HomeMy WebLinkAbout1096 FarleyIn Re: R. David Farley
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Allan M. Kluger
Julius Uehlein
Louis W. Fryman
John J. Bolger
Frank M. Brown
97- 064 -C2
Order No. 1096
10/8/98
10/20/98
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 g §eg., by the above -
named . Respondent. At the commencement of its investigation, the ,Investigative
Division served upon Respondent written notice of the specific allegations. Upon
completion of its investigation, the Investigative Division issued and served upon
Respondent a Findings Report identified as an "Investigative Complaint." An Answer
was not timely filed and a hearing was deemed waived. 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.
Farley, 97- 064 -C2
Page 2
1. ALLEGATION: That R. David Farley, a public official /public employee, in his
capacity as superintendent of the Redbank Valley School District, Clarion County,
violated the following provision of the State Ethics Act (Act 9 of 1989) when he used
the authority of his office for a private pecuniary benefit by using school district
employees to perform services of a personal nature including, but not limited to
repairing lawnmowers and automobiles, completing projects in and around his home;
when he used school district equipment and supplies, including but not limited to a
school district vehicle for his personal use, and when he submitted and was
reimbursed for travel and conference expenses in excess of actual expenses incurred.
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.
II. FINDINGS:
1. The Investigative Division of the State Ethics Commission received
information alleging that R. David Farley violated provisions of the State
Ethics Act (Act 9 of 1989).
2. Upon review of the information, the Executive Director of the State
Ethics Commission authorized a preliminary inquiry on November 18,
1997.
3. The preliminary inquiry was completed within sixty days.
4. On January 8, 1998, a letter was forwarded to R. David Farley, by the
Executive Director of the State Ethics Commission informing him that a
complaint against him was received by the Investigative Division and that
a full investigation was being commenced.
a. Said letter was forwarded by certified mail, no. Z 041 456 136.
b. The domestic return receipt bore the signature of Ann R. Farley,
with a delivery date of January 12, 1998.
Farley, 97- 064 -C2
Page 3
5. Periodic notice letters were forwarded to R. David Farley in accordance
with the provisions of the Ethics Law advising him of the general status
of the investigation.
6. The Investigative Complaint was mailed to the Respondent on June 30,
1998.
7. R. David Farley served as superintendent of the Redbank Valley School
District, Clarion County from August 1, 1986, until September 11, 1997.
a. " Farley was suspended without pay on September 11, 1997, by
the Redbank Valley School Board.
8. Farley's duties as superintendent included the responsibility of all of the
daily operations of the school district, including teachers, support staff
and maintenance personnel.
a. All employees of the district were subordinates to Farley.
9. During the term of his employment as superintendent, Farley regularly
directed school district maintenance personnel to perform work of a
personal nature around Farley's home, on his vehicles or perform other
duties of a personal nature.
a. This work ranged from small repairs which took minutes to
complete, to work that took several hours and required the use of
school district supplies and equipment.
10. Charles Truitt is employed as the maintenance supervisor for the Redbank
Valley School District.
a. Truitt was hired in August, 1986, by Farley to serve as
maintenance supervisor.
b. Truitt's duties include supervising the district's
maintenance /custodial staff.
11. The maintenance /custodial staff for the school district included Greg
Termine, Tom Maginotti, Terry Moore and Larry White.
12. ° The maintenance workers work one of two shifts during the school year.
a. Daylight - 7 a.m. - 3 p.m.
b. Afternoon - 3 p.m. - 11 p.m.
13. During the summer months, all the maintenance /custodial workers work
daylight.
14. Truitt, Maginotti and Termine were the school district employees who did
the majority of the personal work for Farley.
15. From 1993 to 1997, the average hourly salary for Truitt, Maginotti and
Termine were as follows:
a. Truitt - $14.96/hr.
Farfev, 97- 064 -C2
Page 4
b. Termine - $11.44/hr.
c. Maginotti - $11.44/hr.
16. Following is a list of projects the maintenance workers did for Farley at
his direction and on school district time during the period from June 1992
through June 1997.
