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HomeMy WebLinkAbout1035 PuliceIn Re: John Pulice STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 95- 076 -C2 Date Decided: 2/20/97 Date Mailed: 3/7/97 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 gt 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 hearing was held. 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. Pulice, 95- 076 -C2 Page 2 I. ALLEGATION: That John Pulice, a public employee in his capacity as President of the Millcreek School District Board of Directors violated 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 discussions and /or decisions of the Personnel Committee and the Millcreek School Board resulting in a change of status of his son -in- law to the position of Assistant Principal /Athletic Director for the School District with a salary increase, thereby benefitting his daughter. 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). II. FINDINGS: A. Pleadings 1. The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that John Pulice violated provisions of the State Ethics Act (Act 9 of 1989). 2. Upon review of the complaint 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 December 15, 1995. 4. The preliminary inquiry was completed within sixty days. 5. On February 13, 1996, a letter was forwarded to John Pulice, 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 281 100 771. b. The domestic return receipt bore the signature of J. Pulice. 6. The full investigation was commenced at the direction of the Executive Director of the State Ethics Commission. 7. On July 10, 1996, a letter was forwarded to John Pulice by the Executive Director of the State Ethics Commission modifying the allegations contained in the February 13, 1996, letter advising him of the investigation. a. Said letter was forwarded by certified mail, no. Z 129 438 631. Pulice, 95- 076 -C2 Page 3 b. The domestic return receipt bore the signature of J. Pulice. 8. The Investigative Complaint was mailed to the Respondent on August 5, 1996. 9. John Pulice served as a Millcreek Township School Board Director from approximately 1981 through November, -1995. a. He served as Board President during 1994/1995 board year. 10. During Pulice's years of service on the board, Millcreek School District has employed certain family members of Pulice. a. Daughter, Traci Pulice Loomis, has been employed as a Teacher since September, 1981. b. Daughter, Paige Pulice - Hanlon, has been employed as a Teacher since August 26, 1985. c. Son -in -law, David Hanlon, has been employed in various positions since November 2, 1979, most recently as an Assistant Principal /Athletic Director. d. Wife, Peggy Pulice, was employed as an Aide in the Guidance Department of the High School from 1978 through August, 1993. 11. Paige Pulice and David Hanlon were married on November 29, 1991. 12. As President of the school board, Pulice would assign board members to various committees. a. Members of the School Board would request which committees they would like to serve on. 13. At the January 9, 1995, Regular Board of Directors meeting, Pulice, assigned himself to the Personnel and Sports Committees and all other committees as well, as the President of the School Board is to be on all said committees. a. He assigned himself as Chairman of the Sports Committee which committee came about when members and taxpayers of the Millcreek community requested the formation of such a committee with community representatives, to address certain problems with policies in the Millcreek At Ietic Department. 14. Board m mbers were encouraged to attend committee meetings, even if they were not assigned to the committee. 15. Pulice ha served on the Personnel Committee for a number of years, usually as Chair an. a. Pulice was not the Chairman in 1995. 16. The Personnel Committee, of which Pulice was a member, did not conduct employment interviews or make hiring recommendations to the board, further Pulice, 95- 076 -C2 Page 4 stating that the Personnel Committee never conducts employment interviews or makes hiring recommendations to the School Board. a. Hiring recommendations were made by the Personnel Director to the Superintendent, who then took it to the board. b. The agenda for the committee meetings was prepared by the Personnel Director. 17. At the January 31, 1995, Personnel Committee meeting, a discussion took place regarding a Change of Status of the Position of Teacher /Athletic Director to Assistant Principal /Athletic Director, further stating that the issue was presented before the entire School Board so that all Board Members were aware of the issue regarding a possible change in status of the said position. a. Committee members John Pulice and Dennis Crotty were present. b. Also present were Superintendent Robert Agnew; Personnel Director Vincent Savelli; and Board Member Alice Neibauer. c. The position of Teacher /Athletic Director was held by David Hanlon, Pulice's son -in -law. 18. Superintendent Robert Agnew had been an advocate of changing the status of Teacher /Athletic Director to Assistant Principal /Athletic Director, further adding that the community of Millcreek formed an ad hoc committee which recommended the change in status some five years earlier. a. Agnew had recommended this change at least five years earlier. b. Personnel Director Vincent Savelli supported this change. c. The change had been brought up several times over the years and was not acted on for financial reasons. 19. The reason for recommending the change was that Assistant Principals were responsible for evaluating coaches, further stating that the reason for the recommended change was because of policy problems in evaluating coaches, said determination being made after four coaches were relieved of their duties. a. A belief existed that most of the assistant principals -had never been involved with coaching and were not providing objective evaluations. b. The school administration believed that having the athletic director perform evaluations would result in more objective evaluations. c. The athletic director position was classified as a teacher position and teachers were not permitted to evaluate coaches. 