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HomeMy WebLinkAbout1087 KistlerIn Re: Forrest Kistler STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: X -ref: Date Decided: Date Mailed: 97- 044-C2 Order No. 1087 7/23/98 8/7/98 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Allan M. Kluger Monsignor Joseph. G. Quinn Boyd E. Wolff Julius Uehlein Louis W. Fryman 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., 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 waived. The record is complete. A Consent Agreement was submitted by the parties to the Commission for consideration which was subsequently approved. 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. Kistler, 97- 044 -C2 Page 2 1. ALLEGATION: That the Respondent, Forrest Kistler, violated Section 3(a) of the Ethics Law when he used the authority of his office for a private pecuniary benefit by participating in actions to set and approve wages of the township roadmaster, who serves as his immediate supervisor on the township road department, at a time when Kistler's position and /or salary was being considered by the township supervisors. II. FINDINGS: 1. Forrest D. Kistler served as a Weisenberg Township, Lehigh County, Auditor from 1954 to June 6, 1996. a. Kistler also served as the Township Democratic Committeeman during that time period. 2. Kistler owned Kistler's Country Market, a butcher shop, from 1950 to 1994. a. The store went out of business in 1994. 3. Kistler participated in auditing the Township records /books and setting the salaries and benefits for Township Supervisors during the time period from 1954 to 1996. 4. Kistler served as the Secretary for the Board of Auditors in 1994, 1995 and 1996 during which time he prepared the handwritten minutes of the Auditor's meetings. 5. During the winter of 1993/1994 Kistler worked part time for the Township Road Department .removing snow from the Township highways. 6. The minutes of the January 3, 1994 Board of Supervisors meeting indicates Supervisor J. Palmer Balliet made a motion to hire temporary help as needed at $8.30 per hour. a. Supervisors Arlan Bittner, Thomas Wehr and Balliet voted to approve the motion. 7. Bittner has served as a Weisenberg Township supervisor since 1984 and has held the position of Township Roadmaster since 1990. 8. Bittner had the authority to choose employees for the Township Road Department. a. Bittner would select whom he wanted to work on the Township Road Department and then present the information to the other supervisors. b. The supervisors would then approve Bittner's selection at a Township Supervisors meeting. 9. On April 7, 1994 Bittner made a motion to hire Forrest Kistler to assist the Township Perc Testers with their work. 10. On November 27, 1994 Kistler applied for a full time position with the Weisenberg Township Road Department. Kistler, 97- 044 -C2 Page 3 a. Kistler filled out an application form and submitted it to Bittner. 11. At the January 3, 1995 Weisenberg Township Board of Supervisors Reorganizational meeting Supervisors Balliet, Wehr and Bittner voted to set the salary of Township road department employees at $10.80, per hour, in addition to a 6% Pension Plan contribution along with a number of other benefits pertaining to overtime and paid leave. 12. At the January 3, 1995 Board of Auditors meeting Auditor Robert Fenstermaker made a motion to increase working supervisors pay from $13.20 per hour to $13.60 per hour and Auditor Kistler made a motion to increase Roadmaster Bittner's salary from $14.00 per hour, to $14.40 per hour. a. Auditors Fenstermaker, Bittner and Thomas Hails voted in favor of the increase in salaries. 13. Kistler, along with the other Auditors, participated in the audit of the Township records, including the Township road department records, for 1994. 14. In February of 1995 Bittner informed Supervisors Balliet and Wehr that he wanted to hire Kistler for a position on the Township road department. 15. On March 2, 1995 Supervisor Balliet made a motion to hire Kistler as an addition to the Township road maintenance crew at the hourly rate of $10.80 with all of the benefits set by the Township supervisors at the January of 1995 Supervisors Reorganizational Meeting. a. The motion was seconded by Supervisor Wehr and then approved with Balliet, Wehr and Bittner voting in favor. 16. Kistler's hiring increased the number of road department employees from three (3) to four (4), in addition to Roadmaster Bittner. 17. Roadmaster Bittner was Kistler's immediate supervisor on the road department from March of 1995 to January of 1998 when Bittner was removed by the Board of Supervisors from the Roadmaster position. 18. At the January 2, 1996 Weisenberg Township Board of Supervisors Reorganizational Meeting Bittner made a motion, seconded by Helen Fenstermaker, to rehire the road department employees, including Kistler, at the hourly rate of $11.20 per hour, and increased the Pension Plan contributions from 6% to 12 %. a. The Board of Supervisors also set benefits for the employees pertaining to overtime and paid leave. 19. On January 3, 1996 the Weisenberg Township Board of Auditors met to set the salaries for working supervisors and the Township Roadmaster. 