Loading...
HomeMy WebLinkAbout1116 KurtzIn Re: Regina Kurtz • • STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA t7120 File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Julius Uehlein Louis W. Fryman Susan Mosites Bicket 98- 002 -C2 Order No. 1116 2/26/99 3/10/99 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., 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. Effective December 15, 1998, Act 9 of 1989 was replaced by the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 g seg., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under that Act. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and 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 the Ethics Act. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $ 1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. tK �rtz, 98- 002 -C2 Page 2 !. ALLEGATION: That Regina Kurtz, a public official /public employee, in her capacity as a supervisor for West Mahanoy Township, violated Sections 3(a) and 3(f) of the State Ethics Act (Act 9 of 1989) when she used the authority of her office for the private pecuniary benefit of herself and /or a business with which she is associated by participating in actions of the board of supervisors to renew insurance policies placed with her insurance company; and when she participated in actions to pay premiums to her company, Bolich and Burke. 11. FINDINGS: A. Admitted Pleadings 1. The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Regina Kurtz violated provisions of the State Ethics Act (Act 9 of 1989). 2. Upon review of the complaint the Investigative Division initiated a preliminary inquiry on January 8, 1998. 3. The preliminary inquiry was completed within sixty days. 4. On March 9, 1998, a letter was forwarded to Regina Kurtz, by the Executive Director of the State Ethics Commission informing her that a complaint against her was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, no. P 487 031 978. b. The domestic return receipt bore the signature of Regina Kurtz, with a delivery date of March 10, 1998. 5. Periodic notice letters were forwarded to Regina Kurtz in accordance with the provisions of the Ethics Law advising her of the general status of the investigation. 6. The Investigative Complaint was mailed to the Respondent on September 4, 1998. 7. Regina Kurtz has served as a West Mahanoy Township Supervisor since January 3, 1996. 8. Regina Kurtz has been the President and sole owner of Bolich and Burke, Inc., 1 -3 South Main Street, Shenandoah, Pennsylvania 17976 since at least August 31, 1989. a. Bolich and Burke, Inc. is an independent insurance company. b. Regina Kurtz is the sole insurance agent employed by Bolich and Burke, Inc. 1. Bolich and Burke, Inc. also employs clerical personnel as needed. 9. Articles of incorporation for Bolich and Burke, Inc. on file with the Pennsylvania Department of State indicate that Bolich and Burke was initially incorporated by George H.K. Bolich, Edmund F. Burke and John H. Thomas on November 24, 1967. Katz, 98- 002 -C2 Page 3 a. Corporate filings for Bolich and Burke, Inc. were amended on November 28, 1978, changing the business name to Bolich, Burke and Webb, Inc. b. A second amendment to the articles of incorporation for Bolich, Burke and Webb, Inc. was made on August 31, 1989 to change the business name of Bolich, Burke and Webb, Inc. back to Bolich and Burke, Inc. (1) Regina Kurtz is president and actively runs the corporation. Her son, Robert A. Kurtz, is not actively employed as Secretary of Bolich and Burke, Inc., nor does he in any way participate in the operation of said business. (2) Robert A. Kurtz was appointed West Mahanoy Township Solicitor on January 5, 1998, by a 2 to 1 vote. 10. Bolich and Burke, Inc. has served as the insurance carrier for West Mahanoy Township since 1978, prior to Kurtz assuming company ownership and her election to the township board of supervisors. 11. Since 1978, West Mahanoy Township has never put its insurance coverage out for competitive bids. a. Policies have been annually renewed by the township board of supervisors as the result of the payment of policy premiums as they become due. (1) Bolich and Burke, Inc. at times advanced premiums on behalf of West Mahanoy Township when the Township was unable to timely pay the premiums. b. Not all policies were renewed at the same time. 12. The township has used Bolich and Burke, Inc. since it is a local company and has provided the township with satisfactory service. 13. Prior to becoming a candidate for the position of West Mahanoy Township Supervisor, Regina Kurtz requested an Advice of Counsel from the State Ethics Commission regarding her insurance company handling the township's accounts. a. On November 23, 1994, Regina Kurtz submitted a request for an advice providing the following information: "At the present time I am not an elected official. My intention is to announce my candidacy for township supervisor in the primary election. My question is, would I violate any ethics by winning and serving as supervisor since I am also an insurance agent? I broker the account (West Mahanoy Township) through another agent." (1) The letter was sent to the State Ethics Commission on the letterhead of Bolich and Burke, Inc. Kurtz, 98- 002 -C2 Page 4 14. On December 9, 1994, the State Ethics Commission's Legal Division issued Regina Kurtz Advice of Counsel Number 94-643 based on the fact scenario listed in Kurtz's letter of November 23, 1994. Specific advice to Kurtz was as follows: "Section 3(a) of the Ethics Law would not preclude your service as a Township Supervisor merely because you are also an insurance agent or because you broker the township's account through another agent. However, the restrictions of Section 3(a), (b), (c), (f), and (j) as set forth above must be observed. Pursuant to Section 3(a) of the Ethics Law, you would have a conflict of interest as to matters pertaining to your insurance agency and specifically pertaining to the Township's account. Section 3(a) would prohibit any use of authority of office or confidential information received by being in that position for the private pecuniary benefit of a business with which you are associated or for the detriment of a business competitor. In each instance of a conflict of interest, you would be required to abstain from any participation and to fully satisfy the disclosure requirements of Section 3(j) set forth above. The restrictions of Section 3(f) must be observed as to contracts valued at $ 500.00 or more between a business with which you are associated and your governmental body. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law." 15. West Mahanoy Township continued to purchase insurance coverage from Bolich and Burke, Inc. after Regina Kurtz took office on January 3, 1996. a. Township insurance policies have been renewed on an annual basis on the anniversary date of the individual policies. b. Policies were renewed by the payment of premiums. 16. West Mahanoy Township has not formally solicited bids for insurance coverage since Regina Kurtz has been in office. a. There have been no public advertisements seeking quotes for the township insurance. b. As Chairman, Ted Buriak normally directed which items were advertised and put out for bid. 17. In June or July, 1997, Supervisor Theodore Buriak received proposals for insurance coverage from the Varano Insurance Agency, Inc., 110 South Oak Street, P.O. Box G, Mount Carmel, Pennsylvania 17851 and the Kilmer Insurance Agency, P.O. Box 337, Wyalusing, Pennsylvania 18853. a. Both companies submitted proposals directly to Buriak. 18. The Varano Insurance Agency submitted the following proposal to the township on or about August 1, 1997: a. Coverages Property Premium $6,151 Kurtz, 98- 002 -C2 Page 5 General Liability Automobile Inland Marine Public Official Law Enforcement Total Annual Premium Coverage Property General Liability Inland Marine Automobile Employee Benefits Liability Public Official Liability Law Enforcement Liability Total Annual Premium 01/15/96 4253 12/14/95 4299 03/11/95 03/15/96 4479 08/11/96 08/11/96 08/11/96 4547 09/17/96 09/17/96 4619 10/29/96 10/29/96 11/15/96 11/15/96 4620 11/11/96 19. The Kilmer Insurance Company submitted the following proposal for insurance coverage to the township for the policy period August 11, 1997, through August 11, 1998: Check Invoice Invoice Number Date Amount 4177 01/03/96 $ 300.00 $ 262.50 $ 803.00 $ 443.00 $ 551.00 $4, 648.00 $3,915.00 $1,055.00 $2,831.00 $1,149.00 $1,865.00 $ 575.00 $ 500.00 $ 346.00 $ 689.00 Inc. Inc. Inc. $3,658 Inc. $9,809 Annual Premium $ 626.00 $1,787.00 $ 638.00 $2,976.00 $ 174.00 $2,538.00 $1,120.00 $9,859.00 20. The proposals received by Supervisor Buriak from Varano and Kilmer were not considered by the Board for a vote. a. Buriak reviewed the proposals and was satisfied with the service the township was receiving from Bolich and Burke, Inc. b. No proposal was solicited from Bolich and Burke. 21. Since January, 1996, Bolich & Burke, Inc. has invoiced West Mahanoy Township for the following insurance coverages: Policy Number 22149285 68332800 44UENSB2908 H0332882A H03544424 44UENSB2986 44CESSB2476 44UENSB2985 P0580935 PL540684 CM 1003305 PE6000068 CM 1004086 CL0004808 CM 1004092 Company Proposed EMC Insurance Company EMC Insurance Company EMC Insurance Company EMC Insurance Company EMC Insurance Company General Star General Star Coverage Treasurer Bond Secretary Bond Auto 96 Chevy Auto 96 Chevy Auto Policy Auto Policy General Liability Commercial Property Public Official Liability Law Enforcement Liability Auto Policy Portable Equipment Policy Auto Policy Portable Equipment Policy Auto Policy Kurtz, 98- 002 -C2 Page 6 11/11/96 11/11/96 11/11/96 4634 01/03/97 01/15/97 4742 11/11/96 4770 01/24/97 4773 11/11/96 11/15/96 4991 08/11/97 5040 10/29/97 10/29/97 11/11/97 11/11/97 5061 11/11/97 11/11/97 11/11/97 11/11/97 11/15/97 11/15/97 5222 01/05/98 01/13/98 5236 04/03/98 $ 288.00 $ 816.00 $ 633.00 $ 300.00 $ 262.50 $ 30.00 $ 245.00 $ 816.00 $ 500.00 $7,636.00 $ 575.00 $1,841.00 $ 633.00 $1,229.00 $ 795.00 $ 248.00 $ 626.00 $ 338.00 $ 549.00 $ 449.00 $ 126.04 $ 300.00 $ 548.00 PE6000068 • CM 1003305 CL0004551 CM 1003854 CM 1004092 (CR)CM1004092 PE6000080 (CR)PE6000080 CM 10004085 CL0004808 68685003 68685003 CM1004085 PE6000080 Portable Equipment Policy VF1 S -CM- 1003854 -OAuto Policy CL4551 -0 Portable Equipment Policy 22149285 Treasurer Bond 68332800 Secretary Bond 44UENSB2986 Add. Premium Auto Policy CM 1004092 Add. Premium Auto Policy VF1 S -CM- 1003854 -OAuto Policy CM1004085 Auto Policy CA099410PE03616 Auto, Public Off. & Law Enf. Portable Equipment Policy Auto Policy Portable Equipment Auto Policy Auto Policy (Credit) Portable Equipment Portable Equipment Auto Policy Portable Equipment. Treasurer Bond Treasurer Bond Auto Policy 22. Bolich and Burke's quotes for auto rates included quotes for volunteer fire department vehicles. a. Bolich and Burke's insurance rates to the township decreased by $5,344.00 following Buriak's receipt of quotes from Varano and Kilmer. 23. Payments made for insurance coverage are approved as part of the township's monthly bill lists. a. Bill lists are voted on in their entirety by one single motion. b. Township checks are manually signed by two (2) of the supervisors. 24. Since taking office, Regina Kurtz participated in eleven (11) separate votes taken to approve the payment of bills totaling $27,560.04 to Bolich and Burke, Inc. a. Kurtz abstained from three (3) other votes taken approving bills totaling $10,983.50. 25. Kurtz has taken the following actions as a supervisor regarding bill lists which include payments to Bolich and Burke, Inc.: Kurtz, 98- 002 -C2 Page 7 Meeting Check Date Number Amount 01/03/96 4177 $ 562.50 03/20/96 4253 $ 803.00 04/17/96 4299 $ 994.00 09/18/96 4479 $ 9,618.00 11/20/96 4547 $ 3,980.00 12/18/96 4619 $ 3,286.00 4620 $ 2,426.00 01/06/97 4634 $ 562.50 03/17/97 4742 $ 30.00 04/16/97 4770 $ 245.00 4773 $ 1,316.00 10/15/97 4991 $ 7,636.00 11/19/97 5040 $ 4,278.00 12/17/97 5061 $ 1,833.00 03/17/98 5222 $ 426.04 04/21/98 5236 $ 548.00 Official Action Abstain Abstain MotionNote Abstain SecondNote SecondNote (Included) SecondNote MotionNote SecondNote (Included) SecondNote SecondNote SecondNote MotionNote SecondNote Recorded Vote 2 -0 -1 2 -0 -1 3 -0 2 -0 -1 3 -0 3 -0 (Included) 3 -0 3 -0 3 -0 3 -0 3 -0 3 -0 3 -0 3 -0 3 -0 26. Kurtz, in her official capacity as a West Mahanoy Township Supervisor, signed the front side of two (2) checks totaling $974.00 issued to Bolich and Burke Inc. for insurance premiums. a. Kurtz signed the front side of township check no. 5222 in the amount of $426.04 on March 18, 1998. b. Kurtz signed the front . side of township check no. 5236 in the amount of $548.00 on April 3, 1998. 27. Regina Kurtz is the Bolich and Burke, Inc. agent of record for insurance coverage sold to West Mahanoy Township. a. Kurtz receives sales commissions on policies sold as outlined in Finding No. 24. b. Sales commissions received by Kurtz range between five (5) and ten (10) percent of the policy premiums. 28. Procedurally Bolich and Burke, Inc. is invoiced directly from the insuring company. a. Kurtz's commission payment is figured into this billing and stated as such. b. Bolich and Burke, Inc. pays the insuring company directly for the coverage with the commission earned subtracted from the amount due. c. Bolich and Burke, Inc. bills West Mahanoy Township directly for the entire amount of the coverage including the commission. (1) Commission amounts paid are not detailed in these billings. 29. Business records of Bolich and Burke, Inc. detail commission payments received by Kurtz from the sale of insurance coverage to West Mahanoy z, 98- 002 -C2 Page 8 Township. This commission was combined with commission[s] from other insurance sales to form her salary. 