Work Hours Workers Pay Rate Total
Installed ignition 3 1 $14.96 $44.88
switch in Farley's car
Installed running 2 2 $11.44 $45.76
board on Farley's Jeep
Building of a 3 2 $11.44 $ 68.64
wishing well for Farley
Building of
Adirondack chairs
TOTAL
$ 2 $14.96/$11.44 $183.04
16 $342.32
17. Wood from the shop at Redbank Valley High School was used to
construct the Adirondack chairs.
18. The cost of the wood used to construct the wishing well and chairs is
estimated at $150.00.
19. Total private pecuniary gain realized by Farley for using school district
employees and materials:
Labor $342.32
Material 150.02
TOTAL $492.32
20. Farley attended conferences as part of his duties as school district
superintendent.
21. Farley attended a National conference of Superintendents at Ohio State
University on July 16, 17, 18, 1996.
a. Farley's wife and two sons accompanied Farley on this trip.
22. The Farley's stayed at the Holiday Inn On The Lane in Columbus, Ohio.
a. Farley checked into. Holiday Inn at 3:25 p.m. on July 16, 1996.
b. Farley stayed the nights of the 16th, 17th, and 18th.
c. Farley checked out on July 19, 1996 at 10:46 a.m.
23. On June 6, 1996, the Redbank Valley School District forwarded check
#2642 in the amount of $71.77 from the district's general fund to the
Holiday Inn On The Lane for a one night room deposit for Farley.
Farley, 97- 064 -C2
Page 5
a. This deposit was for the first night of Farley's stay on July 16,
1998.
b. Room rate for each night's stay was $71.77.
24. On July 1, 1996, Redbank Valley School District issued check no.
0008968 in an amount of $495.00 to the Ohio State University
Department of Education Policy & Leadership.
a. This check covered the registration fee and confirmed Farley's
attendance.
b. Purchase Order 06695 from account #2360 -330 was written from
Redbank Valley School District account.
25. Farley submitted a handwritten Travel Advance Request to the school
district in the amount of $516.00 prior to July 10, 1996, requesting an
advance as follows:
a. 850 miles travel at $.30 a mile = $255.00
b. Three night lodging at $77.00 /night = $231.00
c. Two meals at $15.00 = $ 30.00
26. On July 10, 1996, Farley received district check no. 2669 in the amount
of $5.16.00 as an advance for the superintendent's conference.
a. This advance covered lodging, travel and food.
27. On August 15, 1996, Farley turned in a travel expense reimbursement
form to the Redbank Valley School District Business office for an
additional 258 miles traveled in relation to his Columbus trip.
a. This was in addition to the $255.00 advance for 850 miles as part
of the advance received on July 10, 1996. (See Finding No.
25(a)).
28. On September 3, 1996, Farley was issued a check in an amount of
$111.00 from the Redbank Valley School District for the additional 258
miles submitted on August 15, 1996.
a. The mileage reimbursement rate was paid at $.30 per mile.
b. The portion of the check for the additional 258 miles totaled
$77.40 (258 x .30).
29. In total, Farley submitted and was reimbursed for 1,108 miles for his
attendance at the superintendent's conference in Columbus, Ohio.
a. Reimbursement for mileage totaled $332.40 (1,108 x $.30).
b. Advance $255.00
c. Excess mileage $77.40
Farley, 97- 064 -C2
Page 6
30. The round trip mileage from New Bethlehem, PA, to Columbus, OH is
522 miles.
a. Farley should have been reimbursed $156.60 (522 x $.30) for
mileage.
31. Farley submitted and received reimbursement for 586 miles in excess of
the actual miles that were traveled from New Bethlehem to Ohio and
return.
a. The amount of mileage claimed by Farley, was double the mileage
for the round trip from New Bethlehem to Columbus, Ohio.
32. Farley received a private pecuniary gain for his submission and
subsequent overpayment of $174.80 in mileage reimbursements.