20. The Pension Fund was discussed and Kistler made a motion to make the contribution to the Roadmaster's pension fund equal to contributions made to the Township road department employees at 12 %. Kistler, 97- 044 -C2 Page 4 a. The motion passed by a unanimous vote of Auditors Kistler, Robert Fenstermaker and Thomas Hails. 21. Auditor Hails made a motion to increase Roadmaster Bittner's hourly rate from $14.40 per hour, to $ 16.00 per hour. a. Kistler seconded Hails' motion and Robert Fenstermaker abstained. 22. Bittner was present at the meeting and suggested his salary for the roadmaster position be set at $15.60, per hour. a. Hails then rescinded his motion for the $16.00 per hour salary. 23. Kistler made the motion to set the Roadmaster's salary at $15.60 per hour. 24. The minutes, prepared by Kistler, indicate Robert Fenstermaker seconded the motion by stating "he could live with that" and the motion passed unanimously. 25. Kistler, along with the other Auditors, participated in auditing the Township records, including the road department records, for 1995. a. Kistler later refused to sign the Audit Report, citing a possible conflict of interest. 26. At the February 1, 1996, Board of Supervisors meeting a number of citizens questioned the propriety of Forrest Kistler holding the Auditor's position while employed on the Township road crew. 27. Supervisors Bittner, Wehr and Helen Fenstermaker directed Solicitor Charles Waters to research the issue of Kistler holding both positions. 28. In a letter, dated February 1, 1996, Waters informed the Board of Supervisors that, in his opinion, the Second Class Township Code is unclear on the issue and the Code, in and of itself, does not bar an Auditor from being employed as a Township employee. a. Waters recommended the Township, with Kistier's permission, seek an opinion from the State Ethics Commission. 29. In a letter, dated February 27, 1996, Waters contacted State Ethics Commission Chief Counsel Vincent J. Dopko and posed the following questions: (1) From this date forward, may Mr. Kistler participate in the auditing of the general financial affairs of Weisenberg Township? (2) From this date forward, may Mr. Kistler participate in the auditing of the financial affairs of Weisenberg Township as they specifically relate to the township road department? (3) From this date forward, may Mr. Kistler participate in auditing the Weisenberg Township records dealing with his compensation as an employee of the township? Kistler, 97- 044 -C2 Page 5 (4) From this date forward, may Mr. Kistler participate in setting the compensation of township supervisors as contemplated and authorized by the Second Class Township Code? 30. In a letter, dated March 29, 1996, State Ethics Commission Chief Counsel Vincent J. Dopko responded to Waters' request and stated: Given that Kistler is employed as a road crew worker in the Township road department, where he is subject to the supervision of a working Township Supervisor /Road Foreman, pursuant to Section 3 (a) of the Ethics Law, Kistler would have a conflict of interest in any matter before him as a Township Auditor where the use of the authority of his public office or the use of confidential information to which he has access as a result of being a Township Auditor, would result in a private pecuniary benefit for himself, his boss, the Township Supervisor /Road Foreman, or any other Supervisor who makes decisions as to Kistler's employment. In each instance of a conflict of interest, Kistler would be required to abstain fully and to satisfy the disclosure requirements of Section 3 (j) as set forth above. Kistler may participate in auditing the general financial affairs of the Township and specifically the records pertaining to the Township Roads Department to the extent that he can do without participating in matters that would result in a private pecuniary benefit to himself, his boss, the Supervisor /Road Foreman, or any other Supervisor who makes decisions as to Kistler's employment. Kistler may not participate in auditing the Township records which deal with his own compensation as an employee of the Township, or compensation to his boss, the Township Supervisor/ Road Foreman, or any other Supervisor who makes decisions as to Kistler's employment. Kistler may not participate in setting the compensation of his boss, the Township Supervisor /Road Foreman, or any other Supervisor who makes decisions as to Kistler's employment with the Township. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act." 31. On April 4, 1996, Solicitor Waters notified the Township officials of the Ethics Commission's advice and recommended the Board of Auditors reconvene for the sole purpose of setting the supervisor's compensation and to allow Mr. Kistler the opportunity to satisfy the necessary disclosure requirements. 32. On April 24, 1996, the Weisenberg Township Board of Auditors reconvened. 