20. The minutes of the January 31, 1995, Personnel Committee meeting, reflect the following discussion and recommendation regarding the position of Athletic Director. Pulice, 95- 076 -C2 Page 5 "The committee reviewed the position of the Athletic Director. In recent years, the magnitude of the job has increased dramatically. Over 900 students will have participated in our high school program for the 1994/95 school year. We also have a middle school sports program. The Millcreek community expects the district to have a Class A program. Recommendations: Change this position to an Assistant Principal position. In this way, the Athletic Director would be able to evaluate coaches. By making this change, the high school principal would be able to devote more time to the instructional program. The position would have to be posted. This will be discussed at the February 6, 1995, Board meeting." John Pulice was present for the discussions and recommendations. 21. An attachment to the January 31, 1995, Personnel Committee minutes consisted of a job description for the position of Assistant Principal /Athletic Director which contained the following qualifications, further stating that two qualifications which were legally required by the School Code to be listed were not, namely, having PA certification as Secondary Principal and a minimum of five years teaching under PA certification preferred: (1) Teaching Certificate (2) CPR Training preferred (3) Knowledge of sport safety (4) Experience as player or coach (5) Talent in working with people and effective business management skills (6) Such alternative to the above as the board may find appropriate and acceptable (7) Cannot be involved in coaching any sport a. Responsibilities for the position were also detailed. 22. At the Regular Board Meeting /Study Session held on February 6, 1995, the Change of Status, Athletic Director to Assistant Principal, was presented to the board by Personnel Committee Chairman, Dennis Crotty, and Superintendent Robert Agnew, further stating that there was no discussion at said meeting on subject, nor were there any objections from any of the Board Members on the change of status. The entire School Board heard the proposal. a. No action was taken and the Change of Status was directed to be included on the February 20, 1995, Agenda. 23. Between the February 6, 1995, meeting, and the next Regular Board meeting on February 20, 1995, the job description for the position of Assistant Principal /Athletic Director was revised, further stating that the first two qualifications which were inadvertently omitted as described in Answer 21, were placed in the said job description, as legally required by the School Code. a. The qualifications were changed to reflect the following: (1) PA Certification as Secondary Principal Pulice, 95- 076 -C2 Page 6 (2) Minimum of five years teaching under PA Certification preferred (3) Minimum of three years of experience as Athletic Director (4) Working knowledge of PIAA and National Federation Rules and Regulations (5) Previous experience at high school and /or collegiate level as a player and high school coaching experience. (6) Knowledge of sport safety and CPR training preferred (7) Experience in creating and monitoring budgets. (8) Talent in working with people and effective business management skills (9) Proven communication skills in Public Relations and Human Resources. b. The responsibilities remained the same with the following additions: (1) Act as Summer School Director (2) Coordinate the Academic Sports League in conjunction with the principal. 24. At the February 20, 1995, Regular School Board meeting a discussion and vote regarding the proposed Change of Status took place. a. A motion was made by Mr. Crotty and seconded by Mrs. Neibauer to approve the Change of Status Athletic Director Position to Assistant Principal /Athletic Director Position and Job Description. b. Mrs. McDowell stated she felt the new superintendent should look at this change. Mrs. Gathers made a motion to table the motion but there was no second. c. On a poll vote, the ayes were: Mr. Leubin, Mr. Crotty, Mr. Linendoll, Mr. Pulice, Mrs. Robertson, and Mrs. Neibauer. The nay votes were cast by: Mrs. McDowell, Mrs. Gathers, and Mr. Duncan." d. The motion passed by a 6 to 3 vote with Pulice voting with the majority. 25. The Announcement of Vacancy for the Assistant Principal /Athletic Director position at McDowell High School was posted on February 22, 1995. a. The position was to be effective July 1, 1995. b. Responses were to be received by March 8, 1995. c. The posting was internal, within the Millcreek Township School District. d. The position was "posted", as it was legally required to be. 26. On February 28, 1995, Superintendent Robert Agnew and Personnel Director Vincent Savelli retired. a. Dr. Alan Lindquist was Agnew's replacement and approved of the change of status proposal. Pulice, 95- 076 -C2 Page 7 27. A Search Committee had been formed to interview and evaluate prospective applicants for the position. The committee included the following: Edward Grzelak - Principal McDowell High School Alan Karns - Principal McDowell Intermediate High School R. Alan Zito - Supervisor of Secondary Education 28. David Hanlon was the only applicant that applied for the position. a. One other individual from outside the district expressed an interest in the position, but did not follow through with applying. b. No other district employee met the qualifications of three years experience as Athletic Director, and Certification as a Secondary Principal. 29. David Hanlon received his Professional Certificate from the Commonwealth of Pennsylvania in the following areas: Date of Certification Area of Certification 05/79 Athletic Coach 06/84 English 06/84 Secondary School Guidance 11/86 School Program Specialist 09/93 Secondary Principal a. Hanlon was qualified to apply for any Assistant Principal position that became available. 30. Hanlon was interviewed by the Search Committee in March, 1995. 31. Superintendent Alan Lindquist, and Assistant Superintendent Verel Salmon, conducted a second interview with Hanlon, and made the final decision to recommend Hanlon to the School Board for hiring for the position of Assistant Principal /Athletic Director. a. The board usually approved the recommendation by the administration on hiring issues. 32. The salary for the Assistant Principal /Athletic Director position was determined by the administration using the guidelines established in the Millcreek Township School District Act 93 Administrator Compensation Plan for the 1994 -1997 school years, as approved by the Board of Directors on September 24, 1993. a. The contract established the base salary and number of work days for each administrative position. b. New administrators could be paid a percentage (80 - 100 %) of the base salary set forth in the contract. 