asst. Chief Deputy Rinehart to go see the Sheriff in his office. As soon as I stepped in William H. Livingston's office, the Sheriff ask me what the fuck are you three guy's gettin a private attorney for. I replied I do not know what your talkin about. The Sheriff then said yes you do. Then I was asked why are you guy's trying to bring this office down, I replied I do not know what your talkin about. The Sheriff then said I went down to your car, and you still don't have that bumper sticker on your car. r I replied I don't have time. The Sheriff then said you guy's got y so I couldn't fire your asses. Then said well I'm not gonna fire you yet but after the election I'm gonna fire your ass. The Sheriff then said get your fuckin work and get the fuck out of my office. I said yes sir and left the office. Upon walking out the door the Sheriff said and get some work done. Let it be known that I have always completed my work, and do a fine job as a deputy sheriff. Richard G. Behne Jr. (ID -6, page 2). Each of the above incidents occurred in the Sheriff's Office on a work day. Former Deputy Anthony Clements likewise testified that during Gerald Livingston's campaign for Sheriff, Sheriff Livingston asked him on a daily basis whether he had bought a ticket for the fund raiser that was to be held at the Arches Restaurant. At the time Clements was asked to purchase the ticket, Sheriff Livingston "some that some deputies better start buying its or Clements they are sggoi g when out of a job." (Tr. at 57). Sheriff Livingston appeared to he made the st to the C believed that raiser. chased not ticket a attended i t he purchase a ticket to fund raiser. Sheriff William Livingston also told Clements that he had better buy a ticket to the campaign function held at the Londonderry Fire Company. Sheriff Livingston indicated that not only Clements but other deputies would be out of a job if they didn't start purchasing the tickets. Clements was questioned by Sheriff Livingston as to why he had not attended a free campaign event that Clements recalled had been held at a VFW or Legion. Livingston, 95- 036 -C2 Page 31 Sheriff Livingston asked Clements if he had a bumper sticker for Gerald Livingston on his car. When Clements responded in the negative, Sheriff Livingston handed Clements a bumper sticker and told him to put it on. Clements witnessed the event to which Richard Behne testified involving bumper stickers (See, Findings 29a(4); 39a). Clements heard Sheriff Livingston call Behne over and ask him a question concerning bumper stickers. When Behne said he did not have a bumper sticker, the Sheriff became loud and stated that he would check on Behne's car. Clements stated that when Behne said "That's not right," Sheriff Livingston "continued to be boisterous and swear." (Tr. at 60). Clements testified that he believed that Sheriff Livingston did tell Behne that if Behne did not do as he was told regarding the bumper sticker, he would be fired. On the same morning as the incident involving Behne, Sheriff Livingston also told Clements to put a bumper sticker for Gerald Livingston's campaign on his (Clements') car or Clements would be on Sheriff Livingston's "shit list." (Tr. at 64). ID -7 consists of Clement's own, handwritten notes by which he recorded incidents related to this matter (see, Finding 40). The notes were written soon after the depicted incidents occurred. Clements' records of the above incidents involving Behne and himself are at ID -7, page 1, back; page 2, back, bottom half; and page 3 front. ID -7, page 3, back, before the slash ( " / "), is Clements' record of another incident which Clements witnessed. Sheriff Livingston was talking to another man at the counter in the Sheriff's Office. After the other man left, Sheriff Livingston came into the Assistant Chief's and Chief Deputy's Office and said that the man belonged to a gun club with Pat (a Deputy Sheriff in the Dauphin County Sheriff's Office), and that Pat was supporting [Herman] Faiola (a candidate who was running against Gerald Livingston for Sheriff). Sheriff Livingston stated: Pat's supporting Faiola. I don't understand these guys biting the hand that feeds them. I am going to have to fire some guys before the election. ID -7, page 3, back, bottom, after the slash ( " / "), is Clements' record of Gerald Livingston's instructions to Clements to tell all the deputies about a mandatory campaign meeting. Gerald Livingston stated, "We'll see who shows up and who wants to keep their job." ID -7, page 4, front and back, is Clements' record