33. Farley checked into the Holiday Inn On The Lane on July 16, 1996, at
3:25 p.m.
a. When Farley checked into the hotel, one nights stay had already
been paid for by the $71.77 payment made by the school district
on June 6, 1996. (Finding No. 23).
b. At check -in, Farley paid $143.54 cash, for the remaining two
nights stay of July 17th and 18th.
1. This cash was from the $231.00 advance Farley had
requested for lodging prior to attending the conference.
(Finding No. 25(b)).
34. The $77.00 per night lodging advance request Farley made was $5.33
per night more than the actual per night amount charged by the hotel.
(See Finding No. 25(b)).
35. Farley was reimbursed for four nights stay, one night prepaid by the
district at $71.77, and three nights advance of $231.00 ($77.00 x 3
nights).
a. Farley was reimbursed a total of $302.77 for lodging for four
nights.
36. Farley checked out of the Holiday Inn at 10:46 a.m. on July 19, 1996.
a. Farley stayed a total of three (3) nights.
37. Farley's total bill was $215.31 ($71.77 x 3 nights) for lodging on the
nights of July 16, 17 and 18, 1996.
38. Farley was reimbursed for one (1) additional night's lodging at $77.00
per night.
39. Farley received a private pecuniary gain of $87.46 as a result of his
submission and overpayment for lodging.
40. Farley realized a total private pecuniary benefit of $262.26 as a result of
his reimbursement requests for the trip to Columbus, Ohio.
Farley, 97- 064 -C2
Page 7
41. Farley has received a private pecuniary benefit as a result of his use of
the authority of his public position as follows:
III. DISCUSSION:
Mileage $174.80 (Finding No. 32)
Room $ 87.46 (Finding No. 39)
TOTAL $262.26
a. Cost of hours worked $342.32
b. Material - $150.00
c. Amount over charged
for Columbus trip
$262.26
TOTAL $754.58
Initially, we must consider a procedural issue that has arisen regarding the
receipt of an Answer to the Investigative Complaint. The pleading stage in this case
began with the issuance of the Investigative Complaint on June 30, 1998. On its face,
the Investigative Complaint stated that an Answer had to be received at this
Commission within thirty (30) days of issuance and that the Respondent should take
that document immediately to an attorney. In this case, an Answer was received on
July 31, 1998 which was 31 days after the issuance of the Investigative Complaint.
An Application Nunc Pro Tunc was received from Farley'4 counsel on August
4, 1998. In the Application, it is argued that no prejudice has resulted to any of the
parties to this matter as a result of the late filing, and that the Answer and Request
for Hearing were deposited in the United States Mail on July 28, 1998 at
approximately 5:15 p.m. The Investigative Division filed an Answer opposing the
Respondent's Application, arguing that prejudice has or will result due to the late filing
and that the post mark on the envelope in which the Respondent's Answer was
contained was July 29, 1998, indicating a mailing on that date.
It is clear under the Ethics Law and Regulations that a response to the
Investigative Complaint must be received within 30 days. 65 P.S. §408(e); 51
Pa.Code §21.5(k). As noted above, even the face sheet of the Investigative Complaint
states that an Answer must be received within 30 days. The Answer in this case was
received one day late.
In order for a late answer to be deemed timely filed, we apply the same standard
as is applied by the courts to untimely appeals (see, Getz v. Pennsylvania Game
Commission, 475 A.2d 1369 (Pa. Commw. Ct. 1984) applying that standard in
administrative proceedings to an untimely request for a hearing). The standard is that
to accept the untimely filing as if it were timely, there must either have been fraud or
a breakdown in the administrative process, see, West Penn Power Co. v. Goddard,
460 Pa. 551, 333 A.2d 909 (1975); Bianco v. Robinson Twp., 556 A.2d 993 (Pa.
Commw. Ct. 1989), which includes the postal process (Getz v. Pennsylvania Game
Commission, 475 A.2d 1369 (1984)), or there must have been unique and compelling
factual circumstances establishing non - negligent failure to file timely, Grimaud v. Dep't
of Env. Resources, 638 A.2d 299 (Pa. Commw. Ct. 1994); Bass v. Com., 485 Pa.
256, 401 A.2d 1133 (1979).