33. At the April 12, 1995, Personnel Committee meeting John Pulice was present when a discussion of the salary for David Hanlon was proposed. Pulice, 95- 076 -C2 Page 8 a. The committee recommended that the board accept the change of status from Teacher /Athletic Director to Assistant Principal /Athletic Director. b. Present at the meeting were board members John Pulice, Dennis Crotty, Alice Neibauer, Superintendent Alan Lindquist and Assistant Superintendent Verel Salmon. 34. The Millcreek Township School Board approved the hiring of David Hanlon as Assistant Principal /Athletic Director at the April 24, 1995, Regular Board meeting. a. A motion was approved unanimously to change the status of David Hanlon from Teacher /Athletic Director to Assistant Principal /Athletic Director at a salary of $53,910.00, further stating that this was the first that the Millcreek School Board was presented with the actual salary of David Hanlon. b. John Pulice was present and participated in the vote, further stating that the vote was 8 to 0. 35. As a result of the Board action the position of Teacher /Athletic Director was eliminated. a. By incorporating the duties of Summer School Director and Athletic Director into the Assistant Principal /Athletic Director position, those two areas were eliminated as supplemental positions. 36. The Change of Status and subsequent hiring of Hanlon as Assistant Principal /Athletic Director resulted in a pay increase; an increase in the number of days he was required to work; and additional responsibilities, further stating that the increase in number of days he was required to work and the additional responsibilities, mostly resulted in a decrease in pay, for David Hanlon. a. As an Assistant Principal, Hanlon was required to work an additional twenty -four (24) days each school year, the difference between 186 days worked as a teacher and 210 as an Assistant Principal. b. The added responsibilities included that of Director of Summer School and Coordinator of the Academic Sports League. 37. Prior to the board action to hire David Hanlon in the position of Assistant Principal /Athletic Director, a written opinion was issued by the solicitor addressing the issue of whether a member of the Millcreek Township School District Board of Directors could vote on a public employee contract for his son - in -law. 38. The written opinion, dated April 11, 1995, was issued by Timothy M. Sennett, an attorney with the firm of Knox, McLaughlin, Gornall & Sennett, P.C., the appointed solicitor for the Millcreek Township School District. a. Sennett referenced "Conflict of Interest" and the definition of "Immediate Family ", 65 P.S. §402, and made the following determination: Pulice, 95- 076 -C2 Page 9 "In Tight of the above definition, I do not believe a board member voting on a public employee position for his son -in -law would qualify as a restricted activity under Section 403(a) since it does not constitute a conflict of interest as defined in Section 402." b. Sennett referenced 65 P.S. §403(f) and came to the following conclusion: "In regard to Section 403(f), the board member's child is not entering into, any contract with the Millcreek Township School District. The son - in -law obviously would not be considered a child under the Act." c. Sennett also considered the question under the Pennsylvania Public School Code, 24 P.S. § I I -Il 11, Employment of Relatives and School Directors, as follows: "Even if we assume the position in question would qualify as a teaching position under the definition of "teacher ", it does not appear that a son - in -law falls within this provision, thus again the board member would not be prohibited under the school code from voting on a position to be awarded to a son -in- law." "In Tight of the above, I would submit that the member of the Board of Directors of the Millcreek School District could vote on the employment of a son -in -law as a public employee of the school district." 39. Pulice participated in the January 31, 1995, Personnel Committee meeting resulting in a recommendation being made to change the position from Teacher /Athletic Director to Assistant Principal /Athletic Director. (See Finding No. 20). 40. On February 20, 1995, Pulice voted at a regular school board meeting to approve the change of status. 41. At the February 12, 1995, Personnel Committee Meeting Pulice participated in discussions regarding the percentage of the base salary for the Assistant Principal /Athletic Director position. a. Said salary is set by contract only. B. Testimony 42. Thomas Mudger ( Mudger) is the Director of Finance in the Millcreek Township School District (MTSD). a. ID -1 is a photocopy of the MTSD Administrative Agreement setting forth the salaries of employment positions. b. ID -8 was prepared by Mudger and reflects a salary for David Hanlon for 1995/96 in the amount of $56,788 as Assistant Secondary Principal. c. When an administrator starts employment, he is paid either 80, 85, 90, 95 or 100% of the base salary set by the Superintendent. Pulice, 95- 076 -C2 Page 10 g. (1) For David Hanlon (Hanlon), 90% was used to provide a salary of $53,910 from the base of $59,900 for Assistant Principal /Athletic Director. (2) For Hanlon, $1,800 was added for receiving 54 credits beyond the Bachelor's degree. (3) For Hanlon, merit pay could add $1,078 to his salary. d. If Hanlon remained a teacher, his salary for 1995/96 would have been $41,161 plus $4,000 for summer school, $2,400 in credits, and $6,477 for Athletic Director, yielding a total of $54,038. e. As Assistant Principal /Athletic Director, Hanlon received $2,750 more for 1995/96 than in the position of Teacher /Athletic Director but Hanlon also had to work 210 days rather than 186 days as a teacher (excluding summer school). (1) When Hanlon as a teacher directed summer school, that added 30 days to 186 yielding a total of 216 days. f. If a person leaves the teaching ranks to become an administrator, a percentage is applied to the base salary to insure that the person will make the same or greater money. (1) Applying 80 or 85% to the base salary for Hanlon would have resulted in him losing money. (2) Applying the 90% rate for Hanlon, he received more money as Assistant Principal /Athletic Director. At the directive of the Superintendent, Mudger works up the salaries for administrative positions, applying the percentages to the base salaries. 