30. Regina Kurtz has received the following commission amounts from the sale of insurance to West Mahanoy Township since 1996 when she became a supervisor: Date 01/15/96 05/22/96 07/08/96 08/11/96 08/22/96 08/22/96 09/17/96 10/16/96 10/16/96 10/16/96 10/23/96 10/31/96 10/31/96 11/06/96 11/06/96 11/06/96 11/11/96 1996 Total Policy Number 68332800 D31840715 D31840715 44UENSB2985 44UENSB2986 44CESSB2433 PL00054068 VFISPE6000068 VFISCM 1003305 PE6000068 P0- 000580935 C14551 -0 VFIS -CM 1003854 VFISCM1004092 VFISCL0004808 VFISCM1004085 44UENSB2986 01/03/97 22149285 03/28/97 VFISCM1004085 03/28/97 VF1SCM1003854 09/24/97 PEO- 0003616 09/24/97 CA0- 00000099410 10/07/97 VFISPE6000080 10/07/97 VFISCM1004092 10/07/97 VFISCM1003854 10/10/97 VFISCL0004551 10/20/97 VFISCM1003305 10/28/97 VFISCM1004085 10/28/97 VFISCL0004808 11/06/97 VFISPE6000080 1997 Total 01/13/98 01/15/98 03/20/98 03/27/98 1998 Total 68685003 Treasurer Bond 68332800 Secretary Bond CAO- 00000099410 Business Auto VFISCM 1004085 Auto Policy Coverage Commission Secretary Bond $ 78.75 Liability $ 59.00 Liability $ 29.00 Property $ 39.57 Business Auto $ 174.30 Liability $ 146.82' Law Enforcement $ 24.98 Portable Equipment $ 57.50 Auto Policy $ 186.50 Portable Equipment $ 57.50 Public Official $ 67.03 Portable Equipment $ 122.30 Fire Company $ 97.00 Auto Policy $ 68.90 Portable Equipment $ 254.70 Auto Policy $ 72.40 Auto Policy $ 111 $ 1,537.38 Treasurer Bond Auto Fire Company Public Official Business Auto Portable Equipment Auto Fire Company Portable Equipment Auto Policy Auto Policy Portable Equipment Fire Company $ $ $ $ $ $ $ $ 1,455.00 $ 90.00 $ 78.75 $ 23.25 $ 54.80 $ 246.80 90.00 72.40 96.90 220.50 161.30 33.80 79.50 147.60 63.30 184.10 54.90 221.90 28.80 31. Kurtz realized a private pecuniary benefit of $3,239.18 from the sale of insurance coverage to West Mahanoy Township. The private pecuniary benefit is based on the total commissions received by Kurtz since taking office on January 3, 1996. Kurtz, 98- 002 -C2 Page 9 a. 1996 commissions received b. 1997 commissions received c. 1998 commissions received Total $1,537.38 $1,455.00 $ 246.80 $3,239.18 B. Testimony 32. Vincent J. Dopko ( "Dopko ") is Chief Counsel of the State Ethics Commission ( "SEC "), and has served in that capacity for approximately 12 years. a. ID -13, page 1 is a letter from the Respondent to the SEC, requesting an Advice of Counsel prior to declaring her candidacy for supervisor of West Mahanoy Township (see, Findings 13 and 39). (1) The letter is printed on letterhead for Bolich and Burke, Inc. ( "Bolich and Burke "), Regina Kurtz, President. (2) The only person named on the letterhead other than the Respondent is indicated as having died in 1988. b. An Advice of Counsel ( "Advice ") is a document issued by the Chief Counsel of the SEC to a requestor, as to the propriety of proposed conduct under the Ethics Act. (1) The Chief Counsel's authority to issue Advices of Counsel is derived from the Ethics Act and the Regulations of the SEC. (2) Under certain conditions, an Advice can provide to the requestor a defense to an enforcement action by the Commission, and evidence of good faith conduct in other civil or criminal proceedings. (3) An Advice does not afford a defense to a requestor who does not truthfully disclose the material facts. c. Dopko received and reviewed the Respondent's letter of November 23, 1994. (1) From his review of Respondent's letter, Dopko was under the impression that there were two insurance agents involved in the Township's insurance account: the Respondent, and some other insurance agent for brokerage of the account. d. Dopko issued Kurtz, Advice of Counsel, No. 94-643 (ID -13, pages 2 -8) in response to Respondent's November 23, 1994 request letter. (1) The Advice set forth the requirements and restrictions of Sections 3(a), 3(f), and 3(j) of the Ethics Act under the facts as submitted by the Respondent (see, Findings 14 and 40). e. When issuing an Advice, Dopko responds to any specific questions posed by the requestor. Kurtz, 98- 002 -C2 Page 10 f. The Respondent did not ask any specific questions as to voting on checks, or a treasurer's report as a whole. g. A requestor who does not understand an Advice can ask for a supplemental advice or additional advice. The Respondent did not ask for a supplemental advice or for additional advice. i. A requestor may appeal an Advice of Counsel to the Commission. j. Advice of Counsel No. 94-643 apprised the Respondent of her right to appeal the Advice, the appeal process, and the appeal deadline. k. There was never any appeal of Advice of Counsel No. 94 -643. 33. Theodore L. Buriak ( "Buriak ") is a Supervisor for the Township, and has served in that capacity continuously since February of 1993. a. Buriak was previously employed for more than 22 years as a workers' compensation adjustor and consultant. b. Buriak served as Chair of the Township Board of Supervisors from February or March of 1993 until January of 1998. c. Buriak has also previously served as the appointed treasurer of the Township Board of Supervisors. d. The Township purchases various forms of insurance, including: workers' compensation insurance; errors and omissions insurance for public officials; law enforcement liability insurance; property and casualty insurance for Township buildings and equipment; auto insurance; and insurance coverage for fire companies. e. Bolich and Burke has served as the insurance agent for the Township during the entire time Buriak has served as a Township Supervisor. f. The Township insurance policies come due for renewal each year. (1) The major insurance policies, including errors and omissions insurance, law enforcement liability insurance, business auto insurance, and property and casualty insurance, come due in August or September. (2) Policies for the fire companies come due at different. times. Each year, the process utilized by the Township in renewing its insurance policies was to pay the invoices received from Bolich and Burke. g. (1) The current Chair of the Township Board of Supervisors is William O'Donnell ( "O'Donnell "). (1) There were no public advertisements soliciting insurance bids. Kurtz, 98- 002 -C2 Page 11 (2) There was no formal review of insurance bids at a public meeting. h. The Township pays its bills according to the following procedures. (1) A voucher is prepared for each bill. (2) The treasurer writes out a check to pay the bill. (a) The check is signed by two Supervisors. (3) All bills are set forth in the treasurer's report. (a) For each bill, the treasurer's report lists the date of payment, check number, payee, amount, and related accounting code. (4) Treasurer's reports are filed monthly. (5) Treasurer's reports are voted upon by the Township Board of Supervisors at the regularly scheduled meetings. i. Respondent had the treasurer's reports prior to the meetings and had some opportunity to review them. (1) There were occasions when the Respondent had questions about the treasurer's reports. (2) The minutes reflect occasions when Respondent abstained from voting on the treasurer's report and indicated that she had not received it within a sufficient amount of time for review (see, Findings 43b, d). Respondent participated in votes on treasurer's reports which included payments to Bolich and Burke (sgg, Findings 25 and 43). k. After the Respondent took office, there were occasions when Buriak spoke to the Respondent on Township insurance matters. (1) Respondent participated in these discussions in both her public capacity as a Township Supervisor and her private capacity as the Township's insurance agent. (2) Respondent participated in her capacity as a Township Supervisor in discussions of the Township Supervisors on Township insurance matters such as increasing coverage or obtaining coverage for certain equipment. (3) Respondent subsequently effectuated the changes to the Township's coverage in her capacity as the Township's insurance agent. I. For the period from January, 1996 through December, 1997, Buriak was not aware of any insurance agent other than the Respondent that the Township went to on insurance coverage matters. Kurtz, 98- 002 -C2 Page 12 m. During the summer of 1997, Buriak received quotes from the Kilmer Insurance Agency ( "Kilmer ") and the Varano Insurance Agency, Inc. ( "Varano ") for insurance coverage for the Township. (1) The Township had not advertised for bids on the insurance. (2) Buriak stated that each of these agencies requested copies of "loss runs" for use in preparing a proposal. (a) A "loss run" is a payment or loss history which normally covers a three -year period. (3) Loss runs are obtained from the current agent. (4) Buriak testified that in the insurance industry, it is common knowledge that when loss runs are requested, someone is interested in proposing a bid for services to the insured. (5) Buriak testified that on at least two separate occasions prior to the August 20, 1997 meeting of the Supervisors, he asked the Respondent for a three -year loss run for the Township's insurance. (a) Buriak stated that when he asked for the Toss runs, he told the Respondent that there were indications that others were interested in bidding on the Township's business and needed the Toss runs to make an accurate proposal. (7) Buriak stated that the Toss runs were not received. (8) A quote can be submitted even without Toss runs. (9) Buriak stated that to the best of his knowledge, the Kilmer and Varano proposals were submitted without the use of loss runs. n. ID -14, pages 2 -20 constitutes the Kilmer proposal (see, Findings 19 and 41). (1) The proposal is dated July 31, 1997 (see., Finding 41). (2) ID -14, page 4 is a premium summary listing the types of coverage on which Kilmer was bidding. (a) The listed coverages were those which would have come due in August, including: property insurance; general liability insurance; inland marine insurance; automobile insurance; employee benefits liability insurance; public official liability insurance; and law enforcement liability insurance. (b) Buriak testified that this bid did not include insurance for the fire departments, which was handled separately and came due and payable at different times. (c) The "total annual premium" listed in the proposal is $9,859.00. Kurtz, 98- 002 -C2 Page 13 (3) It was Buriak's opinion that the Kilmer proposal was an excellent proposal which provided some extended coverages that the Township did not have with the Hartford companies. o. ID -15 is a copy of the proposal from the Varano Agency (see Findings 18 and 42). (3) The types of coverage listed on the proposal include: property insurance; general liability insurance; automobile insurance; inland marine insurance; public official liability; and ;law enforcement liability. p. Buriak did not distribute the Varano Agency or Kilmer Agency proposals to the other Supervisors. (1) Buriak stated that the proposals were left on the top of his desk in the Supervisors' room in the Township Building, for everyone to Zook at. (a) Buriak stated that this was a normal Township practice. Buriak testified that a brochure from Bolich and Burke outlining the Hartford plans called for a $13,000 premium for the coverages that the Township had at the time (summer, 1997). (a) Buriak stated that the $13,000 premium was about the same or a little higher than the premium the Township had paid the previous year. r. Buriak testified that after the August 20, 1997 public meeting, all of the Supervisors, including the Respondent, discussed the Varano and Kilmer proposals in the back room /Supervisors' room. (1) Buriak testified that there was no one present in the room other than the three Supervisors. q. (1) The proposal is dated July 31, 1997. (2) Buriak testified that the proposal was received on or about July 31, 1997, prior to the Township Supervisors' meeting in August, 1997. (a) Buriak stated that no member of the public was invited or present. (b) Buriak stated that this gathering was not advertised. (c) Buriak stated that neither the Varano Agency nor the Kilmer Agency were invited. (2) Buriak testified that at this gathering of the Supervisors, he picked up the proposals and showed them to the Respondent. (3) Buriak testified that the Respondent looked at the proposals and said, "I think we can do better than that." Kurtz, 98- 002 -C2 Page 14 (a) Buriak stated that the Respondent said that they could switch companies and get a better price for the Township (Tr. at 94). (b) Buriak stated that in all the years he served prior to 1997, the Respondent had never previously indicated any consideration of switching insurance carriers (Tr. at 95). (4) Buriak testified that as a result of this meeting, Respondent provided a bid of $8,101 for 1997 -1998. (a) At $8101, the total premium for insurance through Bolich and Burke was the lowest of the three companies. s. Buriak testified that if on the evening of August 20, 1997 the Respondent had not offered to do better on insurance coverages, he would have recommended that the Kilmer Agency be given the Township's business. t. Buriak testified that the decision to accept Respondent's proposal on the insurance was made by all three of the Supervisors: Buriak, Supervisor Munley, and the Respondent (Tr. at 114 -118.) (1) Buriak acknowledged that in February, 1998, he told Special Investigator Dan Bender that the Respondent did not play any role in reviewing insurance proposals, and that her only involvement was participating in voting on treasurer's reports which included payments to Bolich and Burke (Tr. at 151 -152.) (a) When asked, "Why did you tell him that and then come here today and testify that she reviewed those proposals on August 20th ?" Buriak responded, "Because past practice was she never did, but in this particular case when we reviewed the Varano and the Kilmer policies, she did have an active role in taking a look at them." (Tr. at 152.) (b) Buriak characterized his prior statement to Bender as "inadvertent" (Tr. at 114 -118; 142). u. The insurances that were due for renewal in August, 1997 were those set forth in ID -17, page 91. (1) August 20, 1997 would have been after the August 11, 1997 invoice date for the insurances then due. (2) Buriak stated