of an incident that occurred in June, after the primary, when Sheriff Livingston called Clements into his office and questioned him regarding the complaint filed with the Dauphin County District Attorney, John Cherry: 6/26/95 11:33 AM Sheriff called me into his office asked me "what the fuck did you hope to gain by signing that complaint? I did not answer. He then stated I didn't have anyone check your cars for bumper stickers. I checked them myself. Livingston, 95- 036 -C2 Page 32 I did not respond. The Sheriff then stated Well I have a surprise coming up for you guys and you won't like it. There may be 6 jobs opening up here shortly. K. Walt then entered the office and he stated to her. I don't know what they hoped to gain by signing that complaint. Another witness, John Weaver, testified that during Gerald Livingston's campaign for the office of Sheriff of Dauphin County, he was approached by both Gerald Livingston and Sheriff William Livingston to participate in election related activities or campaign related activities on Gerald Livingston's behalf. Weaver testified as follows: A Well, probably a few months before the election we were asked to put posters in our front lawns and to attend some dinners. Q Who would have made these requests? A They came from Jerry and from his father. Q And his father would be William Livingston, the sheriff? A Right. (Tr. at 101 -102). Sheriff Livingston indicated to Weaver that tickets were available for sale for dinners for Gerald Livingston. Sheriff William Livingston specifically asked Weaver to put campaign posters in Weaver's front lawn. Sheriff Livingston asked Weaver to take a bumper sticker for Gerald Livingston's campaign for Weaver's car. Weaver took the bumper sticker. Weaver testified as follows: Q Were you advised as to whether he (Sheriff Livingstone was going to take any action in relation to those bumper stickers? A The bumper sticker, it was said there's a good chance I would be looking for another job. Q Who indicated that to you, sir? A The sheriff. Q That's Mr. William Livingston? A That's correct. (Tr. at 103 -104). Livingston, 95- 036 -C2 Page 33 On several occasions, Weaver heard Sheriff William Livingston state, both to individuals and to groups of individuals employed at the Sheriff's Department, that if they didn't support Gerald Livingston in his campaign for Sheriff they could be looking for other jobs. Sheriff Livingston appeared to Weaver to be serious in making such comments. Weaver was concerned that if he did not act as requested, he could be hindering his employment situation. Deputy Richard Shroy testified that in 1995, during the course of his employment with the Dauphin County Sheriff's Department, he was asked to take part in campaign - related activities for Gerald Livingston including hanging up signs, taking out literature, going door to door, buying tickets to fund raisers, and putting a bumper sticker on his car. Shroy bought tickets to at least two of the fund raisers, at a cost of $20 each. Shroy stated that "everybody else" was under pressure to buy the tickets to the fund raisers, by statements that if they didn't start buying, people wouldn't be around after the election. Shroy testified to being told in the office by Mike Rinehart or Henderson of mandatory campaign meetings at Gerald Livingston's house. Shroy testified that there were comments made about who was on the "hit list" and what employees were "dead weight" and who he (Sheriff Livingston) thought his son should "get rid of" or was going to "get rid of." (Tr. at 117). After being informed that there was a "hit list" and that there were certain deputies that were going to be fired after the election, Shroy and others in the Dauphin County Sheriff's Department acted upon advice to document the statements that were being made, before the election. Shroy testified that Sheriff William Livingston handed Shroy a bumper sticker relating to Gerald Livingston's campaign for Sheriff and told Shroy to put it on. Shroy took the bumper sticker. Shroy testified that shortly thereafter, Sheriff Livingston commented "That if we didn't support Jerry, he would get rid of some of his dead weight around here." (Tr. at 117). The day after Shroy received the bumper sticker, Sheriff William Livingston sent for Shroy and questioned him in the office. Shroy testified as follows: A He asked me about am I going to put the bumper sticker on or ain't I. I said no. And then he asked me if I was going to vote for his son. Q Were you -- A I told him. Q Was there