43. Hanlon is the Assistant Principal /Athletic Director for MTSD since July, 1995. a. Hanlon was a teacher since 1979 and Athletic Director since 1986. b. Hanlon married Paige Pulice (Paige), who is the daughter of Pulice, in November, 1991. c. Hanlon and Paige maintain a joint checking account with the Erie County School Employees' Federal Credit Union (Credit Union). (1) Hanlon's net pay is deposited into checking /savings accounts. (a) Household expenses for Hanlon and Paige are paid from the joint checking account. [ 1 ] Other expenses such as mortgage, car lease payments, utilities, and Master Card are also paid. Pulice, 95- 076 -C2 Page 11 d. Paige was on unpaid maternity leave from approximately mid 1994 to April, 1995. e. Hanlon unsuccessfully interviewed for an assistant principal position with Fairview School District in 1993 and McDowell High School in 1994. f. ID -10D is photocopies of check carbons from the joint checking account in the Credit Union by Hanlon and Paige. (1) The checks are for the period after July, 1995 in payment of joint expenses owed by Hanlon and Paige. (a) The checks are for payments of joint expenses for Visa, gasoline, and their mortgage. g. ID -3A is photocopies of joint checking /savings accounts for Hanlon and Paige and other accounts. h. ID -5 is photocopies of MasterCard bills for Hanlon and Paige for 1995. i. ID -7 is in part photocopies of the deed for the current residence of Hanlon and Paige on which there is a mortgage in their joint names. j. ID -6 is a photocopy of a joint loan application by Hanlon and his spouse. (1) The payment on the loan came from the joint checking account of Hanlon and Paige at the Credit Union. k. When Hanlon became Teacher /Athletic Director, he was not married to Paige. I. When the position of Assistant Principal /Athletic Director was posted, it included the job description. 44. Connie Mazza is the loan officer of the Credit Union. a. ID -3A is photocopies of joint bank accounts of Hanlon and Paige in the Credit Union consisting of savings, checking, and MasterCard. b. ID -3B is photocopies of Credit Union savings /checking accounts of Hanlon and Paige. c. Payroll deductions from MTSD go into the joint account of Hanlon and Paige. 45. Mary Albert is a Special Investigator in the Western Office of the State Ethics Commission and Robert Caruso is the Deputy Executive Director and Director of Investigations of the State Ethics Commission both of whom provided testimony as to the processes and procedures for investigations in general and as to the investigation of Pulice. 46. Robert J. Agnew (Agnew) is the former Superintendent of the MTSD, having retired in February, 1995. Pulice, 95- 076 -C2 Page 12 a. In January, 1995, Agnew made a recommendation to the Personnel Committee of the Board that a position of Assistant Principal /Athletic Director be created. (1) Although Hanlon was Athletic Director, he was also a teacher with coach evaluations made by principals /assistant principals. b. The agenda for the January 31, 1995 Personnel Committee, where the Athletic Director issue was discussed, was prepared by Agnew and Personnel Director Savelli. c. Personnel Committees receive recommendations from administrators and in turn may recommend placing an item on the agenda for Board action. d. For the position of Assistant Principal /Athletic Director, Agnew and Savelli added the criteria that applicants have prior experience. e. Pennsylvania principal certification for the position of Assistant Principal /Athletic Director is a legal requirement. f. Hanlon as teacher /Athletic Director could not evaluate or discipline coaches because they were his peers. g. Agnew had no involvement in the selection of Hanlon for the position of Assistant Principal /Athletic Director. h. Pulice never discussed with Agnew the subject of the creation of the position of Assistant Principal /Athletic Director. i. Pulice participated in Board and Committee meetings as to the creation of the Assistant Principal /Athletic Director position. (1) Hirings were done by a vote of the Board. j. The positions of teacher plus Athletic Director plus summer school would entail 216 or 217 days. 47. Alan Lindquist (Lindquist) is the Superintendent of MTSD since March 1, 1995. a. Hanlon was the only applicant for the position of Assistant Principal /Athletic Director. (1) Hanlon was interviewed by the Interview Committee as well as Lindquist and the Assistant Superintendent. (2) Lindquist recommended Hanlon for the position. b. As Assistant Principal /Athletic Director, Hanlon performed different duties. c. Pulice never gave directions to Lindquist as to the matters concerning Hanlon. Pulice, 95- 076 -C2 Page 13 d. Pulice was in attendance and did not abstain as to the Committee's recommendation to change the status of the position from Teacher /Athletic Director to Assistant Principal /Athletic Director. e. Pulice voted in favor of changing Hanlon from Teacher /Athletic Director to Assistant Principal /Athletic Director. 48. Margaret Viola (Viola) was the Confidential Secretary to Savelli, the former Personnel Director at MTSD who retired on February 28, 1995. a. Viola is currently an Administrative Assistant in Personnel Services. b. Revising the Assistant Principal /Athletic Director job description to include principal certification is not unusual. c. Pulice never talked to Viola about the application for the position of Assistant Principal /Athletic Director. 49. Hanlon received a financial gain through a salary increase when he became Assistant Principal /Athletic Director at MTSD. a. Paige received a financial gain in that the salary increase of Hanlon was deposited into their joint bank accounts and used in part to pay their joint obligations. C. Documents 50. ID -2A if photocopies of checks issued by MTSD to Hanlon and Paige Pulice - Hanlon in 1995. 51. ID -3A is photocopies of Joint Share Account Agreements in the names of Pulice and Paige Pulice; Hanlon and Paige Pulice - Hanlon; and Hanlon and Carolyn Hanlon. 52. ID -3B is photocopies of Statements of Account from the joint Credit Union account in the names of Hanlon and Paige Pulice- Hanlon which reflect various transactions, deposits, and payments made. 53. ID -4 is photocopies inter alia of an application and Statements of Accounts for a Credit Union account in the name(s) of Paige Pulice as well as Hanlon and Paige Pulice - Hanlon. 54. ID -5 inter alia is photocopies of charges and payments as to a MasterCard account for Paige Pulice - Hanlon in 1995. 55. ID -6 is a photocopy of a loan application of Paige Pulice- Hanlon, cosigned by Hanlon at the Credit Union in 1994. 56. ID -8 is a photocopy of a document which reflects inter alia the differential between the salary for Hanlon as Teacher /Athletic Director compared to Assistant Principal /Athletic Director for the 1995/96 school year. Pulice, 95- 076 -C2 Page 14 a. Hanlon received an increase of $2,750 by becoming Assistant Principal /Athletic Director. 