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HomeMy WebLinkAbout1039 HolveyIn Re: Roland Holvey STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 95- 018 -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 0.1 ggg,., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was held. The record is complete. 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. Holvey, 95- 018 -C2 Page 2 I. ALLEGATION: That Roland Holvey, a former public employee in his capacity as Director of the Northumberland County Vo- Technical School, violated the following provision of the State Ethics Act (Act 9 of 1989) when he used the authority of his office for the private pecuniary benefit of himself and /or a member of his immediate family by participating in actions and /or decisions which resulted in the hiring of his wife, Barbara Holvey, and when he authorized payments to her without the approval of the Vo- Technical School Board of Directors. II. FINDINGS: Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. §403(a). Section 2. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. §402. A. Pleadings 1. On January 31, 1995, the Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Roland Holvey 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 January 31, 1995. 4. The preliminary inquiry was completed within sixty days. 5. On March 31, 1995, a letter was forwarded to Roland Holvey, by the Executive Director of the State Ethics Commission informing him that a complaint against Holvey, 95- 018 -C2 Page 3 him was received by the Investigative Division and that a full investigation was being commenced. a. A second letter was sent on April 10, 1995. b. Said letter was forwarded by certified mail, no. P 016 239 188. c. The domestic return receipt bore the signature of Barbara Holvey, with a delivery date of April 11, 1995. 6. The full investigation was commenced at the direction of the Executive Director of the State Ethics Commission. 7. Roland H. Holvey was employed as Director of the Northumberland County Vocational - Technical School (Vo -Tech) from June 1986 to October 1994. a. Holvey was terminated from this position. 8. Holvey was certified by the Pennsylvania Department of Education for Vocational Instruction in September 1979. a. Holvey was certified by the Pennsylvania Department of Education as a Vocation Administrative Director in February 1987. 9. The Northumberland County Vo -Tech consists of the Shamokin Area, Line Mountain and Mount Carmel School Districts. a. A Board of Directors for the Vo -Tech is comprised of the 27 members of the three school district's board of directors.. 10. The Operating Agency of the Vo -Tech consists of seven Board of Director members from the various school districts. a. Shamokin Area School District provides three Board Members. b. Two Board Members are from Line Mountain School District. c. Two Board Members are from Mount Carmel School district. 11. A Professional Advisory Committee which consists of superintendents from three school districts meets monthly on average to review the upcoming agenda and the operation of the Vo -Tech. 12. A Superintendent of Record is assigned to monitor the Vo -Tech on a yearly basis. a. The three Superintendents of Schools rotate this assignment each school year. b. Superintendents of Record were assigned as follows: 1992 -1993 Dennis Namey Mount Carmel S.D. 1993 -1994 David Monsour Line Mountain S.D. Holvev, 95- 018 -C2 Page 4 1994 -1995 Gerald Nesvold Shamokin Area S.D. 13. Holvey's duties and responsibilities as Director of the Vo -Tech are outlined in a Position Guide as follows: a. The director shall be responsible to carry out all administrative policies developed by the Northumberland County Operating Agency and Northumberland County School Board, the Northumberland County School Board Authority, and the Professional Advisory Committee in conformity with State and Federal regulations. b. He shall serve as advisor to the Professional Advisory Committee and provide them with the necessary information needed to formulate recommendations to the Northumberland County School Directors and the Northumberland County Operating Agency. c. He shall prepare the Northumberland County Area Vocational- Technical School Directors meeting agenda and present the Professional Advisory Committee recommendations. He shall keep all groups completely informed of the school's activities. d. He shall recruit and recommend in the selection of personnel for the Area Vocational - Technical School. e. He shall meet with and provide the general and craft advisory committee with necessary information and material to assure effective cooperation and operation. All shops shall have craft advisory committees. f. He shall develop the school's Philosophy, Objectives, and Aims. g. He shall develop a curriculum in the framework of the school's philosophy and objectives. h. He shall interpret Vocational Education to the community through an organized public relations program, and provide some of his staff for improvement of public relations. i. He shall maintain a continuous survey of the county to determine the needs for up- dating existing programs or the development of new programs. (Curriculum Development) j. He shall develop new programs when the needs are evident. k. He shall develop new facilities to carry out all programs. I. He shall be informed of all State and Federal requirements. (1) Inform Area Vocational - Technical School board of reimbursements available. (2) Inform Area Vocational- Technical School board of curriculum controls. Holvey, 95- 018 -C2 Page 5 (3) Develop and prepare all State and Federal records. m. He shall assist and counsel industry in the establishment and conduct of training programs for specific training within industry. n. He shall develop adult education programs. o. He shall represent the Area Vocational - Technical School at meetings called by the Department of Public Instruction. He shall serve on evaluation teams at the request of the Middle Atlantic States Evaluation Committee. P. q. He shall develop a continuous teacher in- service training program. r. He shall develop operating budgets and be responsible to the Area Vocational Technical School Board for the financial operation. s. He shall develop personnel appraisal methods along with job position guides. t. He shall develop and carry out teacher evaluation. u. He shall be responsible for all duties set forth in the State - Federal plan for Vocational Education. 