that it was typical procedure for Bolich and Burke to invoice the Township a couple of weeks prior to renewals. (3) The August 11, 1997 invoice from Bolich and Burke was not paid until September 23, 1997 (see, Finding 43j). (a) Buriak testified that the time between the invoice date and payment date (43 days) was unusual (see. Finding 43r). Kurtz, 98- 002 -C2 Page '15 (b) Buriak stated that normally while he (Buriak) was treasurer, the Township tried to pay its bills as soon as they came due, especially on insurances. (c) Buriak testified that if proposals were to be reviewed, it would make common sense to wait until the August 20, 1997 meeting. v. Buriak testified that ID -18 was submitted by the Respondent to the Township Board of Supervisors in 1998, prior to the 1998 renewal of insurance. w. As Chairman of the Township Board of Supervisors, it . was customarily Buriak who controlled what was put out for bids. (1) Buriak did not direct or require that the Township's insurance policies be put out for bids. (2) Buriak stated that as Chairman of the Township Board of Supervisors, he did not require an "open and public bidding process" for the Township insurance business because, based upon the Township Code, insurances were exempt from the bidding process, and, even if there were bidding, the Township did not have to accept the low bid. x. Buriak testified that he first became aware that the Respondent received an Advice of Counsel from the SEC approximately mid- way through her election campaign, prior to her assuming office. (1) Buriak stated that he first became aware that the Advice contained a provision regarding a section of the Ethics Law that would require a certain bidding process in December, 1998 when John J. Contino, Esquire, Executive Director of the SEC showed it to him. (2) Buriak stated that he had not previously read that section of the. Advice. y. In 1997, Buriak was Campaign Manager for Supervisor Munley. (1) Munley was running for re- election in November, 1997. (2) O'Donnell was running against Munley. z. O'Donnell defeated Munley in the November, 1997 election. aa. When O'Donnell assumed office in January, 1998, there was a shift in control of the Township Board of Supervisors. (1) Prior to January, 1998, Buriak and Munley were the majority and Respondent was the minority. (2) After January, 1998, Respondent and O'Donnell were the majority and Buriak was the minority. Kurtz 98- 002 -C2 Page 16 bb. As of the January, 1998 reorganization meeting when O'Donnell had taken office, Buriak no longer served as Chairman of the Township Board of Supervisors or as the appointed Treasurer. (1) O'Donnell was elected Chair by the votes of Respondent and O'Donnell. (2) Respondent and O'Donnell voted to award the job of Treasurer to the Township Secretary ( Michalik), who then served in both capacities. (a) When Buriak had served as Township Treasurer, he had received compensation for that job in the amount of $7,500 per year. (b) In 1998, Michalik received an increase in salary of approximately $2,500 per year for performing the additional services of Treasurer. (c) As a result of the change, the Township saved approximately $ 5,000 per year and Buriak lost $7,500 per year in income. cc. Buriak testified that since the January, 1998 reorganization meeting, he has not been given the opportunity to sign Township checks except for one occasion when the Respondent was away. 34. James J. Munley ( "Munley ") served as a Supervisor for the Township from 1992 through December 31, 1997. a. Munley also previously served as an auditor for the Township from 1990 to 1991. b. The Township's bills are paid by a treasurer's report that is voted on at the meeting. (1) The treasurer's report is read and voted on as a whole. (2) There is never a specific line item vote on each bill to be paid. c. Munley was not aware of any agent other than the Respondent being involved with the handling of the Township's insurances. d. Munley testified that in the summer of 1997, the Township received quotes from Kilmer, Varano, and Bolich and Burke for the provision of certain types of insurance to the Township. e. Munley did not receive the Kilmer and Varano quotes in his "box" at the Township. f. Munley testified that the Varano and Kilmer proposals were on the top of Buriak's desk for a couple of weeks prior to the August 20, 1997 meeting. Kurtz, 98- 002 -C2 Page 17 g. (1) Munley testified that the process in the Township was for insurance items to be placed on Buriak's desk because he was the Chairman. (2) Munley testified that other items were to the Supervisors. (a) Each Supervisor had a desk with box. copied and distributed an in -box and an out- Munley stated that the Township Secretary told Munley the Township had received some items related to the insurance. h. Munley stated that he looked at the quotes. i. Munley testified that on August 20, 1997, following the regular meeting of the Township Board of Supervisors, the Township Supervisors discussed the insurance proposals in the Supervisors' office. (1) Munley stated that the Supervisors would always go to that room for discussion after the meeting. (2) Munley stated that Munley, Buriak, and the Respondent were present. (3) Munley stated that the gathering was not publicly advertised and no one from the public was in that room. (4) Munley stated that neither of the other two bidders were invited to attend that discussion. (5) Munley stated that Buriak mentioned that there were quotes in on the insurance. (a) Munley stated that Munley and the Respondent were present when Buriak made that statement. (b) Munley stated that the proposals were right there at that time. (c) Munley testified that the Respondent said she had seen the quotes, and that she said, "I know we can do better than that." (Tr. at 175.) (d) Munley stated that no further discussion on the matter occurred at that point. (1) Munley did not recall any discussion at that gathering about switching insurance companies. (e) Munley testified that if the Respondent had not indicated an ability to "do better than that," he would have asked for a discussion on the bids to see what was the difference in the coverage (Tr. at 176). Egriz 98- 002 -C2 Page 18 J• Munley stated that at the. September, 1997 meeting, Buriak told him that the Township had received a quote from Bolich and Burke that was lower than the Varano quote, for the same coverage. k. In 1997, Munley ran for re- election but lost to O'Donnell, the current Chairman of the Board of Supervisors. (1) Buriak was Munley's campaign manager. (2) The Respondent supported O'Donnell as a candidate. I. When the Respondent ran for Supervisor in 1996, Munley supported her opponent, Mr. Griffin. 35. William O'Donnell ( "O'Donnell ") is the Chairman of the Township Board of Supervisors, and first took office as a Supervisor in January, 1998. a. O'Donnell previously served as Chief of Police in the Township. b. O'Donnell stated that there are two Democratic parties in the Township. (1) O'Donnell stated that after he and others supported Buriak when Buriak first ran for office, Buriak turned against the people that had helped him and started his own Democratic party. c. When the Respondent ran for office, Buriak and Munley assisted Griffin, the Respondent's opponent. d. O'Donnell stated that when Buriak was the Chairman of the Township Board of Supervisors, the Respondent was told at a public meeting that she was not privy to certain information. e.. Buriak has opposed O'Donnell on issues relating to O'Donnell's disability and pension from the Township police force. f. In the 1997 election, O'Donnell defeated Munley. (1) The Respondent openly supported O'Donnell in the election. (2) Buriak was Munley's campaign manager. g. Prior to O'Donnell's election to the office of Township Supervisor, the Respondent was the minority Supervisor on the Board. h. Presently, the Respondent and O'Donnell are the majority and Buriak is the minority. i. At the January, 1998 re- organization meeting of the Board of Supervisors, the Respondent and O'Donnell voted to remove Buriak from the position of Treasurer and to pay the Township Secretary to perform both jobs. (1) The change resulted in savings for the Township. Kurtz, 98- 002 -C2 Page 19 j. The Township Board of Supervisors votes on the treasurer's report as a whole. (1) This process has been used continuously since before O'Donnell became a Supervisor. k. The Respondent pays close attention to the bill lists. 36. Regina Kurtz is the Respondent. a. In her private capacity, the Respondent is President of Bolich and Burke. b. Bolich and Burke began handling the Township's insurance busines in 1978. c. Since 1978,. Bolich and Burke has always handled the Township's insurance. d. Respondent testified that from. 1978 to the present, there were several changes in the companies that provided the Township's insurance programs. e. Respondent stated that she decided to run for Township. Supervisor after being asked repeatedly to do so. f. Respondent testified that when she sent the November 23, 1994 letter (see, Findings 13 and 39) to the SEC requesting the Advice, she had concerns about being the insurance agent for the Township and running for Supervisor. g. (1) Respondent testified that she was primarily concerned with whether she could run for office. With regard to the final sentence of her November 23,. 1994 request letter, pertaining to her brokering the Township's account through another agent, Respondent testified that at that time, she did broker the Township's insurance through another agency, which she identified as "Woodring Roberts" of Bethlehem. (1) Respondent stated that she continues to do business with Woodring Roberts. (2) Respondent testified that such a brokerage arrangement is done when the companies that the agent handles do not provide the coverage that is desired, or a better rate is available elsewhere. (3) Respondent testified that the Township's policies were written through Woodring Roberts. (4) Respondent stated that Woodring Roberts did not deal directly with the Township. (5) Respondent handled all of the transactions and problems with the Township. Ku rtz, 98 -002 -C2 Page 20 J• (6) Respondent stated that Bolich and Burke would bill the Township for the total premium, which included the commission. (7) Respondent testified that she (Respondent) would send the entire premium to Woodring Roberts, which in turn would issue a check to the Respondent for her commission. (8) Respondent testified that the fees for the Township brokerage were split between the Respondent and Woodring Roberts. (a) Respondent stated that Woodring Roberts would receive different percentages of the commissions on different coverages. h. When the Respondent received Advice of Counsel No. 94- 643,she read it. (1) Respondent testified that she did not really understand what was said in the Advice. (2) Respondent stated that she never showed the Advice to her son, who was a lawyer at the time, nor did she ask her son . questions about it. (3) When Respondent took office in 1996, she did not ask the Township Solicitor (Fanelli) to review the Advice for her. (a) Respondent stated that Fanelli never returned her telephone calls. Respondent acknowledged that she did see the section in Advice of Counsel, No. 94-643 regarding the requirements for an open and public process. With regard to her voting on the treasurer's reports, Respondent stated that when she received the treasurer's reports, she reviewed them line -by -line to make sure all of the payments were valid. (1) Respondent considered the Bolich and Burke bills to be valid. (2) Respondent stated that if she had abstained, the Bolich and Burke bills would still have been paid by a 2 -0 -1 vote. k. Respondent stated that the only reason she signed checks to Bolich and Burke was so that the insurance would not lapse. (1) Respondent stated that if Buriak was not available to sign, she signed the check to Bolich and Burke. (2) After O'Donnell took office, Respondent and O'Donnell signed the checks. (3) Respondent stated that when she signed the two checks at issue in this case (see, Findings 26 and 43m, n), she did not believe that she was in violation of the State ethics laws. Kurtz, 98- 002 -C2 Page 21 I. The renewal date on the Township's property, liability, auto, law enforcement, and public officials insurance coverages is August 11 of every year. (1) Respondent testified that she has never allowed anyone's insurance to lapse. (2) Respondent stated that the Township always has a policy by the August 11 due date. m. Respondent testified that the Township had a policy by the August 11, 1997 due date at the premium of $8,101. (1) Respondent testified that the lower premium was due to her finding another company, "Go -Pro," that had only been in business for about four years and that had extremely good rates. (2) As to the fact that this change occurred at the same time two competing proposals were submitted to the Township, Respondent testified "It just happened that way." (Tr. at 272.) n. Respondent stated that there was no formal proposal from Bolich and Burke prior to August 11, 1998 because Bolich and Burke had the policy the year before and was working on the basis of a renewal. (1) Respondent testified that no quote on behalf of Bolich and Burke for 1997 ever existed in the amount of anything but $8,101. (2) Respondent testified that she never submitted a bid by Bolich and Burke in 1997 for a premium of $13,000 or more. o. Respondent testified that there was never a bill submitted to the Township for coverage for 1997 to 1998 at a $13,000 premium. (1) Respondent testified that the only bill for $13,000 would have been for the prior year. p. Respondent testified that she does not specifically recall talking with Buriak and Munley about the Township insurance after the August 20, 1997 meeting. q. Respondent testified that she never saw the Varano and Kilmer bids in 1997 (Tr. at 242 -243). (1) Respondent stated that she was told at some point that