57. ID -9 is photocopies of a document dated April 12, 1995 relating to a meeting of the MTSD Personnel Committee. a. Pulice attended the meeting. b. Item #5 concerned Hanlon. (1) Hanlon's salary was reviewed. (2) A recommendation was made to the School Board to "accept the change of status from teacher /athletic director to assistant principal /athletic director." 58. R -1 is a photocopy of a redacted Complaint against Pulice alleging a violation of the Ethics Act on the basis that the MTSD Board voted on an "early bird contract" one week after Pulice denied that secret negotiations were occurring. 59 R -2 is a photocopy of a redacted Complaint against Pulice alleging a violation of the Ethics Act as to the MTSD teacher's contract on the basis that he met at noon time at certain clubs outside the District premises with the President of the Teachers Union. 60. R -3 is photocopies of a document dated January 31, 1995 relative to the MTSD Personnel Committee meeting. a. Pulice attended the meeting. b. Item #5 related to the position of Athletic Director. (1) A review was made of the position. (2) The recommendation was to change the position to Assistant Principal who could evaluate coaches. (a) The matter would be discussed at the February 6, 1995 meeting. (b) A job description for Assistant Principal /Athletic Director was attached. (c) The position would have to be posted. 61. R -4 is photocopies of the MTSD minutes for February 20, 1995. a. A motion by Crotty, second by Niebauer to approve the status change of Athletic Director to Assistant Principal /Athletic Director passed 6 -3 with Pulice voting with the majority. 62. R -8 is photocopies of the MTSD minutes for a meeting on April 24, 1995. Pulice, 95- 076 -C2 Page 15 a. As to Superintendent's items, one of the proposals is to change the status of Hanlon from Teacher /Athletic Director to Assistant Principal /Athletic Director for July 1, 1995 at a salary of $53,910. (1) Motion carried unanimously 8 -0 with Pulice voting. 63. R -9 is a photocopy of a letter dated April 11, 1995 to Pulice from Timothy M. Sennett on the issue of MTSD voting on an employment contract of his son -in- law. a. Sennett referenced both the Ethics Law and Public School Code. b. As to the Ethics Law, Sennett noted Section 3(a), 3(f), as well as the definitions of conflict and immediate family. c. Sennett provided the following conclusions as to the Ethics Law: In Tight of the above definition, I do not believe a board member voting on a public employee position for his son -in -law would qualify as a restricted activity under Section 403(a) since it does not constitute a conflict of interest as defined in Section 402. * * In regard to Section 403(f), the board member's child is not entering into any contract with the Millcreek Township School District. The son -in -law obviously would not be considered a child under the Act. III. DISCUSSION: At all times relevant to this matter, the Respondent, John Pulice, hereinafter Pulice, 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, DI Mg, The issue before us is whether Pulice violated Section 3(a) of the Ethics Law (Act 9 of 1989) as to 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 discussions or decisions of the Personnel Committee and the Millcreek School Board resulting in a change of status of his son -in -law to the position of Assistant Principal /Athletic Director resulting in a salary increase thereby benefitting his daughter. 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: Pulice, 95- 076 -C2 Page 16 65 P.S. §402. 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 briefly summarize the material facts. In this case the facts are not in dispute. Pulice served as a Millcreek Township School Board Director from 1981 through 1995 and as Board President during 1994 and 1995. As School Board President, Pulice assigned Board Members to various committees. Pulice as President of the School Board served on all committees. Robert J. Agnew (Agnew) served as Superintendent of the Millcreek Township School District (MTSD) until he retired in February, 1995. In January, 1995, Agnew made a recommendation to the Personnel Committee of the MTSD Board to change the status of the "Teacher /Athletic Director" position to "Assistant Principal /Athletic Director." At that time, David Hanlon, who is the spouse of Pulice's daughter, Paige, was the Teacher /Athletic Director in MTSD. Agnew recommended the change because a Teacher /Athletic Director could not evaluate or discipline coaches who were his peers, but an Assistant Principal /Athletic Director could evaluate the coaches. Pulice never discussed the position status change with Agnew, either generally or specifically with regard to Hanlon. At the January 31, 1995 meeting of the Personnel Committee, with Pulice in attendance, the matter of the status change of the Athletic Director from Teacher /Athletic Director to Assistant Principal /Athletic Director was discussed, and it was recommended that the item be placed on the MTSD agenda for Board action. The matter was initially placed on the February 6, 1995 Board agenda, but it was later deferred to the February 20, 1995 agenda. Meanwhile, the job description for the position was revised to include the requirement that the applicant be certified as a secondary principal and have at least five years of teaching experience. At the February 20, 1995 meeting of the MTSD Board, Pulice voted with the majority in passing a motion, by a 6 -3 vote, to change the status of the Athletic Director to Assistant Principal /Athletic Director. The position for Assistant Principal /Athletic Director was posted on February 22, 1995 at MTSD. A Search Committee, comprised of two principals and a supervisor, was formed to evaluate applicants for the position. Hanlon, being the only applicant Pulice, 95- 076 -C2 Page 17 for the position, was interviewed by the Search Committee in March, 1995. By that time, Agnew had retired and had been succeeded by Alan Lindquist (Lindquist) as Superintendent of MTSD. Lindquist and an Assistant Superintendent conducted a second interview of Hanlon and made the decision to recommend to the Board that Hanlon be hired for the position. Thereafter, the Board's Solicitor issued an opinion dated April 11, 1995 addressing the question of whether a School Board Member may vote on a public employee contract for his son -in -law. The Solicitor reviewed the question both under the Ethics Law and the Public School Code. With regard to Section 3(a) of the Ethics Law which is at issue in this case, the Solicitor was of the opinion that the School Board Member could vote on the employment of his son -in -law because it did not constitute a conflict under Section 402 of the Ethics Law. The Personnel Committee met on April 12, 1995 to discuss a salary