14. The Operating Agency has the authority to hire professional employees. a. Vo -Tech teachers are among the professional employees hired by the Operating Agency. b. The Director of the Vo -Tech makes recommendations to the board regarding hirings. 15. Holvey, in his capacity as Director, made recommendations to the Operating Agency regarding the hiring of teachers. 16. Interested applicants would provide Holvey with a resume. 17. All programs and related expenditures conducted at the Vo -Tech School must have board approval prior to the beginning of the program. a. This procedure was approved at the Vo -Tech Operating Agency Meeting of May 1 1, 1988. 18. The Vo -Tech conducts an Adult Prime Time Program which provides skills for individuals seeking employment. a. This program assists individuals in preparing job resumes and developing skills in the job market. 19. On October 10, 1990, the Vo -Tech Operating Agency hired two teachers to work in the Adult Prime Time Program. Holvey, 95- 018 -C2 Page 6 a. Barbara Holvey was one of the two individuals hired by the board. b. Holvey was hired for the period from January 18, 1991, to March 26, 1991, at the rate of $82.25 /per half day. 20. Mrs. Barbara Holvey is the wife of Roland Holvey. a. Barbara Holvey is a teacher by profession. b. She was certified by the Pennsylvania Department of Education to teach Cooperative Education in February 1982. 21. Barbara Holvey was compensated for 46 days at $82.25 per half day for a total of $3,783.50 for the Adult Prime Time Program, during the period January 18, 1991 through March 26, 1991. 22. Barbara Holvey performed additional teaching duties at Vo -Tech School following completion of the Adult Prime time Program on March 26, 1991. 23. Barbara Holvey completed time sheets for the periods that she was employed by the Vo -Tech. a. Barbara Holvey's Employee Time Sheets were approved by Roland Holvey or Business Manager Francis Sobotor to receive payments for her services. b. Roland Holvey signed his approval for his wife to receive payment on 41 Employee Time Sheets. c. Business Manager Francis Sobotor signed his approval for Barbara Holvey to be paid on one Employee Time Sheet, on December 1992 in an amount of $398.34. 24. On Employee Time Sheets for the period ending September 30, 1994, Barbara Holvey claimed credit for a personal day on September 20, 1994. a. Barbara Holvey was paid $18.97 per hour for seven hours for a total of $132.79 on that date. b. Barbara Holvey's time sheet was approved by Roland Holvey. B. Testimony 25. Fran Garrigan is the Solicitor for the Northumberland County Area Vocational Technical School (NCAVTS). a. The NCAVTS Board authorizes the hiring of teachers and staff at the vo- tech. b. Garrigan is involved in the furlough /suspension process of tenured professional employees. Holvey, 95- 018 -C2 Page 7 c. Since Barbara Holvey was not a furloughed employee with a right to recall, she was not subject to furlough, suspension or a recall proceeding. d. A teacher in good standing for two years with satisfactory ratings becomes tenured with a professional employee's contract with the Board. (1) To Garrigan's knowledge, Barbara Holvey had no such contract. e. A teacher at NCAVTS, Mr. Lebo, went through a furlough proceeding and was entitled to recall rights. f. The hiring of Barbara Holvey in 1991 for the Adult Prime Time Program could not qualify her for tenure because the time period of two months was insufficient and possibly the program does not qualify for professional employee tenure. g. Since Barbara Holvey was hired as an instructor, she was not hired as a temporary professional employee. h. Barbara Holvey could not be a tenured employee because one has to be hired as a professional temporary employee to achieve tenure. i. Garrigan is of the legal opinion that Barbara Holvey is not a tenured employee: Well, my statement is this, she [Barbara Holvey] couldn't be a tenured employee. And the reason is you have to be hired as a professional temporary employee to start your tenure running. She was not hired as a professional — temporary professional employee. She was not hired as a temporary professional employee. That means — in my opinion, that means she was not hired as a temporary professional employee. She was hired as an instructor. (Tr. at 40 -41, 43). 26. Francis Sobotor is the business manager for NCAVTS since December, 1987. a. Sobotor has duties regarding financial records, the Board, minutes, the non - professional staff and oversight of vo -tech operations. b. Holvey was his supervisor from December, 1987 to October, 1994. c. The NCAVTS Board is composed of 27 individuals, nine from each of the three participating school districts. d. Three superintendents, one from each participating school district, serve in the vo -tech. Holvey, 95- 018 -C2 Page 8 (1) The Professional Advisory Committee (PAC), comprised of the three Superintendents, Holvey, and Sobotor, met monthly, usually before the Board meeting. e. By motion of the Board, Barbara Holvey was hired as an instructor at the vo -tech for the Adult Prime Time Program (APTP) from January 18, 1991 to March 26, 1991 at the rate of $82.25 per half day. (1) Barbara Holvey was not hired to teach the whole course. f. APTP was funded from an