there were other bids, but she did not see them. (2) Respondent stated that she did not recall whether she was told the amounts of the bids. (3) Respondent testified that there were no bids placed in her box. Kum, 98- 002 -C2 Page 22 (4) Respondent testified that she did not have the habit of going to anyone else's desk. (a) Respondent stated that her own desk was in the foyer of the building, and was not in the Supervisors' room. (5) Respondent stated that she did not see the Varano and Kilmer bids until on or about September 28, 1998 when she asked the Township Secretary to fax copies of both proposals to her (Tr. at 243 -244). (6) As to the Varano quote (ID -15), Respondent stated that there was insufficient information to determine the actual coverage to be provided. (7) As to the Kilmer quote (ID -14), Respondent stated that there were differences between that quote and the coverage provided through Bolich and Burke, which differences would favor Bolich and Burke. r. Respondent stated that she has never previously been the subject of any disciplinary or ethics investigation. s. Respondent provided documents to Special Investigator Dan Bender under a subpoena. t. Respondent stated that she prepared ID -18 specifically for Special Investigator Bender, so that he would know what she had collected over the last few years (Tr. at 262). u. ID -18 sets forth the increases in the indicated Township insurances from 1994 until 1997, when the premium dropped by more than $5,300. (1) Respondent testified that the premiums prior to the drop were for policies that were all with Hartford. v. When asked whether there were formal bids advertised for the most recent insurance renewal in August of 1998, Respondent testified that the Township never put the insurance out for bid (Tr. at 272). (1) Respondent testified that other bids were received before the August, 1998 vote (Tr. at 277). w. Respondent stated that she had no control over whether the Township put the insurance out for bid. x. Respondent acknowledged that she does have control over whether Bolich and Burke chooses to do business with the Township (Tr. at 273). (1) When asked, "[Y]ou did not choose to forego doing business with the Township as a private entity. Is that correct ?" Respondent replied, "No, I did not choose to forego. I mean, business is business." (Tr. at 274.) Kurtz, 98- 002 -C2 Page 23 C. Documents 37. ID -1 is a copy of the Complaint by which the Investigative Division initiated a preliminary inquiry as to the Respondent. a. The Complaint was dated January 6, 1998 and was received by the SEC on January 7, 1998. b. The Complaint involved Respondent's vote to hire her son, Robert Kurtz, as West Mahanoy Township Solicitor. 38. ID -6, pages 1 -2 is a letter dated May : 1, 1998 from John J. Contino, Executive Director of the SEC, to the Respondent. a. By this letter, the Investigative Division dismissed the specific allegation as to Respondent's vote to appoint her son to the position of Township Solicitor and to fix his compensation for such position, such that it is not part of these proceedings, (see, Tr. at 12). 39. ID -13, page 1 is a letter dated November 23, 1994 from the Respondent to the State Ethics Commission, requesting an advisory. (a) The letter was received by the State Ethics Commission on November 28, 1994. (b) The letterhead is from "Bolich and Burke, Inc., Regina J. Kurtz, President." (c) The contents of the letter are set forth in Finding 13. 40. ID -13, pages 2 -8 is Advice of Counsel No. 94 -643, issued December 9, 1994 by Vincent J. Dopko ( "Dopko "), Chief Counsel of the State Ethics Commission (seg, Findings 14 and 32). a. The Advice is addressed to Regina J. Kurtz, President of Bolich and Burke, Inc. ( "Bolich and Burke "). b. The Advice was issued in response to the Respondent's letter of November 23, 1994 (see, Findings 13 and 32). c. The Advice quoted, verbatim, Sections 3(a), 3(f), and 3(j) of Act 9 of 1989, and the definitions of "conflict" or "conflict of interest," "authority of office or employment," "business with which he is associated," "financial interest," and "contract," as set forth in Section 2 of Act 9 of 1989. Kurtz, Advice of Counsel, No. 94-643 at 2 -5 (ID -13, pages 3 -6). d. In applying Sections 3(a) and 3(j) to the facts submitted by the Respondent, the "Discussion" portion of the Advice included the following: ...Your insurance agency would be a business with which you are associated. Kurtz, 98- 002 -C2 Page 24 You would have a conflict of interest as to matters involving your insurance agency and specifically as to matters involving the Township's account which you broker through another agent. It is additionally noted that pursuant to Section 3(a) of the Ethics Law, a public official may not use the authority of public office or confidential information received by being in that position to the detriment of business competitors. See, Pepper, Opinion 87 -008. In each instance of a conflict of interest, you would be required to abstain from any participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. Kurtz, Advice of Counsel, No. 94-643 at 5 -6 (ID -13, page 7). e. In applying Section 3(f) to the facts submitted by the Respondent, the "Discussion" portion of the Advice stated: You are further advised. that Section 3(f) must be observed as to contracts between a business with which you are associated and your governmental body (West Mahanoy Township), where the value of the contract would be $500.00 or more. Kurtz, Advice of Counsel, No. 94-643 at 6 (ID -13, page 7). f. The substantive portion of the "Conclusion" of the Advice is quoted at Finding 14. 41. ID -14, pages 2 -20 is an insurance proposal for West Mahanoy Township from the Kilmer Insurance Agency (see, Finding 19). a. The proposal is dated July 31, 1997. b. The listed coverages, premiums, and proposed carriers are set forth in Finding 19. 42. ID -15, pages 1 -2 is a copy of an insurance proposal for West Mahanoy Township from Varano Insurance Agency, Inc. (see, Finding 18). a. The listed coverages and premiums are set forth in Finding 18. b. The proposal indicated that it was subject to, inter alia, three -year Toss runs. 43. ID -17, pages 1 -129 consists of official records of West Mahanoy Township. a. At the January 3, 1996 meeting of the Township Board of Supervisors, Respondent abstained from voting on the treasurer's report (ID -17, page 2). (1) The treasurer's report was approved by a vote of 2 -0 -1. Kurtz, 98- 002 -C2 Page 25 (2) The treasurer's report included check number 4177 dated December 26, 1995 payable to Bolich and Burke in the amount of $562.50, which check was deposited in a Bolich and Burke bank account on or about December 29, . 1995 (ID -17, pages 4 -5). (a) Per invoices from Bolich and Burke, one of which does not reflect the date and one of which is incorrectly dated, this payment included premiums for the 1996 treasurer bond (policy number 22149285) and secretary bond (policy number 68332800) with Western Surety (ID -17, page 7). (i) The invoices were paid December 27, 1995. (ii) The renewal dates for the policies were indicated to be January 3, 1997 and January 15, 1997 respectively. b. At the March 20, 1996 meeting of the Township Board of Supervisors, Respondent abstained from voting on the treasurer's report for the stated reason that she did not receive the report in sufficient time for review (ID -1 page 9). (1) The treasurer's report was approved by a vote of 2 -0 -1. (2) The treasurer's report included check number 4253 dated February 15, 1996 payable to Bolich and Burke in the amount of $803.00, which check was deposited in a Bolich and Burke bank account on or about February 21, 1996 (ID -17, pages 11 -12). (a) Per an invoice dated December 14, 1995 from Bolich and Burke, this payment was for an additional premium to add a vehicle on policy number 44 UENSB2908 with Hartford (ID -17, page 14). (i) The policy was for the Township. (ii) The invoice was paid February 20, 1996. (iii) The renewal date for the policy was not indicated. c. At the April 17, 1996 meeting of the Township Board of Supervisors, Respondent made the motion and voted to approve the treasurer's report (ID -17, page 16). (1) The treasurer's report included check number 4299 dated March 25, 1996 payable to Bolich and Burke in the amount of $994.00, which check was deposited in a Bolich and Burke account on or about March 29, 1996 (ID -17, pages 18 -19). (a) Per an invoice dated March 15, 1996 from Bolich and Burke, this payment included a premium in the amount of $551.00, which was the second installment for business auto policy number H03544424 with Cigna (ID -17, page 22). Kurtz, 98- 002 -C2 Page 26 (i) The policy was for the William Penn Fire Company. (ii) The installment covered the period from March 15, 1996 through November 15, 1996. (iii) The invoice was paid March 27, 1996. (iv) The renewal date for the policy was indicated to be November 15, 1996. (b) Per an invoice dated March 11, 1996 from Bolich and Burke, this payment included a premium in the amount of $443.00, which was the second installment for business auto policy number H0332882A with I.N.A. (ID -17, page 22). (i) The policy was for the Shenandoah Heights ' Fire Company. (ii) The installment covered the period from March 11, 1996 through November 11, 1996. (iii) The invoice was paid March 27, 1996. (iv) The renewal date for the policy was not specifically indicated. d. At the September 18,1996 meeting of the Township Board of Supervisors, Respondent abstained from voting on the treasurer's report for the stated reason that she had just received it (ID -17, page 24.) (1) The treasurer's report included check number 4479, dated August 6, 1996, payable to Bolich and Burke in the total amount of $9,618.00, which check was deposited in a Bolich and Burke bank account on or about August 8, 1996 (ID -17, pages 26 -27). (a) . Per an invoice dated August 11, 1996 from Bolich and Burke, this payment included the total premium due for commercial auto policy number 44 UEN SB 2986 with Hartford, in the amount of $4,648.00 (ID -17, page 30). (i) The policy was for the Township. (ii) The invoice was paid August 7, 1996. (iii) The renewal date for the policy was indicated to be August 11, 1997. (b) Per an invoice dated August 11, 1996 from Bolich and Burke, this payment included the total premium due for General Liability policy number 44 CES sb 2476 with Hartford, in the amount of $3,915.00 (ID -17, page 31). (i) The policy was for the Township. Kurtz, 98- 002 -C2 Page 27 (11) The invoice was paid August 7, 1 996. (iii) The renewal date for the policy was indicated to be August 11, 1997. (c) Per an invoice dated August 11, 1996 from Bolich and Burke, this payment included the total premium due for Commercial Property and Inland Marine policy number 44 UEN SB 2985 with Hartford, in the amount of $1,055.00 (ID -17, page 31). (i) The policy was for the Township. (ii) The invoice was paid August 7, 1996. (iii) The renewal date for the policy was indicated to be August 11, 1997. e. At the November 20, 1996 meeting of the Township Board of Supervisors, Respondent seconded the motion and voted to approve the treasurer's report (ID -17, page 33). (1) The treasurer's report included check number 4547 dated October 13, 1996 payable to Bolich and Burke in the total amount of $3,980.00, which check was deposited in a Bolich and Burke bank account on or about October 17, 1996 (ID -17, pages 36 -37). (a) Per an invoice dated September 17, 1996 from Bolich and Burke, this payment included an "engineering fee" of $150.00, and a premium in the amount of $2,681.00 for Public Officials Liability policy number P0580935 with National Casualty Company of Scottsdale, for a total amount due of $2,831.00 (ID -17, page 40). (i) The policy was for the Township. (ii) The invoice was paid October 15, 1996. (iii) The renewal date for the policy was indicated to be September 17, 1997. (b) Per an invoice dated September 17, 1996 from Bolich and Burke, this payment included an "engineering fee" of $150.00, and a premium in the amount of $999.00 for Law Enforcement Liability policy number PL- 540684 with National Casualty Company of Scottsdale, for a total amount due of $1,149.00 (ID -17, page 40). (i) The policy was for the Township. (ii) The invoice was paid October 15, 1996. (iii) The renewal date for the policy was indicated to be September 17, 1997. Kurtz, 98- 002 -C2 Page 28 f. At the December 18, 1996 meeting of the Township Board of Supervisors, Respondent seconded the motion and voted to approve the treasurer's report (ID -17, page 42). (1) The treasurer's report included check number 4619 dated November 26, 1996, payable to Bolich and Burke in the total amount of $3,286.00, which check was deposited in a Bolich and Burke bank account on or about December 4, 1996 (ID -17, pages 43 -44). (a) Per an invoice dated November 15, 1996 from Bolich and Burke, this payment included a premium in the amount of $ 500.00 which was the first installment for Business Auto policy number CM 1004085 with Americah Alternative (ID -17, page 47). (i) The policy was for the William Penn Fire Company. (ii) The installment covered the period from November 15, 1996 to May 15, 1997. (iii) The invoice was paid December 3, 1996. (iv) The renewal date for the policy was indicated to be November 15, 1997. (b) Per an invoice dated November 15, 1996 from Bolich and Burke, this payment included a total premium in the amount of $346.00 for Portable Equipment policy number CL0004808 with American Altemative (ID -17, page 47). (i) The policy was for the William Penn Fire Company. (ii) The invoice does not reflect the date of payment. (iii) The renewal date for the policy was indicated to be November 15, 1997. (c) Per an invoice dated October 29, 1996 from Bolich and Burke, this payment included a total premium in the amount of $575.00 for Portable Equipment policy number PE6000068 with American Alternative (ID -17, page 48). (i) The policy was for the Altamont Fire Company. (ii) The invoice