proposal for Hanlon. Pulice was again present at that meeting. A salary computation for Hanlon was made by applying a percentage starting at 80% of the base salary. Computations increased in 5% increments until Hanlon would receive more money in the position offered. Hanlon's salary was arrived at by applying 90% to the base salary which gave him a $2,750 increase over what he was receiving as Teacher /Athletic Director. On April 24, 1995, the MTSD Board approved the hiring of Hanlon as Assistant Principal /Athletic Director by a vote of 8 -0, with Pulice present and participating. In his newly created position as Assistant Principal /Athletic Director, Hanlon received a first year salary increase of approximately $2,750. Hanlon's net pay is deposited into checking /savings accounts which he holds jointly with his wife, Paige. Hanlon married Paige Pulice in 1991. Hanlon's net pay has been used in part to pay joint expenses for which both he and Paige are legally obligated, including a mortgage, car lease payments, utilities, and charge cards. Having highlighted the facts, we shall preliminarily address Pulice's "Motion to Dismiss Complaints, Terminate Investigation and For Sanctions." In the first of the four combined Motions, Pulice seeks a dismissal of the two sworn complaints that were filed against him. Pulice contends that since the complaints pertained to contract extensions with the teachers, and such contract extensions in and of themselves do not implicate the Ethics Law, the Investigative Division should have terminated the case and given notice under Section 8. Pulice contends that the Investigative Division wrongfully moved forward with the instant allegation. We reject the argument. The wording of the complaints was sufficiently broad to encompass possible Ethics Law violations. Since the complaints on their face suggested and certainly did not rule out possible Ethics Law violations, the Investigative Division was in its discretion to proceed as it did. The second Motion asks that the Commission find a wrongful use of act on the theory that the sworn complaints were filed frivolously. To the extent Pulice wishes to pursue a wrongful use of act determination, he may do so pursuant to the proper procedures set forth in the Ethics Law and Regulations of this Commission, but he may not do so in the context of this proceeding. The Motion is denied. Pulice, 95- 076 -C2 Page 18 The third Motion seeks a dismissal of the Investigative Complaint on multiple theories: that the sworn complaints raised a different allegation than that which is being pursued; that the allegation in this case is not legally supported by the Ethics Law; and that there was no use of authority of office by Pulice who made no motions, seconds, or deciding votes. With regard to the allegation arguments, as noted above, the initial complaints were sufficiently broad to encompass possible Ethics Law violations. Pulice was clearly given notice of the allegation which the Investigative Division was pursuing and it was clearly within the purview of the Ethics Law. The fact that a legal issue exists as to a private pecuniary benefit to immediate family does not mean the case is not legally supported by the Ethics Law. Finally, the use of authority of office is not limited to making motions, seconds, or casting deciding votes. See, Juliante, Order No. 809; Snyder, Order No. 979 -2, affirmed Snyder v. SEC, Slip Opinion filed in Commonwealth Court on December 18, 1996 at 817 C.D. 1996, Petition for AIlocator pending. Accordingly, we deny the Motion to Dismiss the Investigative Complaint. As for the fourth Motion which is for sanctions, Pulice asserts that he has been intruded upon and inconvenienced by this proceeding which he contends has no basis and which he complains has caused him to expend legal fees. Pulice seeks fees and costs on the theory that the complainants, his political opponents, and the School District have been led to believe that the complaints have credence. We deny the Motion for two reasons. First, it has no merit. Respondent has experienced no greater "intrusion" or "inconvenience" than any other person who is called upon to defend himself before an administrative agency. Second, Respondent has cited no authority that would allow this Commission to grant such relief even if we were inclined to do so (and we emphatically are not). We shall now address the primary legal issue that has been raised in this case. That issue is whether the salary increase to Pulice's son -in -law can support the element of a private pecuniary benefit to a member of Pulice's immediate family where the definition of immediate family does not include a son -in -law but the money tendered to Hanlon was deposited in the Hanlons' joint account and applied to pay their joint obligations. The term "immediate family" is defined under the Ethics Law as follows: Section 2. Definitions "Immediate family." A parent, spouse, child, brother or sister. 65 P.S. §402. The Investigative Division concedes that the General Assembly did not include in -laws in the definition of "immediate family," but notes that it did include child in that definition. Paige Hanlon is Pulice's child. The Investigative Division contends that a violation has occurred because a direct pecuniary benefit enured to Pulice's daughter, Paige. The Investigative Division argues that all of the component elements for a Section 3(a) violation have been met, citing our decision in Sonntaq, Order 904. After referencing the legislative debate on the definition of "immediate family" in the. Ethics Law, the Investigative Division argues that a finding of no violation in this case would create a major loophole in the Ethics Law. Pulice, 95- 076 -C2 Page 19 Respondent contends that the legislative definition of "immediate family" cannot be extended to a son -in -law; that the General Assembly did not include in -laws in the definition of immediate family; that no pecuniary benefit was received by Pulice's daughter as to Hanlon's appointment to the position; and that no connection exists between Pulice's actions and Hanlon's decision as to his finances. In weighing the arguments that have been advanced by both parties, we agree with the Investigative Division's position on this issue. Increased compensation to a son -in -law can support the element of a private pecuniary benefit to a public official's daughter, particularly where the spouses have joint accounts and joint obligations to which those monies are applied. Such has been established in this case. We now turn to the numerous other legal arguments made by Pulice in his Brief and Reply Brief. To the extent that