allocation from the Department of Education. (1) This was not for normal student programs, only adults. g. Barbara Holvey's employment concluded with the vo -tech on March 26, 1991 since the funding only ran for that year. h. When Barbara Holvey again began teaching at the vo -tech in September, 1992, she did not have Board approval. (1) She taught a variety of programs in the following two years. i. Exhibit ID -9 reflects payments made to Barbara Holvey for teaching at NCAVTS. (1) The $ 1,859.06 reflected on the document does not include subsequent payment(s) of $929.53. (a) The total payments were $2,788.59. As to the Dislocated Worker Job Skill Program that Barbara Holvey taught from September 8, 1992 to January 29, 1993, the Board minutes reflect no authorization to hire Barbara Holvey. (1) Once Holvey secured a grant for the course, he had his spouse teach it. (2) This course was not open to the student body of the vo -tech. k. As to the SPOC Computer -Aided Instruction Program, it was an adult program for welfare - eligible individuals and not open to the student body. (1) Barbara Holvey taught the course without Board authorization. (a) Holvey had Barbara Holvey teach the course after he secured grant funding. Carl Perkins is a Department of Education Program with federal funding. (1) The Program funds a guidance counselor and computer resource program. (a) Holvey had Barbara Holvey work in this Program. Holvey, 95- 018 -C2 Page 9 [ 1 ] The Board had no knowledge nor gave authority to hire Barbara Holvey. m. As to the Adult Prime Time Program, Barbara Holvey was employed from August 29, 1994 to September 30, 1994. (1) The Board gave no authorization to hire or pay Barbara Holvey for that position. n. There is no record of a contract at the vo -tech for Barbara Holvey as a tenured professional employee. o. From September, 1992, Sobotor told Holvey that it was not appropriate for Holvey to hire his spouse without Board approval. (1) In September, 1994, Sobotor informed the superintendent about Holvey's action of employing his spouse to teach at the vo -tech. (a) Sobotor told Holvey that he (Sobotor) might lose his job by being "pull[ed]" with Holvey as to the programs taught by Barbara Holvey. [ 1 ] Holvey responded to Sobotor that he would take full responsibility. P. The Dislocated Worker Program, the SPOC Computer -Aided instruction, and Carl Perkins were part -time teaching jobs. (1) Holvey intended to make the Adult Prime Time Program a full -time position for the school year. (a) Unlike other programs which had approval through funding, there was no program from which to take the money. (b) Holvey used school revenues to pay Barbara Holvey for this position. q. Barbara Holvey was not hired by the Board to be a full -time employee. r. Although Barbara Holvey claimed a personal day on September 20, 1994, only full -time employees are entitled to receive personal days. s. To the best of Sobotor's knowledge, the renewal of these programs did not come before the operating agency. t. Holvey was responsible for putting the programs together. u. In 1994, Holvey had Barbara Holvey teach without a budget being in place for the program. (1) When Sobotor learned that Holvey hired Barbara Holvey full -time for the 1994/95 Program, he (Sobotor) raised the following concerns with Holvey: Holvey, 95- 018 -C2 Page 10 At that time I went into him one last time. I felt I owed him that. We had been friends since 1987. I went in and told him that I feared for my job. And he acted dumb like why, he's not doing anything wrong. And I told him that, you know, this was — number one, you can't take your wife full -time. There was no set program to take this money out of. I'm not saying that the other programs were right or wrong. But at least there was a program that somebody else approved, maybe not the operating agency, but somebody else approved it through the source of funding; the job training or Department of Ed even though he had his wife do the responsibilities of it. There was a budget page that backed this up. This source of funding here we received individual contracts that were going to be approximately 20 adults in our school that year. Each had about a $4,000 tuition. So there was going to be a so- called pot of gold, if you want to call it, to the tune $80,000 that year of extra revenue. Okay. That would be shared by the individual participating school districts. And that's when I found out he wanted Mrs. Holvey now because we had this large extra revenue, he wanted to pay her full -time that year. I did not find that out directly. The office staff told me this. v. For the part-time instructor position in 1990 -1991, Holvey wrote the ad which indicated that a teaching certificate was required. (1) Holvey personally handled the ad. (a) The Department of Education does not necessarily require a certificate for this position. 27. David Monsour was the Superintendent of the Montour School District in Northumberland County from July, 1992 through June, 1996. a. Monsour had duties of being the CEO of all programs in the District and coordinating the NCAVTS. b. As to the vo -tech, Monsour was involved with the programs with the NCAVTS Director and with the superintendents of the participating schools. (1) On a rotating basis, Monsour was superintendent of record. c. Faculty and staff at the vo -tech would be hired by the Joint Operating Committee or the Board based upon recommendations from the administration. Holvey, 95- 018 -C2 Page 11 d. During the time period in question, Barbara Holvey was not hired by the Board (1) Barbara Holvey was only hired by the Board to teach the Adult Prime Time Program in 1991. (2) Barbara Holvey was not hired by the Board to teach the Dislocated Worker Program, the SPOC Computer -Aided Program, the Carl Perkins Program, or the Adult Prime Time Program in 1994. e. When Monsour learned the Barbara Holvey was working in the Carl Perkins Program, he and the other Superintendents asked Holvey whether Barbara Holvey was working as a substitute but being paid a professional wage. (1) Holvey initially denied such action. (a) When Holvey was confronted with the payroll records where he authorized payment, Holvey tried to blame the business manager. (b) Holvey stated that if the Superintendents would have hired his wife, he (Holvey) would not have had to take such action. (2) The superintendent brought the matter to the Board which gave Holvey a hearing and then terminated him. (a) Holvey has appealed his termination to the Secretary of Education. (1) The matter is pending. f. Monsour did not get involved in any detail with adult programs at NCAVTS. g. Holvey never broached the subject with Monsour about hiring Barbara Holvey. 