was paid December 3, 1996. (iii) The renewal date for the policy was indicated to be October 29, 1997. (d) Per an invoice dated October 29, 1996 from Bolich and Burke, this payment included a total premium in the amount of $1,865.00 for Business Auto policy number CM 1003305 with American Alternative (ID -17, page 48). (1) The policy was for the Altamont Fire Company. Kurtz, 98- 002 -C2 Page 29 (ii) The invoice does not reflect the date of payment. (iii) The renewal date for the policy was indicated to be October 29, 1997. (2) The treasurer's report included check number 4620 dated November 26, 1996 payable to Bolich and Burke in the total amount of $2,426.00, which check was deposited in a Bolich and Burke bank account on or about December 4, 1996 (10 -17, pages 43, 45). (a) Per an invoice dated November 11, 1996 from Bolich and Burke, this payment included a total premium in the amount of $689.00 for Business Auto policy number CM1004092 with American Alternative (ID -17, page 52). (i) The policy was for the West End Fire Company.' Ili) The invoice was paid December 3, 1996. (iii) The renewal date for the policy was indicated to be November 11, 1997. (b) Per an invoice dated November 11, 1996 from Bolich and Burke, this payment included a total premium in the amount of $288.00 for Portable Equipment policy number PE6000080 with American Alternative (ID -17, page 52). (1) The policy was for the West End Fire Company. (ii) The invoice was paid December 3, 1996. (iii) The renewal date for the policy was indicated to be November 11, 1997. (c) Per an invoice dated November 11, 1996 from Bolich and Burke, this payment included a premium in the amount of $816.00, which was the first installment for Business Auto policy number VFIS -CM- 1003854 -0 /000 with American Alternative (ID -17, page 53). (i) The policy was for the Shenandoah Heights Fire Company. (ii) The installment covered the period from November 11, 1996 to May 11, 1997. (iii) The invoice was paid December 3, 1996. (iv) The renewal date for the policy was indicated to be November 11, 1997. (d) Per an invoice dated November 11, 1996 from Bolich and Burke, this payment included a premium in the amount of $633.00 for Portable Equipment policy number CL 4551 -0 with American Alternative (ID -17, page 53). Kurtz, 98- 002 -C2 Page 30 g. (i) The policy was for the Shenandoah Heights Fire Company #1. (ii) The invoice was paid December 3, 1996. (iii) The renewal date for the policy was indicated to be November 11, 1997. At the January 6, 1997 regular meeting of the Township Board of Supervisors, Respondent seconded the motion and voted to approve the treasurer's report (ID -17, page 57). (1) The treasurer's report included check number 4634 dated December 3, 1996 payable to Bolich and Burke in the total amount of $562.50, which check was deposited in a Bolich and Burke bank account on or about December 6, 1996 (ID -17, pages 60 -61). (a) Per an invoice dated January 3, 1997 from Bolich and Burke, this payment included a total premium in the amount of $300.00 for Treasurer Bond policy number 22149285 with Western Surety (ID -17, page 63). (i) The invoice was paid December 5, 1996. (ii) The renewal date was indicated to be January 3, 1998. (b) Per an invoice dated January 15, 1997 from Bolich and Burke, this payment included a total premium in the amount of $262.50 for Secretary Bond policy number 68332800 with Western Surety (ID -17, page 63). (i) The invoice was paid December 5, 1996. (ii) The renewal date was indicated to be January 15, 1998. h. At the March 17, 1997 meeting of the Township Board of Supervisors, Respondent made the motion and voted to approve the treasurer's report (ID -17, page 65). (1) The treasurer's report included check number 4742 dated February 22, 1997 payable to Bolich and Burke in the amount of $30.00, which check was deposited in a Bolich and Burke bank account on or about February 28, 1997 (ID -17, pages 67 -68). (a) Per an invoice dated November 11, 1996 from Bolich and Burke, this payment was for an additional premium to add towing for certain vehicles under policy number 44 UENSB2986 with Hartford (ID -17, page 71). (i) The policy was for the Township. (ii) The invoice was paid February 25, 1997. Kurtz, 98- 002 -C2 Page 31 (iii) The renewal date was not indicated. i. At the April 16, 1997 meeting of the Township Board of Supervisors, Respondent seconded the motion and voted to approve the treasurer's report (ID -17, page 72). (1) The treasurer's report included check number 4770 dated March 21, 1997 payable to Bolich and Burke in the amount of $245.00, which check was deposited in a Bolich and Burke bank account on or about April 2, 1997 (ID -17, pages 75 -76). (a) Per an invoice dated January 24, 1997, this payment was for an additional premium to add a vehicle on policy number CM1004092 with American Alternative (ID -1 7, pages 80 -81). (i) The policy was for the West End Fire Company. (ii) The invoice was paid April 1, 1997. (iii) . The renewal date was not listed. (2) The treasurer's report included check number 4773 dated March 21, 1997 payable to Bolich and Burke in the total amount of $ 1,316.00, which check was deposited in a Bolich and Burke bank account on or about April 2, 1997 (ID -17, pages 75, 77). (a) Per an invoice dated November 11, 1996 from Bolich and Burke, this payment included a premium in the amount of $816.00, which was the second installment for Business Auto policy number VFIS -CM- 1003854 -0 /000 with American Alternative (ID -17, page 84). (i) The policy was for the Shenandoah Heights Fire Company. (ii) The installment covered the period from May 11, 1997 to November 11, 1997. (iii) The invoice was paid April 1, 1997. (iv) The renewal date was not indicated. (b) Per an invoice dated November 15, 1996 from Bolich and Burke, this payment included a premium in the amount of $500.00, which was the second installment for Business Auto policy number CM 1004085 with American Altemative (ID -17, page 84). (i) The policy was for the William Penn Fire Company. (ii) The installment covered the period from May 15, 1997 to November 15, 1997. (iii) The invoice was paid April 1, 1997. Kurtz, 98- 002 -C2 Page 32 J• (iv) The renewal date was indicated to be November 15, 1997. At the October 15, 1997 meeting of the Township Board of Supervisors, Respondent seconded the motion and voted to approve the treasurer's report (ID -17, page 86). (1) The treasurer's report included check number 4991 dated September 18, 1997 payable to Bolich and Burke in the amount of $7,636.00, which check was deposited in a Bolich and Burke bank account on or about September 24, 1997 (ID -17, pages 87 -88). (a) Per an invoice dated August 11, 1997 from Bolich and Burke, this payment was for a premium in the amount of $7,636.00 for a package policy including auto, public officials, and law enforcement coverages, under policy number CA099410 PE03616 with National Casualty (ID -17, page 91). (i) The package policy was for the. Township. (ii) The invoice was paid on September 23, 1997, which was six days after the September 17, 1997 meeting of the Township Board of Supervisors (ID -17, page 85). (iii) The renewal date was indicated to be August 11, 1998. k. At the November 19, 1997 meeting of the Township Board of Supervisors, Respondent seconded the motion and voted to approve the treasurer's report (ID -17, page 92). (1) The treasurer's report included check number 5040 dated October 27, 1997 payable to Bolich and Burke in the total amount of $4,278.00, which check was deposited in a Bolich and Burke bank account on or about October 31, 1997 (ID -17, pages 94 -95). (a) Per an invoice dated October 29, 1997 from Bolich and Burke, this payment included a total premium in the amount of $575.00 for Portable Equipment policy number PE6000068 1 with American Alternative (ID -17, page 98). (i) The policy was for the Altamont Fire Company. (ii) The invoice was paid on October 29, 1997. (iii) The renewal date for the policy was indicated to be October 19, 1998. (b) Per an invoice dated October 29, 1997 from Bolich and Burke, this payment included a total premium in the Kurtz, 98- 002 -C2 Page 33 amount of $ 1,841.00 for Business Auto policy number CM1003305 with American Alternative (1D -17, page 98). (i) The policy was for the Altamont Fire Company. (ii) The invoice was paid on October 29, 1997. (iii) The renewal date for the policy was indicated to be October 29, 1998. (c) Per an invoice dated November 11, 1997 from Bolich and Burke, this payment included a total premium in the amount of $633.00 for Portable Equipment policy number CL0004551 01 with American Alternative (ID -17, page 99). (i) The policy was for the Shenandoah Heights Fire Company. (ii) The invoice was paid on October 29, 1997. (iii) The renewal date for the policy was indicated to be November 11, 1998. (d) Per an invoice dated November 11, 1997 from Bolich and Burke, this payment included a total premium in the amount of $1,229.00 for Business Auto policy number CM1003854 1 with American Alternative (ID -17, page 99). (i) The policy was for the Shenandoah Heights Fire Company. (ii) The invoice does not reflect the date of payment. (iii) The renewal date for the policy was indicated to be November 11, 1998. I. At the December 17, 1997 meeting of the Township Board of Supervisors, Respondent seconded the motion and voted to approve the treasurer's report (ID -17, page 100). (1) The treasurer's report included check number 5061 dated November 8, 1997 payable to Bolich and Burke in the total amount of $1,833.00, which check was deposited in a Bolich and Burke bank account on or about November 12, 1997 (ID -17, pages 102 -103). (a) Per an invoice dated November 15, 1997 from Bolich and Burke, this payment included a total premium in the amount of $449.00 for Portable Equipment policy number CL0004808 with American Alternative (ID -17, page 106). (1) The policy was for the William Penn Fire Company. Kurtz, 98- 002 -C2 Page 34 (II) The invoice was paid on November 11, 1997. (iii) The renewal date was indicated to be November 15, 1998. (b) Per an invoice dated November 15, 1997 from Bolich and Burke, this payment included a premium in the amount of $549.00, which was the first installment for Business Auto policy number CM10004085 [sic] with American Alternative (ID -17, page 106). (i) The policy was for the William Penn Fire Company. (ii) The installment covered the period from November 15, 1997 through May 15, 1998. (iii) The invoice was paid on November 11, 1997. (iv) The renewal date for the policy was indicated to be November 15, 1998. (c) Per invoices dated November 11, 1997 from Bolich and Burke, this payment included a total premium in the amount of $626.00 for Portable Equipment policy number PE- 6000080 with American Alternative, less a credit in the amount of $338.00 for an adjustment (ID -17, pages 107 -108 ). (i) The policy was for the West End Fire Company. (ii) The invoice was paid on November 11, 1997. (iii) The renewal date for the policy was indicated to be November 11, 1998. (d) Per invoices dated November 11, 1997 from Bolich and Burke, this payment included a total premium in the amount of $795.00 for Business Auto policy number CM 1004092 with American Alternative, less a credit in the amount of $248.00 to delete a 74GMC (ID -17, pages 107 -108). (i) The policy was for the West End Fire Company. (ii) The invoice was paid on November 11, 1997. (iii) The renewal date was indicated to be November 11, 1998. . m. At the March 17,- 1998 meeting of the Township Board of Supervisors, Respondent made the motion and voted to approve the treasurer's report (ID -17, page 110). (1) The treasurer's report included check number 5222 dated March 18, 1998 payable to Bolich and Burke in the total amount of $426.04, which check was deposited in a Bolich Kurtz, 98- 002 -C2 Page 35 and Burke bank account on or about March 20, 1998 (10 -17, pages 114, 119 -120). (a) The front of check number 5222 was signed by Respondent in her official capacity as a Township Supervisor (see, Finding 26). (b) Check number 5222 bears the notation "Treasurer's Bond" (1D -17, page 119). (c) Other Township documentation indicates that check number 5222 was for the Treasurer's Bond (ID -17, pages 116, 118). (d) Per invoices dated January 5, 1998 and January 13, 1998 from Bolich and Burke, this payment included a premium in the amount of $300.00 for Treasurer Bond policy number 68685003 with Western Surety, together with an additional premium in the amount. of $126.04 to increase the Treasurer's Bond. (ID -17, page 117). (i) The invoice was paid on March 19, 1998. (ii) The renewal date was indicated to be January 13, 1999. (2) The treasurer's report included check number 5229 dated March 19, 1998, payable to Bolich and Burke in the amount of $465.00 ID -17, page 115). (a) The official Township records before the SEC do not include check number 5229 or any supporting documentation to reflect to which policy this payment pertained. n. At the April 21, 1998 meeting of the Township Board of Supervisors, Respondent seconded the motion and voted to approve the treasurer's report (ID -17, page 121). (1) The treasurer's report included check number 5236 dated April 3, 1998, payable to Bolich and Burke in the total amount of $548.00, which check was deposited in a Bolich and Burke bank account on or about April 7, 1998 (ID -17, pages 125 -126, 128). (a) The front of check number 5236 was signed by Respondent in her official capacity as a Township Supervisor (see, Finding 26). (b) The official Township records before the SEC do not include any Bolich and Burke invoices for this payment. (c) Other Township documentation consisting of voucher number 5236 indicates the payment was for the Business Auto policy for the William Penn Fire Company (ID -17, page 124). --p- •v:._. .vm; ::•. '. t•t S t �_} r`i3rh}t 11/20/96 i . t' t .... � .. �.-0r Seconded motion and voted to approve. T q: :. ... :: ..� • •r. �>} .. 1 >" . L t 1. '?4 IXP' "af•::h'1`LtZ`\ '� " ? ix.. �v4.5i :XA a%� \Q,'Y.