any comments made to you? A He told me, you know, I have you written up three times, I said I guess. Then just leaned back in his chair and he said, get the fuck out of here and get some work done. (Tr. at 119). Shroy personally heard Sheriff William Livingston make comments to other deputies about their employment situation with the Sheriff's Department. Shroy testified that Sheriff William Livingston made a statement to Gerald Livingston, in front of Shroy, to the effect, "1 don't believe you are going to need DeJesus around. He's working with the Faiola Committee." (Tr. at 120). Marcial DeJesus was — and is — Livingston, 95- 036 -C2 Page 34 one of the Deputies in the Sheriff's Department. As noted above, Herman Faiola was running for Sheriff against Gerald Livingston. Shroy testified that Sheriff William Livingston asked individuals to participate in campaign related activities under the threat of losing their jobs. Sheriff Livingston made a comment about wanting to see "a hundred percent" of the deputies at one particular election function. Sheriff Livingston questioned deputies who did not attend Gerald Livingston's functions as to why they did not attend. Comments were made about things changing after the election and about getting rid of the dead weight deputies. Shroy testified that Sheriff William Livingston made comments almost on a daily basis, and that Sheriff Livingston's comments gave Shroy the impression that if Shroy did not participate in the campaign activities that Shroy would be terminated. Deputy Marcial DeJesus testified that he was approached regarding participating in campaign activities for Gerald Livingston. Sheriff William Livingston asked DeJesus why he did not attend a fund raiser. DeJesus responded that no one offered him any tickets. DeJesus subsequently bought a ticket to the pig roast fund raiser when Gerald Livingston handed him a ticket. The ticket cost DeJesus $20. Nothing was said directly to DeJesus threatening his job for not participating in activities, although DeJesus did hear rumors that Gerald Livingston said he was the first one on the list to be fired. DeJesus stated that Sheriff Livingston asked DeJesus (nicely) about putting Gerald Livingston's bumper sticker on his car (Tr. at 140). DeJesus witnessed an incident where Sheriff William Livingston told a deputy to put a bumper sticker on if he wanted a day off. DeJesus also witnessed Sheriff Livingston asking Pat Horner if he would buy a ticket. DeJesus stated that Horner said "No," and Gerald Livingston said, "I don't think he wants his job." (Tr. at 138). On one occasion, DeJesus made a statement that Gerald Livingston was going to have a hard time because Herm Faiola was very popular and everybody supported him. Gerald Livingston came in the office and said "Nobody's going to beat me. I am going to be Sheriff." (Tr. at 138). The following day, the Sheriff came in the office and told DeJesus that if DeJesus voted for Faiola, he (Sheriff Livingston) would fire DeJesus (Tr. at 138 -139). In addition to the above six deputies who had complained to the District Attorney, two other employees of the Sheriff's Department testified before this Commission: Assistant Chief Deputy Michael Rinehart and Deputy David Miller. Assistant Chief Deputy Michael Rinehart testified that although Gerald Livingston asked him to participate in the campaign - related activities, he could not recall Sheriff William Livingston asking him to do so. Rinehart did hear Sheriff William Livingston making a comment, which Rinehart stated was made in an open room to whoever was in the office, that "You know who's going to be here next year so you may as well support Jerry." (Tr. at 79 -80). Rinehart also heard Sheriff Livingston comment to individuals regarding the purchase of tickets for Gerald Livingston's events as follows: "Why aren't you guys supporting Jerry. You know who's going to be the Sheriff next year." (Tr. at 80). Rinehart stated that he did not ever hear comments Livingston, 95- 036 -C2 Page 35 by Sheriff Livingston regarding removing deputies from the list for Deputies' training relative to Gerald Livingston's campaign activities. David Miller testified that prior to the May, 1995 primary election, Sheriff William Livingston asked Miller to drive him (Sheriff Livingston) around a particular parking lot "to see bumper stickers." (Tr. at 111). Sheriff Livingston indicated that he wanted to see if there were bumper stickers for Gerald Livingston's campaign on cars. Miller drove Sheriff Livingston through