28. Dennis Namey is the Superintendent of the Mount Carmel Area School District since July, 1989. a. His duties are to oversee policies of the school district, to have involvement in its daily operation and to have some involvement with the vo -tech director. b. Namey and the other Superintendents sit on an advisory committee which meets monthly with the vo -tech director. c. Namey does not believe that Barbara Holvey was hired as a full -time teacher at the vo -tech. Holvey, 95- 018 -C2 Page 12 d. For hiring at the vo -tech, the Director only has the authority to interview and make a recommendation to the Board. e. Permanent certification and tenure for teachers are two different concepts. (1) A teacher gets a temporary certificate which is good for six years of teaching. (a) If the teacher gets 24 credits in the six year period, the certificate becomes permanent. (2) A temporary professional employee with two years of satisfactory ratings becomes a professional employee. f. When the Superintendents confronted Holvey about his spouse, Holvey responded that if they had hired his wife, he would not have had to take his own action. (1) Namey construed Holvey's remark to mean that because Holvey's spouse was not hired by one of the districts, Holvey took action. g. Namey relied on Holvey to run the day -to -day operations of the vo -tech. h. Barbara Holvey was not officially employed by the Board for two years and was not given any teaching reviews. 29. Gerald Nesvold is the Superintendent of the Shamokin Area School District since 1993. a. Three Superintendents of the participating school districts advise the one Superintendent of record for the NCAVTS. b. The vo -tech Director reports to the Superintendent of record who in turn reports to the NCAVTS Board. c. During his tenure since 1993, the Board did not hire Barbara Holvey. (1) The vo -tech Board may only hire. d. When the Superintendents confronted Holvey about his spouse working at the vo -tech, Holvey initially responded that he did not hire her and she was not working there. (1) When Holvey was shown the time sheets, he changed his story. e. Nesvold became concerned when he saw the time sheets for Barbara Holvey and could not find that she was hired by the Board. f. As to Nesvold's knowledge, Barbara Holvey was not a tenured employee. (1) Her original hire was not for a professional position. Holvey, 95- 018 -C2 Page 13 g. (2) Barbara Holvey did not go through a review process with the vo- tech. In the meeting between the Superintendents and Holvey prior to his termination, there were other issues in addition to the hiring of Barbara Holvey. 30. Barbara Holvey is the spouse of Holvey. a. Barbara Holvey testified that she received tenure with the Wilson Area School District "by serving] three years there . . ." b. Barbara Holvey responded to an advertised vacancy position at the vo- tech in 1990. c. According to Barbara Holvey's testimony, she considered the Dislocated Worker Program as full -time. d. For the Adult Prime Time Program, Barbara Holvey worked all day. e. The Program Barbara Holvey was hired to teach ran from January 18, 1991 to March 26, 1991. f. Barbara Holvey did not receive any letters of hire from the vo -tech to teach the Dislocated Worker Job Skill Program, the SPOC Computer - Aided Instruction Program, or the Adult Prime Time Program. g. The Dislocated Worker Job Skill Program ran from September, 1992 to June, 1993. h. The SPOC Computer -Aided Instruction Program ran from February, 1993 to June, 1993. (1) It also ran from September, 1993 to June, 1994. (a) Barbara Holvey taught mornings from 9:00 to 1 1:30. The Carl Perkins Program, from May, 1994 to June, 1994, was part- time. J. The Adult Prime Time Program that started in August, 1994 operated under full -day hours. k. Barbara Holvey does not have a professional employee's contract with the NCAVTS. I. Barbara Holvey had no furlough /suspension hearing after she taught at the vo -tech in 1991. m. From September, 1992, Holvey told Barbara Holvey to teach at the vo- tech. Holvey, 95- 018 -C2 Page 14 (1) Barbara Holvey never received a review of her teaching performance at the vo -tech. 31. Holvey is the former Director of the NCAVTS. a. Holvey was terminated in the fall of 1994. b. Holvey had discussions with Solicitor Garrigan about the recall status of Mr. Lebo who had taught at the vo -tech. c. Holvey called his spouse Barbara to teach at the vo -tech. d. Holvey testified that he thought his spouse Barbara had recall rights at the vo -tech. e. The Superintendent did not question funding or employees until an October, 1994 meeting with Holvey. f. Holvey testified that he was confused at the meeting with the Superintendents concerning the hiring of his spouse because of the way they confronted him. (1) Holvey insists that he did not deny that his spouse was working at the vo -tech but merely that he did anything wrong. Holvey testified that he told the Superintendents that he would not have had to hire his spouse if they had hired her. (1) Holvey