{Sir3�^: Approved two "engineering fees" and two policies: #P0580935 and #PL- 540684 (both with National Casualty Co. of Scottsdale). 12/18/96 Seconded motion and voted to approve. Renewed or approved the following eight policies: #CM1004085; #CL0004808; #PE6000068; #CM 1003305; #CM1004092; #PE6000080; #VFIS-CM-1003854- 0 /000; and #CL- 4551 -0 (all with American Alternative). 1/6/97 Seconded motion and voted to approve. Renewed or approved the following two bonds: #22149285 and #68332800 (both with Western Surety). 3/17/97 Made motion and voted to approve. Approved additional coverage under one policy: #44 UENSB2986 (Hartford). 4/16/97 Seconded motion and voted to approve. Approved additional coverage under one policy: #CM1004092 (with American Alternative). 10/15/97 Seconded motion and voted to approve. Approved package policy: #CA099410 PE03616 (with National Casualty). 11/19/97 Seconded motion and voted to approve. Renewed or approved the following four policies: #PE6000068 1; #CM1003305; #CL0004551 01; and #CM1003854 1 (all with American Alternative). Kugz, 98- 002 -C2 Page 36 (d) Check number 5236 bears the notation, "Policy #CM1004085." (i) This payment was for Business Auto policy number CM 1004085 with American Alternative for the William Penn Fire Company, as to which a first installment had previously been paid (see, paragraph I(1)(b) above; left aka, paragraphs (f)(1)(a), (i)(2)(b) as to prior years). (ii) This payment was the second installment as to this policy. o. At the following Township meetings, the Respondent took official actions by making or seconding motions and by voting to approve treasurer's reports, which actions had the effect of approving: 1) additional insurance coverage under then - existing policies through Bolich and Burke; 2) the renewal of insurance policies through Bolich and Burke; or 3) new insurance policies through Bolich and Burke, as follows: 12/17/97 Seconded motion Renewed or approved the following four 4/17/96 and voted to policies: #CL0004808; #CM 1004085; approve. #PE- 6000080; and #CM1004092 (all with American Alternative). 3/17/98 Made motion and Approved Treasurer Bond: #68685003 4/16/97 voted to approve. (with Western Surety). y ........ t5 2 a a '. *" c ; .6 . v . . . . •. : >....�.�..�• :��...:ry,M.�� >. a . "' ' at:� • . • a . A ,� r "vYYh W • t•.K; =:.. ?ti" •:�y < •• . ^ e" „t eas.$ x. c: X 4 +{ ,„ .. • , v s3 4 s } . )•> .'.. . . M . : Fi... fi..•..k ,,. H ..,. " �: �rc�. ..: F�?..� , saw : :,...: 4/17/96 Made motion and Approved second installments on two voted to policies: #H03544424 (with CIGNA); approve. and #H0332882A (with INA). 4/16/97 Seconded motion Approved second installments on two and voted to policies: #VFIS -CM- 1003854 -0 /000; approve. and #CM1004085 (both with American Alternative). 4/21/98 Seconded motion Approved second installment on policy and voted to #CM1004085 (with American approve. Alternative). Kurtz, 98- 002 -C2 Page 37 P. At the following Township Supervisor meetings, the Respondent took official actions by making or seconding motions and by voting to approve treasurer's reports, which actions had the effect of approving payments on previously- approved insurance policies through Bolich and Burke, as follows: q. The following official action by the Respondent as to a treasurer's report involved the approval of a payment to Bolich and Burke for an undeterminable policy: Approved payment of check #5229 in the amount of $465.00 to Bolich and Burke. 3/17/98 Made motion and voted to approve. • r. The payment of the August 11, 1997 Bolich and Burke invoice (ID -17, page 91) 43 days after the date of the invoice (on September 23, 1997), did not constitute an unusual delay (see, Finding 33u(3)). (1) In that same year, 1997, while Buriak was serving as both Chairman of the Township Board of Supervisors and Treasurer, four other Bolich and Burke invoices were paid more than 43 days after the dates of the invoices. (a) The invoice at subparagraph h(1)(a) was paid 106 days after the date of the invoice. (b) The invoice at subparagraph i(1)(a) was paid 67 days after the date of the invoice. Kurtz, 98-002-C2 Page 38 (c) The invoice at subparagraph i(2)(a) was paid 141 days after the date of the invoice. (d) The invoice at subparagraph i(2)(b) was paid 137 days after the date of the invoice. (2) Two of the above four invoices were second installments for which the invoices repeated the invoice dates from the first installments (compare, 43i(2)(a) with 43f(2)(c); compare, 43i(2)(b) with 43f(1)(a)). (3) The other two invoices, which were for additional premiums under existing policies, did not repeat a prior invoice date (compare, 43h(1)(a) with 43d(1)(a); compare, 431(1)(a) with 43f(2)(a)). s. One commission in the amount of $78.75 received by the Respondent for policy number 68332800 was for the 1996 Secretary Bond which was approved by the Township Board of Supervisors at the January 3, 1996 meeting without Respondent's participation. (1) January 3, 1996 was the day Respondent first took office (see, Finding 7). t. Two commissions totaling $88.00 received by the Respondent for policy #D31840715 were for a liability policy that was in effect before the Respondent took office, as to which there was no Board action after the Respondent took office (see, Findings 21, 30). 44. ID -18 is a one -page document on Respondent's letterhead from Bolich and Burke (see, Findings 36t, u). a. ID -18 lists the amounts that the Township was charged for property insurance, general liability insurance, auto insurance, law enforcement insurance, and public official insurance, through Bolich and Burke, commencing in 1994. (1) For 1994 -1995 the total was .$11,933. (2) For 1995 -1996 the total was $12,303 (3) For 1996 -1997 the total was $13,498. (4) For 1997 -1998 the total was $8,101. b. The document states: By changing companies the township was saved $5397.00 for the 97-98 term." c. The document states: "The renewal for the 1998 -99 term will save the township $1188.00" III DISCUSSION: At all times relevant to this matter, the Respondent, Regina Kurtz (hereinafter "Respondent" or "Kurtz ") has been a public official subject to the provisions of the Kurtz, 98- 002 -C2 Page 39 Public Official and Employee Ethics Act ( "Ethics Act "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, gt sea/Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 gq. The issue before us is whether Kurtz violated Sections 3(a)/1103(a) and 3(f)/1103(f) of the Ethics Act when she participated in actions of the West Mahanoy Township Board of Supervisors to renew insurance policies placed with her insurance company; and when she participated in actions to pay premiums to her company, Bolich and Burke, Inc. Pursuant to Section 3(a)/1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest: Section 1103. Restricte• activities. (a)- Conflict of interest.—No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The term "conflict of interest" is defined under Act 93 of 1998, Chapter 11 as follows: 65 Pa.C.S. §1102. The term "business with which he is associated" is defined under Act 93 of 1998, Chapter 11 as follows: Section 1102. Definitions. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. §1102. Section 1102. 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. The term 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. Kurtz, 98- 002 -C2 Page 40 Section 3(f)/1103(f) of the Ethics Act imposes restrictions as to contracting which apply under certain conditions, such as where a public official or a business with which the public official is associated contracts with the public official's governmental body, and the contract is valued at $500 or more. Section 1103(f) of Act 93 of 1998, Chapter 11 provides: Section 1103. Restricted activities. (f) Contract. —No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. §1103(f). Having noted the issues and applicable law, we shall now summarize the relevant facts. Respondent Regina Kurtz has served as a Supervisor for West Mahanoy Township ( "Township ") since January 3, 1996. In her private capacity, the Respondent is President and sole owner of Bolich and Burke, Inc. ( "Bolich and Burke "), which is an independent insurance company. Respondent is the sole insurance agent employed by Bolich and Burke. Bolich and Burke has handled the Township's insurance business since 1978. The Township purchases various types of insurance, including workers' compensation insurance; errors and omissions insurance for public officials; law enforcement liability insurance; property and casualty insurance for Township buildings and equipment; auto insurance; and coverage for fire companies. The Township insurance policies come due for renewal each year. The major insurance policies, including the errors and omissions insurance, law enforcement liability insurance, business auto insurance, and property and casualty insurance come due in August or September. Policies for the fire companies come due at different times. Since 1978, the Township has never put its insurance coverage out for competitive bids. Policies have been annually renewed by the Township Board. of Supervisors as the result of the payment of policy premiums as they become due. That is, the Township has simply paid the invoices received from Bolich and Burke. There Kurtz, 98 -002 -C2 Page 41 have been no public advertisements soliciting insurance bids. There have been no formal reviews of insurance bids at public meetings. In 1994, before announcing her candidacy for Township Supervisor, the Respondent requested an Advice of Counsel from the State Ethics Commission. Respondent's request letter, dated November 23, 1994, is in evidence as ID -13, page 1. The letter, which was printed on Bolich and Burke letterhead, indicated that Regina J. Kurtz was the President of the company. The only other person named on the letterhead was indicated as deceased. Respondent posed her question as follows: "My question is, would I violate any ethics by winning and serving as supervisor since I am also an insurance agent? I broker the account (West Mahanoy Township) through another agent." (Letter of November 23, 1994, ID -13, page 1). The Respondent did not ask any questions as to specific types of official conduct. Vincent J. Dopko, Chief Counsel of the State Ethics Commission, received and reviewed Respondent's letter. From his review, Chief Counsel Dopko was under the impression that there were two insurance agents involved in the Township's insurance account: the Respondent and some other insurance agent involved in the brokerage of the account. At this juncture, we would note that at the December 4, 1998 hearing as to these investigative proceedings, emphasis was placed upon whether the Respondent did in fact broker the Township's insurance account through another agent as she had indicated in her 1994 Advice request. Township Supervisor Theodore L. Buriak ( "Buriak "), who was Chairman of the Board of Supervisors from February or March of 1993 until January of 1998, and who also served as the appointed Treasurer from the time that the Respondent came on the Board until January, 1998, testified that for the period from January, 1996 through December, 1997, he was not aware of any insurance agent other than the Respondent that the Township went to on insurance coverage matters (Finding 331). Former Township Supervisor James J. Munley ( "Munley ") testified that he was not aware of any agent other than the Respondent being involved in the handling of the Township's insurances (see, Finding 34c). Respondent, on the other hand, testified that she did broker the Township's insurance through another agency, which she identified as "Woodring Roberts" of Bethlehem. Respondent testified in some detail as to Bolich and Burke's relationship with Woodring Roberts on the Township's accounts (see, Finding 36g). Respondent testified that the Township's policies were written through Woodring Roberts, but that Woodring Roberts did not deal directly with the Township. Respondent testified that it was she (the Respondent) who handled all of the transactions and problems with the Township (see, Findings 36g(4), (5)). Respondent further testified that the Township was billed by Bolich and Burke, and that the fees were split between the agencies (see, Findings 36g(6) —(8)). In any event, on December 9, 1994, long before these investigative proceedings were initiated, Chief Counsel Dopko issued Kurtz, Advice of Counsel No. 94 -643, which applied the Ethics Act based upon Respondent's representation of the facts. The Advice quoted Sections 3(a), 3(f), and 3(j) of Act 9 of 1989 and the related statutory definitions. The Advice stated that the Respondent's insurance agency is a business with which she is associated. The Advice stated that as a Township Supervisor, Respondent would have a conflict of interest as to matters involving her insurance agency, and specifically as to matters involving the Township's account. The Advice further noted that a public official may not use the authority of public office or confidential information received by being in the public position to the detriment of business competitors. The Advice stated that in each instance of a conflict of interest, the Respondent would be required to abstain from any participation and would also be required to fully satisfy the disclosure requirements of Section 3(j) of Act 9 of 1989. Kurtz, 98- 002 -C2 Page 42 The Advice did not address particular forms of official conduct since the Respondent had not raised any questions as to particular forms of conduct. With regard to Section 3(f) of Act 9 of 1989 the Advice stated that Section 3(f) would have to be observed as to contracts between the Respondent's business and the Township, where the value of the contract would be $500 or more. When the Respondent received the Advice of Counsel, she read it. Respondent testified that she did not really understand what was said in the Advice, but that she did not show the Advice to her son, who was an attorney at the