arguments in the Briefs raise or reiterate arguments that have already been addressed above, we note that they shall not be repeated here. Furthermore, we must note that we have experienced great difficulty in understanding many of Pulice's arguments. Although Pulice typically sets forth a number of statements that would appear to be proffered to advocate a dismissal or a finding of no violation, in many instances there is no identifiable argument or point that is being made to justify the end result. Hence, we concede that Pulice's perception of his arguments and our discernment of them may not coincide in some instances. Pulice advocates for a dismissal or a finding of no violation arguing that: the investigative process is fatally defective in that the two sworn complaints had a different allegation than the allegation as to Pulice's son -in -law and the Investigative Division cannot switch the allegation they wish to investigate in the middle of a case; the compensation received by Hanlon for services rendered cannot equate to a private pecuniary benefit citing various cases such as Dodaro v. SEC, No. 137 C.D. 1988, 594 A.2d 652 (1991), and Rebottini, et al. v. SEC, 2165 -2168 C.D. 1992; and that no "private" pecuniary benefit element occurred in that the process of selecting Hanlon was an open one; the clear and convincing proof standard fails in this case; the allegation identifying Pulice as a public employee taking action as a President of the School Board does not conform with the evidence of record that Pulice was a public official taking action as a Board Member; Pulice did not use the authority of office in that he had no contact with Agnew or Lindquist and did not make motions, second motions, or cast a deciding vote; the position that Hanlon received did not involve a salary increase because Hanlon's prior and current positions are not identical; and the legislative purpose as to investigations was not followed as to the process and purpose as set forth in the Ethics Law. Pulice makes various other objections as to the investigative and hearing process: the failure of the Hearing Officer to participate in the final decision; the recusal of one Commissioner who knows Pulice; the failure by the Investigative Division to either terminate the proceeding or pursue the two sworn complaints; the failure of the Investigative Division to investigate the alleged frivolous nature of the two sworn complaints; lack of probable cause to investigate in this case; error on the part of the Investigative Division in issuing the Investigative Complaint as to a different allegation causing Pulice to expend costs and legal fees; and finally, error by the Hearing Officer in allowing evidence as to Hanlon's finances and his failure to grant Pulice's Motion to Quash Subpoenas and denial of Pulice's Motion to Exclude Evidence as to Hanlon's financial records. Pulice, 95- 076 -C2 Page 20 Pulice's first argument regarding the different allegations between the two sworn complaints and the instant matter has been addressed as to his Motion for Dismissal. As to the argument that the Investigative Division cannot "modify" an allegation in the middle of investigation, we reject this argument. There is no prohibition in the Ethics Law for the Investigative Division to conduct more than one investigation against a respondent as to different allegations. If, for reasons of administrative economy, the Investigative Division chooses to combine different allegations against a respondent in one proceeding so that time and expense is saved by all concerned, such discretionary action in our view is appropriate; it is certainly not contrary to Section 8 of the Ethics Law. As to Pulice's argument that the two complaints which were filed against him did not involve the issue of his son -in -law /daughter, the investigation was completed within the time constraints of Section 8(b). Pulice was given notice by the Investigative Division of the instant allegation. Pulice admitted the first 8 pleadings in the Investigative Complaint which related to the time deadlines and requirements of the investigative process. The attempt by Pulice to now collaterally attack the investigation during the hearing process after he admitted to it in the pleadings must fail. Pulice argues that because Hanlon provides services in his position, there can be no private pecuniary benefit as per the Dodaro and Rebottini decisions. The most recent case in this area is Lewis v. SEC where Commonwealth Court affirmed our decision in Lewis, Order 876, where we found that a Council Member violated the Ethics Law by voting to appoint himself to the compensated position of Mayor in the municipality. See, SEC v. Lewis, Memorandum Opinion of Commonwealth Court filed at 1282 C.D. 1993 on June 22, 1994, allocatur denied by the Pennsylvania Supreme Court at 558 E.D. Allocatur Dkt. 1994 on December 1, 1994. As to the argument that there is no "private" pecuniary benefit in that the process of selecting Hanlon was not a private one, Pulice totally misconstrues the meaning of the term "private" in the definition of conflict. A "private" pecuniary benefit relates to the issue of whether there is an authorization in law for the financial gain. For example, under the former Second Class Township Code, supervisors on three member boards could vote (for) themselves to certain compensated positions. Contrariwise, receipt of benefits which were not authorized would constitute 'private pecuniary benefits. Patterson, Order 1023. Turning to Pulice's argument that the phraseology in the allegation which identifies him as a public employee, rather than a public official, and as School Board President, such does not constitute a fatal defect to the Investigative Division's case. First, it is clear that the use of the word "employee" rather than "official" is nothing more than a clerical error. Second, the position of School Board President encompasses that of School Board Member. Case law establishes that in administrative proceedings the record must be in conformity with the allegations. Pennsy v. Department of State, 594 A.2d 845 (1991). However, the courts have not construed this requirement so restrictively that an insignificant discrepancy in an allegation would violate this principle. Straw v. Human Relations Commission, 308 A.2d 619 (1973). Finally, the allegation was not required to include either designation as a public official or public employee. The designation of public official /public employee is superfluous to the requirement that Pulice be given notice of the nature Pulice, 95- 076 -C2 Page 21 of the allegation against him. Since the allegation