asserts he made the statement because Barbara Holvey was not hired given his (Holvey's) position with the vo -tech. h. But for Holvey, Barbara Holvey would not have worked in the vo -tech programs. g. i. Barbara Holvey did not have a professional employee's contract with the vo -tech. j. Holvey did not advise the Board that he hired his spouse to work in the various vo -tech programs. k. Barbara Holvey did not apply to the Board for recall rights. Barbara Holvey's name was not brought before the Board as to the Dislocated Worker Program, the SPOC Computer -Aided Instruction Program, the Carl Perkins Program, or Adult Prime Time Program. (1) Holvey signed the time sheets for his spouse as to her work in the Programs. (2) Professional employees at the vo -tech receive performance reviews but Barbara Holvey never received any performance review. Holvey, 95- 018 -C2 Page 15 (3) Barbara Holvey did not receive performance reviews for her work in the Programs. (4) Holvey did not tell the Board that his spouse was working in these Programs. m. Holvey testified that the Superintendents knew Barbara Holvey was hired and was receiving a salary. n. At the monthly Board meetings, the budget showed expenditures but not the names of teachers as to salaries paid. o. Holvey argues that after the Board of NCAVTS hired Barbara Holvey for teaching from January, 1991 to March, 1991, she, being certified, had recall rights. C. Documents 32. ID -5, page 2, is a photocopy of a Professional Certificate issued by the Pennsylvania Department of Education to Barbara S. Helm (Holvey) in the area of elementary and cooperative education. 33. ID -6 is a photocopy of the minutes of the NCAVTS Board for May, 11, 1988. a. The Board passed a motion ". . . that all programs and related expenditures conducted at the Northumberland County Area Vocational - Technical School must have Board approval prior to the beginning of the program." 34. ID -7 is a photocopy of the minutes of the Board of NCAVTS for October 10, 1990. a. The Board passed a motion which provided in part: ". . . employ Barbara Holvey as Instructor for the Adult Prime Time Program for the periods January 18, 1991 to March 26, 1991 at a rate of $82.25 per half day." 35. ID -8 is a photocopy of a letter from Sobotor to Barbara Holvey dated October 11, 1990 which states: On Wednesday, October 10th, the Joint Operating Agency of the Northumberland county Area Vocational - Technical School voted to employ you as Instructor of the Adult Prime Time Program for the periods January 18, 1991 to March 26, 1991 at a rate of $82.25 per half day. We would appreciate your acknowledgement and acceptance of the above terms by signing a copy of this letter and returning it to us. 36. ID -9 is a photocopy of summaries and time sheets for Barbara Holvey at the NCAVTS. Holvey, 95- 018 -C2 Page 16 a. The gross pay received by Barbara Holvey for teaching the Dislocated Worker Job Skill Program from September, 1992 to January, 1993 was $1 1,419.08 (ID -9A). b. The gross pay received by Barbara Holvey for teaching the SPOC Computer -Aided Program from February, 1993 to June, 1993 was $11,153.52 (ID -9B). c. The gross pay received by Barbara Holvey for teaching the SPOC Computer -Aided Program from September, 1993 to June, 1994 was $6,829.92 (ID -9C). d. The gross pay received by Barbara Holvey for teaching the Carl Perkins Program from May, 1994 to June, 1994 was $2,295.37 (ID -9D). e. The gross pay received by Barbara Holvey for teaching the Adult Prime Time Program from August, 1994 to conclusion was $2,788.59 (ID -9E, Finding 26i). f. All time sheets of Barbara Holvey, except for two approved by Sobotor, were approved by Holvey. 37. ID -10 is a photocopy of NCAVTS checks made payable to Barbara Holvey for work at the vo -tech. a. The net payments to Barbara Holvey for teaching the Dislocated Worker Job Skill Program from September, 1992 to January, 1993 was $8,465.85 (ID -10A). b. The net payments to Barbara Holvey for teaching the SPOC Computer - Aided Program from February, 1993 to June, 1993 was $7,329.24 (ID- 10B). c. The net payments to Barbara Holvey for teaching the SPOC Computer - Aided Program from September, 1993 to June, 1994 was $6,785.67 (ID -10C). d. There are no checks of record for the Carl Perkins Program. e. The net payments to Barbara Holvey for teaching the Adult Prime Time Program from August, 1994 to conclusion was $1,954.87 (ID -10D). 38. The private pecuniary benefit obtained by Barbara Holvey from being hired by Holvey to teach certain programs at NCAVTS are as follows: Program Date Net Pay Dislocated Worker Job Skill Program 9/92 - 1/93 $8,465.85 SPOC Computer -Aided Program 2/93 - 6/93 $7,329.24 SPOC Computer -Aided Program 9/93 - 6/94 $6,785.67 Carl Perkins Program 5/94 - 6/94 No documentation of Holvey, 95- 018 -C2 Page 17 record as to net pay Adult Prime Time Program 8/94 to conclusion $1,954.87 a. Barbara Holvey received $ 132.79 for a personal day on September 20, 1994 which she could not claim but was approved by Holvey. 39. Barbara Holvey is not a professional employee /tenured teacher. 40. The NCAVTS hired Barbara Holvey to a temporary position to teach the Adult Prime Time Program from January 18, 1991 to March 26, 1991. III. DISCUSSION: At all times relevant to this matter, the Respondent, Roland Holvey, hereinafter Holvey, has been a public employee 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, at seq. The issue before us is whether Holvey 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 himself or a member of his immediate family by participating in actions and /or decisions which resulted in the hiring of his wife, Barbara Holvey, and when he authorized payments to her without the approval of the Vo- Technical School Board of Directors. 