time, nor did she, upon being elected to the Board, ask the Township Solicitor to review the Advice for her. The Respondent did not appeal the Advice or ask for supplemental /additional advice from the SEC. The Respondent acknowledged in her testimony that she did see the section of the Advice pertaining to the Section 3(f) requirements for an open and public process. After the Respondent took office on January 3, 1996, the Township continued to purchase insurance coverage from Bolich and Burke. There is unrefuted testimony that the Respondent participated in her capacity as a Township Supervisor in discussions of the Township Supervisors on general Township insurance matters, such as increasing coverage or obtaining coverage for certain equipment through Bolich and Burke (See, Finding 33k). After participating in such discussions as a Township Supervisor, the Respondent effectuated the changes to the Township's coverage in her capacity as the Township's insurance agent. During the Respondent's service- as a Township Supervisor, the Township insurance policies continued to be renewed on an annual basis through the payment of premiums. There continued to be no public advertisements seeking quotes for the Township insurance. As insurance policies would come due for renewal, or as additional coverage was needed, Bolich and Burke would invoice the Township for the premium(s) for such coverage. The invoices would indicate the policy numbers, the nature of the coverage, and in most instances, the next renewal date. The Treasurer would write a check to pay the bill, and the check would be signed by two Supervisors. Usually, insurance premiums were paid in full, but for some policies, payments were made in installments. After the payment was issued to Bolich and Burke, it was listed on the Treasurer's report and was then voted upon by the Board of Supervisors as part of the Treasurer's report, without any individual review. Thus, the only formal Board action taken to approve the renewal of insurance, the addition of insurance, or the payment of second installments on already- approved insurance with Bolich and Burke was the Board's vote to approve the Treasurer's report as a whole. After taking office, the Respondent participated in eleven separate votes to approve the payment of bills totaling $27,560.04 to Bolich and Burke. One such vote also operated to approve a payment (check number 5229) for an additional $465 to Bolich and Burke, for which the official records of the Township that are before the Commission do not include a bill (, Finding 43m(2)). Respondent abstained from three other votes taken approving bills totaling $10,983.50. The official actions taken by the Respondent as to Bolich and Burke payments are outlined in Findings 25 and 43. Findings 430, 43p, and 43q distinguish which actions had the effect of approving insurance coverage, which actions had the effect of approving payments on previously- approved policies, and the single instance where the applicable policy cannot be determined from the record. The Respondent does not deny that she participated in official actions to approve payments to Bolich and Burke. Indeed, Respondent testified that when she Kurtz. 98- 002 -C2 Page 43 received the Treasurer's reports, she reviewed them line -by -line to make sure all of the payments were valid, and that she considered the Bolich and Burke bills to be valid. Respondent noted that if she had abstained, the Bolich and Burke bills would still have been paid by a 2 -0 -1 vote. In the record before the Commission, there are two Township checks to Bolich and Burke which were signed by the Respondent in her official capacity as a Township Supervisor (see, Findings 26 and 43m, n). Respondent testified that the only reason she signed checks to Bolich and Burke was so that the insurance would not lapse. Respondent stated that if Buriak was not available to sign, she would sign the check to Bolich and Burke. However, it is noted that both of the checks at issue were signed after January, 1998, when Buriak was no longer the Board Chairman or Treasurer. Buriak testified that since that time, he has not been given the opportunity to sign Township checks except for one occasion when the Respondent was away. In any event, it is undisputed that the Respondent signed these two Township checks to Bolich and Burke in her official capacity. It is also undisputed that during the entire time that the Respondent has served on the Board of Supervisors, and indeed since 1978 when Bolich and Burke first began to handle the Township's insurance, the Township has never put its insurance coverage out for competitive bids. There have been no public advertisements seeking quotes for the Township insurance. While Buriak was Chairman of the Board, he normally directed and controlled which items were advertised and put out for bid. Buriak did not direct or require that the Township insurance policies be put out for bids. Buriak testified that he did not require an open and public bidding process for the Township insurance business because, based upon the Township Code, insurances were exempt from the bidding process, and even if there were bidding, the Township did not have to accept the low bid. In her testimony, the Respondent emphasized that she had no control over whether the Township put the insurance out for bid. Yet the Respondent acknowledged that she did control whether Bolich and Burke chose to do business with the Township. When asked, "[Y]ou did not choose to forego doing business with the Township as a private entity. Is that correct ?" Respondent replied, "No, I did not choose to forego. I mean, business is business." (Tr. at 274.) In the summer of 1997, as was always the case, the Township had not advertised for bids on the insurance that was coming due. Yet Buriak received quotes on the Township insurance from two other agencies, the Kilmer Insurance Agency ( "Kilmer ") and the Varano Insurance Agency, Inc. ( "Varano "). Buriak testified that before submitting their proposals, both Kilmer and Varano requested "loss runs." Loss runs are payment or loss histories that are used in preparing proposals to provide insurance. Loss runs are obtained from the current agent. Buriak testified that on at least two separate occasions prior to the August 20, 1997 meeting of the Supervisors, he asked the Respondent, as the current insurance agent, to provide the three -year loss runs for the Township's insurance. Buriak stated that when he asked for the Toss runs, he told the Respondent that there were others interested in bidding on the Township's business and that they needed the loss runs to prepare proposals. Buriak further testified that in the insurance industry, it is common knowledge that when Toss runs are requested, someone is interested in proposing a bid for services to the insured. Buriak testified that the Toss runs were not received, and that to the best of his knowledge, the Kilmer and Varano proposals were submitted without the use of loss runs. Kurtz, 98- 002 -C2 Page 44 The Kilmer and Varano proposals were for the insurances that would have come due in August. Specifically, the Kilmer proposal was for property insurance, general liability insurance, inland marine insurance, automobile insurance, employee benefits liability insurance, public official liability insurance, and law enforcement liability insurance. The total annual premium listed in the proposal was $9,859. The Varano proposal was for property insurance, general liability insurance, automobile insurance, inland marine insurance, public official insurance, and law enforcement insurance, with a quoted total annual premium of $9,809. As for Bolich. and Burke, we would first note that the premium history was as set forth in Finding 44. For 1996 -1997, the total premium charged for property insurance, general liability insurance, automobile insurance, law enforcement insurance, and public official insurance had been $13,498. Buriak testified that in the summer of 1997, there was a brochure from Bolich and Burke which indicated that the 1997 -1998 premium for the coverages which the Township had at the time would be the same or a little higher. Buriak testified that when the Kilmer and Varano proposals were received, he did not distribute them to the other Supervisors, but that they were placed on the top of his desk in the Supervisor's room in the Township building for everyone to review. Buriak testified that this was a normal Township practice. Munley testified that in the summer of 1997, the Township received quotes from Kilmer, Varano, and Bolich and Burke. Munley testified that the process in the Township was for insurance items to be placed on Buriak's desk because he was the Chairman. Munley testified that the Varano and Kilmer proposals were on the top of Buriak's desk for a couple of weeks prior to the August 20, 1997 meeting. Respondent testified that she never saw the Kilmer and Varano bids in 1997. Respondent acknowledged that she was told at some point that there were other bids, but stated that she did not recall whether she was told the amounts. Respondent stated that there was no formal proposal from Bolich and Burke prior to August 11, 1998 because Bolich and Burke had the policy the year before and was working on a renewal basis. Buriak and Munley both testified that they met with the Respondent and discussed the proposals at a "backroom" meeting of all three Supervisors following the August 20, 1997 public meeting. Buriak testified that at that very meeting, he (Buriak) handed the proposals to the Respondent, and that the Respondent reviewed the proposals and stated, "I think we can do better than that." Buriak stated that the Respondent said that they could change insurance companies and receive a better price for the Township. Buriak further testified that, in all the years he had served prior to 1997, the Respondent had never previously indicated any consideration of changing insurance carriers. Buriak testified that if on the evening of August 20, 1997 the Respondent had not offered to do better on insurance coverages, he would have recommended that the Kilmer Agency be given the Township's business. Munley testified that there was a gathering of the three Supervisors following the August 20, 1997 public meeting, at which the Respondent stated that she had seen the quotes and then said, "I know we can do better than that." Unlike Buriak, Munley did not recall any discussion at that gathering regarding changing insurance companies. Munley testified that if the Respondent had not indicated an ability to "do better than that," he would have asked for a discussion on the bids to see what was the difference in the coverage (Tr. at 176). Kurtz, 98- 002 -C2 Page 45 Respondent testified that she did not specifically recall discussing the proposals with Buriak and Munley after the August 20, 1997 public meeting. Buriak testified that, as a result of the August 20, 1997 "backroom" meeting, the Respondent provided a bid on behalf of Bolich and Burke of $8,101 to provide insurance coverages for 1997 -1998. Buriak testified that the decision to accept the Respondent's proposal on the insurance was made by all three of the Supervisors: Buriak, Munley, and the Respondent. However, Buriak acknowledged that in February, 1998 — approximately six months after the alleged incidents of August, 1997, and ten months prior to his testimony — he told Special Investigator Dan Bender of the State Ethics Commission that the Respondent did not play any role in reviewing insurance proposals and that her only involvement was participating in voting on Treasurer's reports which included payments to Bolich and Burke. Buriak characterized this prior statement as "inadvertent," and explained that past practice had been that the Respondent never reviewed insurance proposals, but in the particular situation when the Kilmer and Varano proposals were reviewed, she did have an active role in reviewing them. To support Buriak's testimony, . it was brought out at the hearing that the Bolich and Burke invoice for the insurances in question was dated August 11,. 