the parking lot which was on South Second Street. Miller drove through the parking lot slowly. The Deputies park their personal vehicles in that parking lot, as do hospital employees. The trip was made in the Sheriff's car, not a personal car, and it occurred during the normal working hours of the Sheriff's Department. Sheriff William Livingston also asked Miller if he (Miller) had a bumper sticker for Gerald Livingston's campaign. Former Sheriff William Livingston testified as set forth in Finding 37, basically denying any wrongdoing. Finally, the evidence before us includes a wage statement dated August 6, 1996 from the Deputy Personnel Director of Dauphin County, which indicates that the present Dauphin County Sheriff earns $25.32 hourly and $46,082 annually, while the former salary of Gerald Livingston as First Deputy was $18.90 hourly and $34,398 annually. Having summarized the relevant facts, we must now determine whether the actions of William Livingston violated Section 3(a) and /or Section 3(c) of Act 9 of 1989. We initially note that we do not find William Livingston to be credible. This is so not only because his testimony flies in the face of the overwhelming evidence against him. Rather, it is, in and of itself, suspect. We highlight two examples. Respondent testified that he did not know when his son was having fund raisers, yet, his very next statement was that he went to every one of them (Tr. at 147). Of greater significance is his testimony involving the "parking lot incident." Livingston insisted that David Miller did not drive him to the parking lot where the Deputies park, but that he drove himself down (Tr. at 156). The former Sheriff's focus was completely misplaced upon the non -issue of who drove rather than on the real issue of what he was doing there. The testimony did serve to confirm his presence at the parking lot and placed him in the position of having to answer the obvious next question, "Did you check bumper stickers ?" Sheriff Livingston's response was evasive and demonstrated a lack of credibility: "I was just checking on cars, anything, I don't know whether it was a bumper sticker or — but I drove down." Id. Having noted Sheriff Livingston's lack of credibility, we now apply the law to the remaining credible evidence. We find that there is clear and convincing evidence that William Livingston violated both Sections 3(a) and 3(c). We first address Section 3(a). The elements for a Section 3(a) violation are the use of the authority of the public position or confidential information received by being in that position for a private pecuniary benefit for the public official /public employee himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. There is no question that the first element, use of authority of office, is met in this case. William Livingston, while Sheriff of Dauphin County, used the authority of that office when he directed and /or solicited his Livingston, 95- 036 -C2 Page 36 employees, the Deputy Sheriffs, to purchase tickets to fund raisers for Gerald Livingston's campaign, to display campaign posters in their yards, distribute campaign literature, put bumper stickers on their personal cars, and the like. These directives and solicitations were made by Sheriff Livingston in the Sheriff's Office, a County facility, and on County time during normal working hours. These facts are established by the clear and convincing, and indeed overwhelming, evidence consisting of the testimony and related notations of witness after witness. Indeed, the only evidence to the contrary is Sheriff Livingston's denial of same and as noted above, we do not find him to be credible. Sheriff Livingston further used the authority of his office by threatening his employees with the loss of employment if they did not support his son and do his bidding. This was a use of authority of office because it was only by virtue of his being Sheriff that Respondent was in a position to revoke the appointments of these Deputy Sheriffs. Sheriff Livingston further used the authority of his office in directing David Miller, an employee of the Sheriff's Department, to drive him, on County time and in a County vehicle, to a parking lot where the Deputies park their cars in order to see if they were displaying bumper stickers for Gerald Livingston on their personal vehicles. The significance of this action is not limited merely to the expenditure of the time and facilities involved, but it extends to the advancement of the overall goal that was to threaten, intimidate and force