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. facts. The term "conflict of interest" under Act 9 of 1989 is defined above. Having noted the issues and applicable law, we shall now summarize the salient Holvey was employed as the Director of the Northumberland County Area Vocational- Technical School (NCAVTS) from June, 1986 until he was terminated in October, 1994. NCAVTS is a Vocational - Technical School created by the Shamokin Area, Line Mountain and Mount Carmel School Districts with a 27 member Board of Directors from the Boards of the three participating school districts. In addition, NCAVTS has a Professional Advisory Committee which consists of Superintendents from the three school districts. NCAVTS also has a Board of Directors, known as the Operating Agency, which consists of three members from Shamokin Area School District, two board members from Line Mountain School District and two members from Mount Carmel School District. NCAVTS has a Superintendent of Record who is one of the three Superintendents from the participating schools assigned on a yearly rotational basis. Holvey, as NCAVTS Director, had a number of administrative duties and responsibilities which are delineated in Fact Finding 13. Holvey did not have authority to hire professional employees but could make recommendations to the Operating Agency. The NCAVTS Operating Agency is the sole authority for hiring professional employees. In addition, all programs and expenditures for NCAVTS require Board approval. Holvey, 95- 018 -C2 Page 18 In October, 1990, NCAVTS conducted an Adult Prime Time Program that was designed to teach skills to persons seeking employment. The NCAVTS Operating Agency hired Barbara Holvey to teach that program for the period from January 18, 1991 to March 26, 1991 at the rate of $82.25 per half day. Barbara Holvey is the spouse of Holvey and is a teacher who has a Certificate from the Pennsylvania Department of Education in the area of cooperative education. Between the fall of 1992 and 1994, Barbara Holvey taught other programs at NCAVTS. However, as to these latter programs, Barbara Holvey was not hired by the Operating Agency but was merely instructed by her husband Holvey to teach the programs. Parenthetically, there was no furlough /suspension hearing for Barbara Holvey after she finished teaching the adult program course in March, 1991. Further, Barbara Holvey never received any reviews of teaching performance at NCAVTS. The following are the different programs that Barbara Holvey taught at NCAVTS between 1992 and 1994 as well as the dates she taught those programs and the compensation she received: Program Dislocated Worker Job Skill Program SPOC Computer -Aided Program SPOC Computer -Aided Program Carl Perkins Program Adult Prime Time Program Date Gross Pay 9/92 - 1 /93 $11,419.08 2/93 - 6/93 $1 1,153.52 9/93 - 6/94 $6,829.92 5/94 - 6/94 $2,295.37 8/94 to conclusion $2.788.59 $34,486.48 During the time that Holvey hired his wife to teach these programs at NCAVTS, Francis Sobotor, who is the NCAVTS Business Manager and a subordinate to Holvey, had major concerns because Holvey did not obtain Operating Agency approval to hire Barbara Holvey and did so without advising the Superintendent of Record, the Professional Advisory Committee, the Operating Agency, or the Board of Directors of NCAVTS. Sobotor discussed the situation with Holvey who responded that he (Holvey) would take full responsibility for his actions. In 1994, Sobotor's anxiety about Holvey's actions became more pronounced after Holvey hired Barbara Holvey without a program budget in place. Thus, although the prior programs that Holvey had his spouse teach had program funding, Holvey in 1994 hired his wife without any program or funding approved by the Operating Agency. Sobotor, believing a more serious infraction occurred, confronted Holvey: At that time I went into him one last time. I felt I owed him that. We had been friends since 1987. I went in and told him that I feared for my job. And he acted dumb like why, he's not doing anything wrong. And I told him that, you know, this was — number one, you can't take your wife full -time. There was no set program to take this money out of. I'm not saying that the other programs were right or wrong. But at least there was a program that somebody else approved, maybe not the operating agency, but somebody else approved it through the source of funding; the job training or Department of Ed even though he had his wife do the responsibilities of it. There was a budget page that backed this up. This source of funding here we received individual contracts that were going to be approximately 20 adults in our school that year. Each had about a Holvey, 95- 018 -C2 Page 19 $4,000 tuition. So there was going to be a so- called pot of gold, if you want to call it, to the tune $80,000 that year of extra revenue. Okay. That would be shared by the individual participating school districts. And that's when I found out he wanted Mrs. Holvey now because we had this large extra revenue, he wanted to pay her full -time that year. I did not find that out directly. The office staff told me this. At that juncture, Sobotor informed the Superintendent of Record as to what occurred. The three Superintendents reviewed the matter and confronted Holvey regarding his action of hiring his wife, as well as certain other matters. Holvey initially denied that he took such action. When the Superintendents presented the time sheets as to Barbara Holvey teaching at NCAVTS, Holvey attempted to blame Sobotor. Finally, Holvey admitted to such action but exclaimed to the Superintendents that if they had hired Barbara Holvey in one of the School Districts, he (Holvey) would not have had to hire her at NCAVTS. Shortly thereafter, Holvey was given a hearing followed by his termination. Holvey has appealed his termination to the Secretary of the Board of Education which is currently pending. Having summarized the above relevant facts, we