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