33. The minutes of the April 24, 1996, Auditors' meeting indicate Kistler informed the Board, as a result of an "Advice of Counsel" letter from the State Ethics Commission, that he was disclosing he had a conflict of interest in the matter of supervisors and roadmaster compensation in that he is a full time employee of the Township. a. Kistler added that he would abstain from voting on this matter as provided by Section 3 (j) of the Ethic Act. 34. The minutes indicate the meeting was called to order by Chairman Tom Hails. a. Auditor Robert Fenstermaker stated he did not agree with the minutes of the January 3, 1996, Board of Auditors' meeting Kistler, 97- 044 -C2 Page 6 pertaining to the roadmaster's pay as he did not state he could live with the $15.60 per hour salary for the roadmaster. b. Attorney Waters stated Auditor Hails' motion for a $16.00 per hour salary for the Roadmaster was a full motion and that the $15.60, per hour, vote for the Roadmaster's pay was null and void because there was no second by Auditor Fenstermaker. c. The portion of the minutes of the January 3, 1996, Auditor's meeting, concerning the Roadmaster's pay was amended to reflect the memory of Auditors Tom Hails and Robert Fenstermaker. d. A discussion of a disclosure of the Ethics Statement of Forrest Kistler. 35. The minutes of the April 24, 1996, Auditor's meeting reflect that Forrest D. Kistler stated he would abstain unless there was a tie vote. a. Hails made a motion that the Roadmaster's pay be set at $16.00 per hour. b. Kistler and Fenstermaker disapproved and the motion failed. c. Kistler made a motion that the Roadmaster's pay be set at $15.60 per hour and Hails seconded the motion. d. Fenstermaker opposed the motion but the motion was approved with Hails and Kistler voting in favor. 36. Kistler prepared the handwritten minutes and signed the document as secretary of the Board of Auditors. 37. Kistler later questioned the accuracy of the minutes of the April 24, 1996, meeting. 38. On May 2, 1996, Waters informed the Township officials that the State Legislature changed the Second Class Township Code, effective May 7, 1996, to prohibit a Township Auditor from holding any other elective or appointed township office or position. a. Waters stated Kistler should be asked to make a decision as to whether he wants to retain his position as auditor or to retain his employment with the Township. 39. Kistler resigned his Auditor's position effective June 6, 1996. a. Kistler also resigned as Democratic Committeeman and his wife, Joanne, resigned her position as Democratic Committeewoman. 40. Commonwealth of Pennsylvania Annual Audit and Financial Reports for Weisenberg Township indicate Kistler participated in the entire audit of Township records, including the road department records, for the calendar years 1994 and 1995 while being considered for employment, and while being employed, by the Township. Kistler, 97- 044 -C2 Page 7 41. Weisenberg Township records indicate Arlan Bittner was compensated the following amounts for his work as Township Roadmaster: Year 1994 $14.00 $36,949.30 1995 $14.40 $35,785.00 1996 $15.60 $42,069.20 1997 $16.07/$16.54 $18,818.18 (For the 1st and 2nd Quarter of 1997) 42. Weisenberg Township records indicate Forrest Kistler was compensated the following amounts for his work as Township Auditor and Road Department employee: Year Hourly Rate Total Yearly Salary Hourly Rate Total Yearly Salary 1993 $ 624.00 1994 $ 8.30 $10,560.40 1995 $10.80 $18,859.25 1996 $11.20 $28,920.10 1997 $11.87 $10,024.71 (For the 1st and 2nd Quarter of 1997) III. DISCUSSION: At all times relevant to this matter, the Respondent, Forrest Kistler, hereinafter Kistler, 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, The allegation is that Kistler violated Section 3(a) of the Ethics Law when he used the authority of his office for a private pecuniary benefit by participating in actions to set and approve wages of the township roadmaster, who serves as his immediate supervisor on the township road department, at a time when Kistler's salary was being considered by the township supervisors. 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: 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 Kistler, 97- 044 -C2 Page 8 65 P.S. §402. his immediate family or a business with which he or a member of his immediate family is associated. Having noted the issues and applicable law, we shall now summarize the relevant facts. From 1954 to June 1996 Kistler served as a Township Auditor wherein he participated in auditing the Township books and records and setting the salaries and benefits for the Township supervisors. During the winter of '1993 - 1994, Kistler worked part -time as an employee of the Township Road Department removing snow from Township roads. Arlan Bittner, who served as a Supervisor since 1984 and as a Roadmaster since 1990, had the authority to choose employees for the Township Road Department, subject to approval by the Board. In April 1994, Bittner made a motion to hire Kistler to assist the Township perc testers with their work. In November, 1994, Kistler applied for a full -time position with the Township Road Department. At a January 3, 1995 Township reorganizational meeting of the Board of Supervisors, Bittner voted to set the salary of Township Road Department employees at $10.80 per hour plus a six percent pension plan contribution, together with certain other benefits. At the January 3, 1995 reorganizational meeting of the Board of Auditors, one auditor made a motion to increase the working supervisors' hourly pay and Kistler made a motion to increase Bittner's salary as Roadmaster. The three