meets the legal requirements as set forth in the above judicial precedent, the allegation is legally sufficient, and due process was accorded. The next argument made by Pulice is that there was no use of authority of office because he had no contact with Agnew, Lindquist or others and did not make any motions, seconds, or cast deciding votes. The evidence does establish that Pulice had no contact with Lindquist or Agnew as to the position status change or Hanlon. However, this non - action by Pulice goes to the question of intent. The Courts have held that intent is not a requisite element for an Ethics Law violation. See, Yocabet, infra,. Similarly, as to the fact that Pulice did not make motions, seconds, or cast deciding votes, this is not necessary to establish a use of authority of office. See, Snyder v. SEC, supra. We have already discussed and dispelled Pulice's argument that Hanlon did not receive a salary increase. The argument that there is no private pecuniary benefit because Hanlon's appointment to a different job negates any possibility of a salary increase fails. There is ample evidence of record to establish that a computation was done so that Hanlon would have a salary increase so as to insure his acceptance of the position. It is true that Hanlon went from a position of Athletic Director /Teacher to Athletic Director /Principal, which in part involves different duties. However, the fact remains that Hanlon received a higher salary which is a financial gain. As to Pulice's argument that the legislative purpose as to investigations was not followed as to the process and purpose, we have noted already that the issue is within the jurisdictional thresholds of this Commission and further that the procedures used by the Investigative Division are in conformity with Section 8 of Act 9 of 1989. As to the other miscellaneous arguments made by Pulice, his objection about the failure of the Hearing Officer to participate in the final decision is factually incorrect. Apparently, Pulice is unaware that although the Regulations under Act 170 of 1978 imposed recusal requirements in some instances on a Commissioner who served as Hearing Officer, no such requirement exists in the present Regulations. The Hearing Officer in this case has participated in this decision. As to the argument that questions the recusal of one other Commissioner who knows Pulice, such action was taken by the Commissioner as per the Code of Conduct found in 51 Pa.Code, Chapter 23. Although a party has the right in certain circumstances to request a recusal, it is not Pulice's place to challenge or raise objection when a recusal is made. The last non - repetitive argument that Pulice raises involves a claim of error by the Hearing Officer in allowing evidence as to Hanlon's finances. The Hearing Officer denied Pulice's Motion to Quash the Subpoena for Hanlon's records and his Motion to Exclude Evidence on the basis that such evidence was relevant as to the allegation of the Investigative Division that a financial benefit enured to a member of Pulice's immediate family. We agree. We therefore reject Pulice's arguments as having no foundation in law or fact. Having dispelled Respondent's legal arguments, we must now determine whether the actions of Pulice violated Section 3(a) of Act 9 of 1989. Pulice, 95- 076 -C2 Page 22 In this case, Pulice as a MTSD School Board Member and President was a public official. Snider v. Thornburgh, 436 A.2d 593, 469 Pa. 159 (1981). Second, there was a use of authority of office on the part of Pulice as to his participation in the Personnel Committee meetings and in his votes at the School Board regarding both the adoption of the position of Assistant Principal /Athletic Director, Hanlon's appointment to that position, and the setting of Hanlon's salary in that position. The fact that Pulice did not make motions, second motions, or cast deciding votes is of no consequence, given that the actions that he gild take fully establish the element of use of authority of office under the Ethics Law. ,.gg, Snyder v. SEC, supra; Yocabet v. SEC, 531 A.2d 536 (1987). Pulice's use of the authority of his office obtained a pecuniary benefit consisting of a higher salary paid to Hanlon. Pulice's actions did result in a private pecuniary benefit to his daughter, Paige consisting of the increased compensation to Hanlon which directly benefitted Paige Hanlon through the deposit in joint accounts and through its application to satisfy joint obligations for which she was legally liable. Pulice technically violated Section 3(a) of Act 9 of 1989 when he used the authority of office through his actions on the Personnel Committee and School Board as to the creation of the position of Assistant Principal /Athletic Director, the appointment of Hanlon to that position, and the setting of Hanlon's salary in that position which resulted in a private pecuniary benefit for Pulice's daughter, a member of his immediate family. Although it is true that Pulice did not intend to transgress the Ethics Law, as is evidenced by the testimony of Agnew, Lindquist and others, intent is not a requisite element to establish a violation. See, Yocabet v. SEC, supra. Given the totality of circumstances of this case, we will take no further action. IV. CONCLUSIONS OF LAW: 1. John Pulice, as President of the Millcreek School District Board of Directors, is a public official subject to the provisions of Act 9 of 1989. 2. Pulice technically violated Section 3(a) of Act 9 of 1989 when he used the authority of office by participating in Personnel Committee and Board actions as to the creation of an Assistant Principal /Athletic Director position and the appointment of his son -in -law to that position resulting in a salary increase which resulted in a private pecuniary benefit to his daughter, a member of his immediate family. In Re: John Pulice ORDER NO. 1035 File Docket: 95- 076 -C2 Date Decided: 2/20/97 Date Mailed: 3/7/97 1. John Pulice, as President of the Millcreek School District Board of Directors, technically violated Section 3(a) of Act 9 of 1989 when he used the authority of office by participating in Personnel Committee and Board actions as to the creation of an Assistant Principal /Athletic Director position and the appointment of his son -in -law to that position resulting in a salary increase which resulted in a private pecuniary benefit to his daughter, a member of his immediate family. 2. Based upon the totality of the facts and circumstances, this case is closed and we shall take no further action. BY THE COMMISSION, DANEEN E. REESE, CHAIR Commissioner Roy W. Wilt did not participate in this matter. aoiNU.SAIJ6