None of the conditions for allowing the filing of a late Answer is present in this
case. In fact, there has not even been any allegation of fraud, any breakdown in the
Farley, 97- 064 -C2
Page 8
administrative process or the mail delivery system, or any unique and compelling
factual circumstances that would establish a non - negligent failure to timely file. No
such argument is proffered. Parenthetically, we note that our Regulations allow for the
filing of an application for an extension to file an Answer. 51 Pa.Code §21.5(k). No
such request was made in this case prior to the filing deadline. Since the argument
raised as a procedural issue by Farley has no merit, we reject the argument. The
Application to File Nunc Pro Tunc is denied.
Turning to the substantive aspect of the case, at all times relevant to this
matter, the Respondent, R. David Farley, hereinafter Farley, has been a public 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, et fig.
The allegations are that Farley as superintendent of the Redbank Valley School
District (School District), Clarion County, violated Section 3(a) of the State Ethics Act
(Act 9 of 1989), when he used school district supplies and employees to perform
repairs on his automobiles and to complete projects around his home; and when he
submitted and received reimbursement for travel and lodging expenses at a conference
in excess of the actual expenses incurred.
Farley served as superintendent of the School District from August, 1986 until
September, 1997 when he was suspended without pay by the School District Board.
As superintendent, Farley's duties included the responsibility for the daily operation of
the School District, and oversight of teachers, support staff, and maintenance
personnel, all of whom were subordinate to Farley.
During his tenure as superintendent, Farley directed School District maintenance
personnel to perform work of a personal nature around his home and on his vehicles,
which was done during School District working hours.
In particular, Farley directed one School District employee to install an ignition
switch on his car which took three hours; directed two workers to install a running
board on his Jeep which took two hours; directed two workers to build a wishing well
at his home which took three hours; and directed two workers to build Adirondack
chairs which took eight hours. The cost for such labor amounted to $342.32. The
Adirondack chairs and wishing well were constructed from wood valued at $150
which was taken from the School District shop. As to such personal projects, Farley
received a total financial gain of $492.32 ($342.32 + $150).
Farley as part of his duties as School District Superintendent also attended
conferences. Farley attended the National Conference of Superintendents at Ohio State
University, which was held between July 16 and July 18, 1996. Farley stayed at the
Holiday Inn for three nights. The School District sent a check in the amount of $71.77
to the Holiday Inn as a room deposit for Farley. In July 1996, the School District
issued a check in the amount of $495 to Ohio State University to cover the
registration fee and Farley's attendance at the Conference. Prior to attending the
Conference, Farley submitted a travel advance request and received a School District
check in the amount of $516, which consisted of $255 for 850 miles of travel at $.30
per mile, $231 for three nights' lodging at $77 per night, and $30 for two meals at
$15 each.
In August, 1996 Farley submitted a travel expense reimbursement form to the
School District for an additional 258 miles of travel or $77.40, which was in addition
to the $255 mileage advance that he had already received. In total, Farley submitted
and was reimbursed for 1,108 miles for his travel to and from the Superintendents
Conference in Columbus, Ohio at $.30 per mile or $332.40. Not only did the mileage
Farley, 97- 064 -C2
Page 9
reimbursement that Farley received exceed the 1,108 miles he had claimed, but the
mileage that Farley claimed exceeded the actual round -trip mileage between New
Bethlehem, Pennsylvania and Columbus, Ohio which was only 522 miles. Since Farley
was only entitled to a reimbursement of $156.60 for travel, he was overpaid $ 174.80
in excess mileage reimbursements.
As to the lodging at the Holiday Inn, Farley also received payments in excess of
actual expenses. In particular, the School District had already paid $71.77 for one
night's lodging. As to the other two night's lodging, Farley claimed $77 per night, even
though the daily room charge was $71.77 per night. Farley was reimbursed a total of
$302.77 for lodging even though the total bill for his stay was $215.31, Farley
received a financial gain of $87.46 for such lodging. Therefore, the private pecuniary
benefit received by Farley for the Ohio Superintendents Conference totaled $262.26
($174.80 plus $87.46).