Auditors, including Kistler, voted in favor of the salary increases. In February 1995, Bittner informed the other two Supervisors that he wanted to hire Kistler to a position on the Township Road Department. In March 1995, a Supervisor made a motion to hire Kistler at the hourly rate of $10.80 plus benefits set at the reorganizational meeting which motion passed unanimously with Bittner voting in favor of the motion. The hiring of Kistler increased the compliment of Township Road Department employees from three to four individuals. As a Township employee, Kistler was supervised by Bittner from March 1995 until January 1998, when Bittner was removed by the Board of Supervisors from the Roadmaster position. At the January 1996 reorganizational meeting of the Board of Supervisors, Bittner made a motion to rehire the road employees, including Kistler, at a an hourly rate of $11.20 with certain pension benefits. At the January 1996 reorganizational meeting of the Board of Auditors, Kistler made a motion and voted to have the contribution to the Roadmaster's pension fund equal the contributions made to the Township Road Department employees. In addition, the Board of Auditors increased Bittner's hourly rate as Roadmaster with Kistler voting in favor of that action. After a number of citizens questioned the propriety of Kistler holding the Auditor position while an employee of the Township Road Department, the Supervisors directed their Solicitor to research the issue. After the Solicitor concluded that the Second Class Township Code was not definitive on the issue, a letter was sent to the State Ethics Commission requesting an advisory regarding Kistier's conduct. An Advice of Counsel was issued wherein it was concluded that Kistler had a conflict as an Auditor concerning himself, his boss (Bittner), that is, the Township Supervisor /Roadmaster or any other Supervisor who would make decisions as to Kistier's employment and that in such instances of conflict, Kistler would have to abstain and observe the disclosure requirements of Section 3(j) of Act 9 of 1989. Kistler, 97- 044-C2 Page 9 In May 1996, the Solicitor informed Township officials that the General Assembly had amended the Second Class Township Code effective May 1996 to prohibit a Township Auditor from holding any other elective or appointive Township office or position. The Solicitor proposed that Kistler be asked to make a decision as to whether he wanted to remain as Township Auditor or as an employee of the Township. Thereafter, Kistler resigned as Auditor effective June 6, 1996. Having summarized the above relevant facts, we must now determine whether the actions of Forrest Kistler violated Section 3(a) of Act 9 of 1989. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In this case, there was a use of authority of office on the part of Kistler. As a Township Auditor, Kistler participated as to setting the compensation for the Township Supervisors as well as Bittner as Roadmaster. See, Juliante, Order 809. Further, the use of authority of office on the part of Kistler resulted in a private pecuniary benefit to Bittner as a Township Supervisor /Roadmaster. Such private pecuniary benefit in turn inured to the benefit of Kistler in that Bittner as a Township Supervisor participated and voted as to setting the compensation for the Township employees which included Kistler. Accordingly, Kistler violated Section 3(a) of Act 9 of 1989 when he participated as to the setting of the salary of Bittner as a Township Supervisor / Roadmaster at a time when Bittner served as Kistler's supervisor and participated in approving Kistler's salary as a Township employee. Our decision is in accord with our prior precedent, Bassi, Opinion 86 -007 -R and Woodrinq, Opinion No. 90 -001, wherein we held that a public official /employee has a conflict in a matter involving a person who in some other capacity is in a superior /subordinate financial relationship with the public official /employee. Lastly, we note that the parties have filed a Stipulation of Findings and Consent Agreement which sets forth a proposed resolution of the allegations. We believe that the Consent Agreement is the proper disposition for this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. IV. CONCLUSIONS OF LAW: 1. Forrest Kistler, as a Township Auditor in Weisenberg Township, was a public official subject to the provisions of Act 9 of 1989. 2. Kistler violated Section 3(a) of the Ethics Law when he voted to approve the salary of Arlen Bittner, a supervisor serving as township roadmaster, at a time when Bittner served as Kistler's supervisor and participated in approving Kistler's salary as a roadmaster. In Re: Forrest Kistler File Docket: 97- 044 -C2 Date Decided: 7/23/98 Date Mailed: 8/7/98 ORDER NO. 1087 1. Forrest Kistler, as a Township Auditor in Weisenberg Township, violated Section 3(a) of the Ethics Law when he voted to approve the salary of Arlen Bittner, a supervisor serving as township roadmaster, at a time when Bittner served as Kistler's supervisor and participated in approving Kistler's salary as a roadmaster. 2. Based upon the totality of facts and circumstances in this case, this Commission will take no further action. BY THE COMMISSION, e tAitsumiu PuiLL. DANEEN E. REESE, CHAIR