must now determine whether the actions of Holvey violated Section 3(a) of Act 9 of 1989. In order to establish a violation, Section 3(a) requires a use of the authority of office or confidential information by a public official /employee for the private pecuniary benefit of himself, a member of his immediate family, or business with which he or a member of his immediate family is associated. Holvey admits that he took action to hire his wife to teach at NCAVTS during the years 1992 through 1994. However, Holvey offers a defense that his action did not violate Section 3(a) of Act 9 of 1989 on the theory that his wife, Barbara Holvey, was a professional employee /tenured teacher so that she had automatic recall rights to teach these courses in 1992 through 1994. Although we understand Holvey's argument in general, namely, that Holvey had no discretion as to hiring his wife on theory that she was a tenured teacher /professional employee, we cannot discern the rationale for his argument. Accordingly, we shall make an analysis of the tenure concept in the context of our application of the above facts to Section 3(a) of Act 9 of 1989. In applying the provisions of Section 3(a) of Act 9 of 1989 to the instant matter, three of the four component elements for a Section 3(a) violation readily exist. First, Holvey as the Director of NCAVTS was clearly a public employee. 65 P.S. §402, 51 Pa.Code §1.1. Second, there was a use of authority of office on the part of Holvey in this case. But for the fact that Holvey was Director of NCAVTS, he would not have been a position through his own action to hire his wife, Barbara, to teach these adult programs in the years 1992 -1994. Lewis, Order 876, affirmed in Lewis v. SEC, Memorandum Opinion filed June 22, 1994 in Commonwealth Court at 1282 C.D. 1993, allocatur denied by Pennsylvania Supreme Court on December 1, 1994 at 558 E.D. Alloc. Dkt. 1994. Further, Holvey also used the authority of office when he signed almost all of the time sheets for Barbara Holvey. Third, Barbara Holvey as his spouse is a member of his immediate family as that term is defined under the Ethics Law. 65 P.S. §402. The fourth component part of Section 3(a), the element of obtaining a private pecuniary benefit, is the sole issue before us. Holvey, 95- 018 -C2 Page 20 The issue of private pecuniary benefit turns upon whether there was an authorization in law to hire Barbara Holvey for the programs in 1992 -1994 at NCAVTS. Holvey seems to argue that the hiring was not merely authorized in law but actually directed on the theory that Barbara Holvey under the Public School Code had recall rights as a professional employee /tenured teacher. Under the Public School Code, a temporary professional employee who has two years (currently three years) of satisfactory service attains the position of a professional employee. 24 P.S. §11-1108(b). Although Holvey argues that Barbara Holvey had tenure status, it is unclear whether his theory is that Barbara Holvey had tenure from prior employment with some other school district or whether tenure was obtained by teaching at NCAVTS. We shall consider both of these theories. Barbara Holvey testified that she was tenured when she "served'" three years in some other school district. However, there is nothing of record, other than Barbara Holvey's assertion, that she was a tenured teacher at another district: no professional employee contract was introduced into evidence as to Barbara Holvey; no evidence was presented as to what, if anything, she taught (type of courses); no evidence was presented as to whom she taught (students or adults); no evidence was presented as to teaching status (full, part -time, substitute); and no evidence was presented as to the length of service (two consecutive years or periods of less than 2 years totalling two years). If Holvey is arguing that Barbara Holvey was tenured at the time she was hired in 1991, that theory fails because there is insufficient evidence of record. Accordingly, we find that Barbara Holvey was not a professional employee /tenured teacher when she was hired to teach the adult program in 1991 by the NCAVTS Operating Agency. The other theory for Barbara Holvey to be a professional employee would be through her teaching at NCAVTS. However, that theory fails for many reasons. First, Barbara Holvey was only hired to teach approximately two months at NCAVTS by the Operating Agency which fails to meet the then applicable two year requirement for attaining tenure. When Barbara Holvey completed teaching in March of 1991, she was not given a furlough proceeding that is required for professional employees because she was a temporary not tenured employee. Barbara Holvey was only hired on a temporary basis and was not given any rating for her teaching in that two month period. Parenthetically, we also note that Barbara Holvey taught adult education classes rather than vo -tech students from the three participating school districts. It is therefore clear that when Holvey in 1992 first acted to hire his wife to teach the adult program at NCAVTS, Barbara Holvey was not a professional employee /tenured teacher and consequently did not have any automatic recall rights. Holvey used his position to hire Barbara Holvey for such adult programs in 1992 -1994. Accordingly, we find that Holvey violated Section 3(a) of Act 9 of 1989 when he used the authority of office to obtain a private pecuniary benefit for his wife by hiring her to teach adult programs at NCAVTS in 1992 through 1994. Koslow v. SEC, 116 Pa. Commw. Ct. 19, 540 A.2d 1374, allocatur denied, 553 A.2d 971 (1988); Yocabet v. SEC, 531 A.2d 536 (1987). We recognize that there is a body of case law on the issue of tenure status. Thus, the courts have considered the rights of existing tenured part -time professional employees (Fontaine v. Wissahickson School District, 658 A.2d 851 (1995)); the failure to rate a temporary professional employee in the then applicable two year period (Hosier v. Bellefonte Area School District, 395 A.2d 289 (1978)); the initial hiring Holvey, 95- 018 -C2 Page 21 status of a teacher (Franson v. Bald Eagle Area School District, 668 A.2d 633 (1995)); and the absence of a written contract (Commonwealth Department of Education v. Jersey Shore Area School District, 481 Pa. 356, 392 A.2d 1331 (1978)). However, our review of the Pennsylvania decisions confirm the requirement of two years of service with satisfactory rating to achieve tenure. Jersey Shore, supra. In this case, because Barbara Holvey taught only two months, she was not tenured when Holvey hired her in 1992 through 1994. As a postscript to the above, the acceptance of Holvey's tenure theory would result in an impossible administrative scenario in the public school system, that is, if teaching an adult program on a temporary basis for two months at a vo -tech creates tenure with recall rights, we can do no more than recite the concern of the Pennsylvania Supreme Court in Commonwealth v. School District of City of Sunbury, 335 Pa. 6, 6 A.2d 279 (1939): Iii. at 282. If the Act were construed to eliminate the possibility of employing supply teachers under the circumstances of the instant case, the district would be unduly restricted in its power to secure capable and competent teachers and the discretion of the board over its educational policies would be largely eliminated. The Act does not permit an interpretation which would result in permanent tenure being secured at the sacrifice of sensible school administration. We also find a violation of Section 3(a) of Act 9 of 1989 when Holvey approved payment of a personal day that Barbara Holvey claimed on September 20, 1994 in the amount of $132.79. Since Barbara Holvey was not a tenured teacher, she was not entitled to a paid personal day. Clearly, Holvey used the authority of office by approving the payment of such amount. The amount was a private pecuniary benefit because only professional employees were entitled to paid personal days. Lastly, that pecuniary benefit enured to Barbara Holvey as a member of Holvey's immediate family. Turning to the matter of restitution, Section 7(13) of Act 9 of 1989, 65 P.S. §407(13), specifically empowers this Commission to impose restitution in those instances where a public official /employee has obtained a financial gain in violation of the Ethics Law. Section 9(c) of the Ethics Law also directs that any person who obtains a financial gain for violating the Act shall pay a sum equal to three times the amount of financial gain into the State Treasury or Treasury of the political subdivision. We believe that a financial payback in this case is warranted given the egregious nature of his conduct. First, Holvey's actions escalated from 1992, when he hired his wife to teach in existing funded programs, to 1994 when he hired her without approved program budget funding. Second, even though Sobotor advised Holvey of the impropriety of hiring his wife, Holvey ignored Sobotor's pleas. Thus, although Holvey was made aware of the impropriety of his actions, he nevertheless continued hiring Barbara Holvey to teach. Finally, when the Superintendents confronted Holvey about the situation, he first denied it and then attempted to blame Sobotor when confronted with the time records. Holvey defiantly told the Superintendents that because they had not hired his spouse in one of the school districts, he took such action on his own. It is clear that Holvey considered himself to be the final authority of operations and hiring at NCAVTS. Such conduct reflects a callous disregard of his public position and a violation of the public trust. We are particularly dismayed as to Holvey, 95- 018 -C2 Page 22 the hiring of Barbara Holvey by Holvey in 1994 because at that point Holvey hired her to teach without a budgeted program in place. For that particular program, Barbara Holvey received $1,954.87 (net) in compensation. A treble penalty in the amount of $5,864.61 is imposed upon Holvey which is payable to NCAVTS through this Commission within thirty days of the date of issuance of this Order. Failure to comply will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Roland Holvey, as Director of the Northumberland County Vo- Technical School, was a public employee subject to the provisions of Act 9 of 1989. 2. Holvey violated Section 3(a) of Act 9 of 1989 when he used the authority of office to obtain a private pecuniary benefit for his spouse Barbara Holvey when he hired her, without operating agency approval, to teach adult courses at NCAVTS. 3. Holvey violated Section 3(a) of Act 9 of 1989 when he approved a paid personal day for Barbara Holvey at NCAVTS in that only professional employees were entitled to paid personal days. 4. The private pecuniary benefit received as to teaching the 1994 adult program was in the net amount of $1,954.87. In Re: Roland Holvey File Docket: 95- 018 -C2 Date Decided: 2/20/97 Date Mailed: 3/7/97 ORDER NO. 1039 1. Roland Holvey, as Director of the Northumberland County Vo- Technical School, violated Section 3(a) of Act 9 of 1989 when he used the authority of office to obtain a private pecuniary benefit for his spouse Barbara Holvey when he hired her, without operating agency approval, to teach adult courses at NCAVTS. 2. Holvey violated Section 3(a) of Act 9 of 1989 when he approved a paid personal day for Barbara Holvey at NCAVTS in that only professional employees were entitled to paid personal days. 3. Holvey is directed to pay a treble penalty in the amount of $5,864.61 which is payable to NCAVTS through this Commission within thirty days of the date of issuance of this Order. Failure to comply will result in the institution of an order enforcement action. BY THE COMMISSION, etAipKJ6 auQ DANEEN E. REESE, CHAIR