Therefore, the total documented private pecuniary benefit received by Farley in
this case amounts to $754.58 which consists of $342.32 in hours worked by School
District employees on Farley's personal residence and vehicles; $150 as to materials
taken from the School District for Farley's personal use; and $262.26 as to over-
charges for lodging and mileage reimbursement for the Ohio Superintendents
Conference.
Section 3(a) of the Ethics Law prohibits a public official /public employee 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 applying the provisions of Section 3(a) of Act 9 to the instant matter, there
was a use of authority of office on the part of Farley. But for the fact that he was
superintendent, he could not have directed the School District employees to take
School District supplies to his home and build the wishing well, the Adirondack chairs,
and repair his personal vehicles on School District time. The use of authority of office
resulted in private pecuniary benefit to Farley in that he did not have any out -of- pocket
expenses to have such work done at his residence or on his personal vehicles. In
addition, that private pecuniary benefit inured to Farley directly. Hence, Farley violated
Section 3(a) of Act 9 of 1989 when he used School District employees and materials
for a private pecuniary benefit for himself consisting of repairs performed on his
personal vehicles and work done at his personal residence. Rakowsky, Order No. 943.
We also find a violation of Section 3(a) of Act 9 of 1989 when Farley submitted
and received reimbursements in excess of his actual expenses for his attendance at the
Superintendents Conference in Ohio. Because Farley was a superintendent, he was
able to attend the Conference and claim an expense reimbursement. Hence, there was
a use of authority of office on his part. The reimbursement that he received, to the
extent that it exceeded his actual expenses, was a private pecuniary benefit because
Farley was only entitled to be reimbursed for the actual expenses he incurred. Choura,
Order No. 942. A review of the record indicates that Farley submitted and received
reimbursement for more miles than he actually traveled and, secondly, that he received
reimbursement for lodging which exceeded the actual room charges at the Holiday Inn
where he stayed. Finally, since Farley pocketed the excess expense reimbursements,
that private pecuniary benefit inured to him directly.
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 /public employee has obtained a financial gain in
Farley, 97- 064 -C2
Page 10
violation of the Ethics Law. In this case, since it has been determined that a financial
gain has been obtained in violation of the Ethics Law, restitution is warranted. Farley
is directed, within 30 days of the date of the mailing of this Order, to forward a check
to this Commission in the amount of $754,58, payable to the Redbank Valley School
District. Non - compliance will result in the institution of an order enforcement action.
IV. CONCLUSIONS OF LAW:
1. R. David Farley, as a superintendent of the Redbank Valley School District,
Clarion County, was a public employee subject to the provisions of Act 9 of
1989.
2. Farley violated Section 3(a) of Act 9 of 1989 when he used School District
employees and materials for a private pecuniary benefit for himself consisting
of repairs performed on his personal vehicles and work done at his personal
residence.
3. Farley violated Section 3(a) of Act 9 of 1989 when he submitted and received
reimbursements in excess of his actual expenses for his attendance at the
Superintendents Conference in Ohio.
4. The private pecuniary benefit received by Farley amounted to $754.58.
In Re: Farley File Docket: 97- 064 -C2
Date Decided: 10/8/98
Date Mailed: 10/20/98
ORDER NO. 1096
1. R. David Farley, as a superintendent of the Redbank Valley School District,
Clarion County, violated Section 3(a) of Act 9 of 1989 when he used School
District employees and materials for a private pecuniary benefit for himself
consisting of repairs performed on his personal vehicles and work done at his
personal residence.
2. Farley violated Section 3(a) of Act 9 of 1989 when he submitted and received
travel and lodging reimbursements in excess of his actual expenses for his
attendance at the Superintendents Conference in Ohio.
3. Farley is directed, within 30 days of the date of the mailing of this Order, to
make restitution by forwarding payment to this Commission in the amount of
$754.58, payable to the Redbank Valley School District. Non - compliance will
result in the institution of an order enforcement action.
BY THE COMMISSION,
4 ua,u 6
DANEEN E. R