the Deputy Sheriffs to comply with Sheriff Livingston's directives so as to advance his son's campaign for County Sheriff. The element of use of authority of office having been unquestionably established, the remaining element of a prohibited private pecuniary benefit shall be addressed. Although the position of Sheriff with its higher salary was undoubtedly the ultimate goal that Respondent and his son, Gerald Livingston, sought through their respective efforts, we find that the private pecuniary benefit element is fully established by that which was sought and /or received as to the campaign itself. An attempt to obtain a prohibited private pecuniary benefit is sufficient to establish a violation of Section 3(a), see, Taylor, Order 983; see also, O'Malley v. State Ethics Commission, No. 2658 C.D. 1987 (Pa.Commw. Ct. March 17, 1989). There were both successful and failed attempts by the Respondent to coerce Deputies in his employ to purchase tickets to his son's fund raisers at $20 each. Indeed, even among the six Deputies who filed the complaint with the District Attorney and who testified before this Commission, there were at least five tickets purchased, totaling $100. We know that the Sheriff used County facilities, County staff /time, and a County vehicle in furtherance of his son's campaign, specifically to advance ticket sales, the displaying of bumper stickers on deputies' personal vehicles, and other campaign related matters. The above actions by Sheriff Livingston resulted in a private pecuniary benefit to Gerald Livingston which, in and of itself, was greater than de minimis. Turning now to Section 3(c), we likewise find that William Livingston violated that provision of law. Again, we need look no further than the repeated solicitations to the Deputies for the purchase of tickets to fund raisers under threat of the termination of their employment to find the clear and convincing evidence to support this violation. The cash solicited for the tickets was certainly of monetary value and Livingston, 95- 036 -C2 Page 37 the clear understanding was that if such tickets were not purchased, Sheriff William Livingston would exercise his official action or judgment to terminate the employment of those who did not comply. The other solicitations made by Sheriff William Livingston, such as for the display of political signs in the Deputies' front yards, the display of bumper stickers on their personal vehicles, and the posting of campaign posters, distribution of campaign literature, and such other activities, serve to further illustrate the oppressive tactics by which the Respondent coerced the employees of the Sheriff's Department to support his son's candidacy. The case against the Respondent, former Sheriff William Livingston, has been made as to both Sections 3(a) and 3(c). IV. CONCLUSIONS OF LAW: 1. William Livingston, as Dauphin County Sheriff, was a public official subject to the provisions of Act 9 of 1989. 2. William Livingston violated Section 3(a) of 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 using County facilities, staff /time and equipment and threats of termination in directing and /or soliciting deputy sheriffs to purchase tickets to fund raisers, display campaign posters, distribute campaign literature, and engage in other related activities in relation to his son's candidacy for County Sheriff. 3. William Livingston violated Section 3(c) of Act 9 of 1989 when he directed and /or solicited deputy sheriffs to purchase tickets to fund raisers in relation to his son's candidacy for County Sheriff based upon an understanding that their continued employment would be affected thereby. In Re: William Livingston ORDER NO. 1030 File Docket: 95- 036 -C2 Date Decided: 11/4/96 Date Mailed: 11/13/96 1. William Livingston, as Dauphin County Sheriff, violated Section 3(a) of 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 using County facilities, staff /time and equipment and threats of termination in directing and /or soliciting deputy sheriffs to purchase tickets to fund raisers, display campaign posters, distribute campaign literature, and engage in other related activities in relation to his son's candidacy for County Sheriff. 2. William Livingston violated Section 3(c) of Act 9 of 1989 when he directed and /or solicited deputy sheriffs to purchase tickets to fund raisers in relation to his son's candidacy for County Sheriff based upon an understanding that their continued employment would be affected thereby. BY THE COMMISSION, ai„ DANEEN E. REESE, CHAIR