1997, but the Township did not pay the invoice until September 23, 1997. Buriak testified that the amount of time between the invoice date and the payment (43 days) was unusual, and that normally while he was Treasurer, the Township endeavored to pay its bills as soon as they came due, especially on insurances. We note that based upon our review of the official Township records, in that same year, 1997, while Buriak was Chairman and Treasurer, two other insurance premiums were paid well beyond 43 days after their invoice dates, for no apparent reason (see, Finding 43r(1), (3)). It is clear that the August 11, 1997 invoice was paid six days after the September meeting. Munley testified that it was at that meeting that Buriak told Munley the Township had received a quote from Bolich and Burke which was lower than the Varano quote and for the same coverage. The Respondent testified that the Township had a policy at the premium of $8,101 by the August 11, 1997 due date, prior to the August 20, 1997 public meeting. Respondent testified that she has never allowed anyone's insurance to lapse. Respondent testified that no quote on behalf of Bolich and Burke for 1997 ever existed in the amount of anything but $8,101. Respondent testified that she never submitted a bid or bill from Bolich and Burke in 1997 for a premium of $13,000 or more. We note that the Bolich and Burke invoice in question bears the date of August 11, 1997, and is in the amount of $7,636 for insurance through National Casualty. There is no documented Bolich and Burke quote in the amount of $13,000 or more for 1997 -1998 in the record. Respondent testified that the decrease in the Township's premium for 1997 -1998 was due to her finding a new company with excellent rates. As for the fact that this change occurred at the same time two competing proposals were submitted to the Township, Respondent testified It just happened that way." (Tr. at 272.) The parties have agreed, through the admitted pleadings, that the Respondent realized a private pecuniary benefit of $3,239.18 from the sale of insurance coverage to West Mahanoy Township. This private pecuniary benefit has been calculated based upon the total commissions received by Kurtz since taking office on January 3, 1996 (see, Findings 30 and 31). Based upon our review of the official Township records, we note that one such commission in the amount of $78.75 received by the Respondent Kurtz, 98 -002 -C2 Page 46 for policy number 68332800 was for the 1996 Secretary Bond which was approved by the Township Board of Supervisors at the January 3, 1996 meeting without Respondent's participation. January 3, 1996 was the day Respondent first took office (see, Finding 7). Two other commissions totaling $88.00 received by the Respondent for policy #D31840715 were for a liability policy that was in effect before the Respondent took office, as to which there was no Board action after the Respondent took office (see, Findings 21, 30, 43s, t). Finally, we note that the record establishes a long history of strong differences between two factions on the Township Board of Supervisors, with Buriak and Munley being on one side, and the Respondent and the current Chairman of the Board, William O'Donnell, being on the other. Having highlighted the facts and issues, we shall preliminarily address the legal arguments which have been raised by the Respondent. Respondent argues: 1) that Respondent lacked knowledge or intent as to any violations of the Ethics Act; 2) that the Advice of Counsel issued to Respondent did not address specific forms of official conduct; 3) that prior to Respondent's voting to approve Treasurer's reports, the insurance contracts and payment schedules had already been approved by the other two Supervisors; and 4) that Respondent's votes to approve the Treasurer's reports were not the deciding votes. We find all of Respondent's legal arguments to be without merit. First, intent is not a requisite element for a violation of the Ethics Act. See, e.g., Yocabet v. State Ethics Commission, 531 A.2d 539 (Pa. Cmmw. Ct. 1987) (holding that the Township Supervisor in that case violated Section 3(a) of the Ethics Act even if. he did not intend to do so). As for Respondent's alleged lack of knowledge, the Respondent is presumed to know the law and in this case she was specifically apprised of it by Kugz, Advice of Counsel No. 94 -643. As for Respondent's argument that the Advice of Counsel did not address specific forms of official conduct, we note that the Respondent did not ask about specific forms of official conduct. Chief Counsel was not required to frame the Respondent's questions for her or to answer questions that she as the requestor did not ask. We find the Advice to be a thorough and fully adequate response to the Respondent's request letter. As for Respondent's third argument, which posits the theory that prior to Respondent's voting to approve Treasurer's reports, the insurance contracts and payment schedules had already been approved by Supervisors Buriak and Munley, such theory fails as a matter of law. Pursuant to the Second Class Township Code, as discussed more fully below, Township business may only be transacted by a vote of the Board of Township Supervisors at a public meeting. 53 P.S. §65603. We find that the votes to approve the Treasurer's reports had such effect. The fourth legal argument raised by the Respondent, that Respondent's votes to approve Treasurer's reports that included payments to Bolich and Burke were not deciding votes, is irrelevant as a matter of law. Respondent's votes need not have been deciding votes to violate the Ethics Act. As was stated by the Commonwealth Court of Pennsylvania in Snyder v. State Ethics Commission, 686 A.2d 843 (Pa. Commw. Ct. 1996), alloc. den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997): Kurtz, 98- 002 -C2 Page 47 We are likewise unconvinced by the fact that Snyder's vote was never controlling or necessary for a quorum. Snyder violated the Ethics Law by discussing and voting on issues in which he had a private pecuniary interest. not by affecting the outcome of those votes... . as a Supervisor, he should not have considered and voted on issues involving his personal business dealings. kt„, 686 A.2d at 849 (Emphasis added). Having reviewed and dispelled Respondent's legal arguments, we must now determine whether the actions of Respondent Regina Kurtz violated Sections 3(a)/1103(a) and 3(f)/1103(f) of the Ethics Act. Violation(s) may only be found based upon clear and convincing evidence. 65 Pa.C.S. §1108(g). Clear and convincing evidence is "testimony that is so 'clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of; the precise facts in issue.'" In re Charles E.D.M., 550 Pa. 595, 601, 708 A.2d 88, (Pa. 1998)(Citation omitted). In this case, there is clear and convincing evidence of numerous violations of the Ethics Act by the Respondent. We find that the Respondent violated Section 3(a)/1103(a) of the Ethics Act by participating in her capacity as a Township Supervisor in discussions of the Township Supervisors on general Township insurance matters, including increasing insurance coverage and obtaining insurance coverage for certain equipment through Bolich and Burke. This violation is established by the unrefuted testimony of Buriak (see, Finding 33k). Since the Respondent and /or her business stood to gain financially from such proposed increases in the Township's coverage, the Respondent had a conflict of interest and her duty was to abstain fully, not only from the votes as discussed below, but also from these discussions. (See, Juliante, Order No. 809). The Respondent did not abstain, and the subsequent increases in coverage resulted in a private pecuniary benefit to the Respondent and /or Bolich and Burke. Each element of a Section 3(a)/1103(a) violation has been established. We shall next consider Respondent's official actions on the Township Treasurer's reports which included payments to Bolich and Burke. Pursuant to the Second Class Township Code, "An affirmative vote of a majority of the entire board of supervisors at a public meeting is necessary in order to transact any business." 53 P.S. §65603. In West Mahanoy Township, the votes by which insurance business was transacted were the votes to approve the Township Treasurer's reports that included payments to Bolich and Burke. Thus, for purposes of applying the Ethics Act, those votes were key because they had the effect of authorizing insurance contracts as well as payments on insurance contracts for the Township. Factually, it is clear from the record that the Respondent made or seconded motions and voted to approve such Treasurer's reports as set forth in Findings 25 and 43. Such official actions were uses of the authority of Respondent's office as a Township Supervisor. ,e Snyder, Order No. 979 -2, aff'd•, Snyder v. State Ethics Commission, 686 A.2d 843 (Pa. Commw. Ct. 1996), alloc. del., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997); Haaf, Order No. 914; Garner, Opinion No. 93 -004. Respondent used the authority of her office as a Township Supervisor for the private pecuniary benefit of the Respondent and /or Respondent's insurance agency, Bolich and Burke, which private pecuniary benefit consisted of the commissions received from the insurance (see, Findings 30 -31). Kurtz, 98 -002 -C2 Page 48 Those of Respondent's actions which are delineated in Finding 43o had the effect of actually approving insurance coverage for the Township through Bolich and Burke. Thus, we hold that the Respondent violated Section 3(a)/1103(a) of the Ethics Act when on November 20, 1996, December 18, 1996, January 6, 1997, March 17, 1997, April 16, 1997, October 15, 1997, November 19, 1997, December 17, 1997, and March 17, 1998, Respondent made or seconded motions and voted to approve Township Treasurer's reports which included payments to Bolich and Burke, Inc., a business with which the Respondent was associated, which votes had the effect of approving insurance coverage for the Township through Bolich and Burke. A public official's use of authority of office to effectuate a contract between his governmental body and himself or his own business has been held to violate Section 3(a)/1103(a). See, e.g., Spotts, Order No. 1050. Those of Respondent's actions which are delineated in Finding 43p had the effect of approving second installments on previously - approved insurance policies through Bolich and Burke. We hold that Section 3(a)/1103(a) of the Ethics Act was technically violated by the Respondent when, on April 17, 1996, April 16, 1997, and April 21, 1998, Respondent made or seconded motions and voted to approve Township Treasurer's reports which included payments to Bolich and Burke, Inc., a business with which the. Respondent was associated, which votes had the effect of approving second installments on previously- approved insurance policies. See, LaVertue, Order No. 1002; Perino, Order No. 980. As for Finding 43q, the record establishes that on March 17, 1998, the Respondent made the motion and voted to approve a Treasurer's report which included check number 5229 in the amount of $465 to Bolich and Burke. The record before us does not reflect the applicable policy. Therefore, we find a technical violation of Section 3(a)/1103(a) as to that particular payment. Section 3(a)/1103(a) of the Ethics Act was technically violated by the Respondent when, in her official capacity as a Township Supervisor, she signed checks numbers 5222 and 5236 payable to Bolich and Burke. A technical violation is appropriate for such conduct under the facts and circumstances of this case. See, e.g., Leniq, Order No. 989; perino, Order No. 980; Oesterling, Order No. 941 -2. We now turn our attention to the incidents in and around August, 1997. In applying the allegation of the Investigative Complaint to the evidence, the issue before us is whether, on August 20, 1997, at an alleged "backroom" meeting among the three Township Supervisors, the Respondent used the authority of her office as a Township Supervisor to participate and intercede on behalf of her own business, Bolich and Burke, thereby securing an opportunity to keep the Township's insurance business by offering a lower rate than her competitors, Kilmer and Varano, had offered. In weighing the evidence in the record before us, we find a lack of clear and convincing evidence to support such a violation. There is no question that the circumstances appear suspicious. There was a steady increase in the Township's premiums with Bolich and Burke until 1997, when competing proposals were submitted and the Bolich and Burke premiums suddenly dropped by more than $5,300. However, it was established that prior to August, 1997, when Buriak requested the Township's "loss runs" from the Respondent, he specifically told the Respondent that there were others who were interested in bidding on the Township's insurances. This occurred while the Respondent was acting in her private capacity as an insurance agent. Given that prior to August, 1997, the Respondent knew, through legitimate means, that she had competition for the Township's insurances that were coming due, the circumstantial evidence surrounding the cheaper rates that were suddenly offered by Bolich and Burke does not constitute Kurtz, 98- 002 -C2 Page 49 clear and convincing evidence of Respondent's alleged participation at the alleged August 20, 1997 "backroom" meeting. As for direct evidence, there are discrepancies in the testimony that was proffered against the Respondent. For example, although Buriak and Munley both testified that such a backroom meeting of all three Supervisors took place on August 20, 1997 following the public meeting, there were some inconsistencies in their testimony as to what transpired. Buriak testified that he handed the Kilmer and Varano proposals to the Respondent and she actually looked at the proposals before stating, 1 think we can do better than that." Munley testified that the Respondent stated that she had seen the proposals. Munley testified that the Respondent stated, "I know we can do better than that," but unlike Buriak, Munley did not recall any discussion at that gathering regarding changing insurance companies. But the greatest cause for concem is Buriak's prior inconsistent statement to an SEC Investigator. In February, 1998, Buriak told State Ethics Commission Special Investigator Dan Bender that the Respondent did not have a role in reviewing Township insurance proposals and that her only involvement was participating in voting on Treasurer's reports, which included payments to Bolich and Burke (see, Finding 33t). Buriak's attempt at the hearing to explain away his prior inconsistent statement as "inadvertent" fails to reassure us. Nor is Buriak's testimony supported by an averred 43 -day "delay" in payment of the August 11, 1997 invoice (see, Finding 33u(3)). Our review of the official Township records reflects that during that same year, 1997, while Buriak was Chair and Treasurer, there were two other insurance premiums that were paid well beyond 43 days after their invoice dates, for no apparent reason (see, Finding 43r(1), (3)). Furthermore, the fact that the invoice in question was paid six days after the September meeting is not necessarily significant. Finally, one cannot help but discern from the record that there is a long history of strong differences between the Respondent and Buriak and Munley. Based upon all of the above, we find a lack of clear and convincing evidence to support a violation with regard to the alleged participation of the Respondent in an alleged August 20, 1997 backroom meeting of the Township Supervisors as to competitive proposals for the Township's insurance business. We shall now apply Section 3(f)/1103(f) of the Ethics Act to the evidence before us. Having reviewed the insurance transactions in great detail as set forth in Finding 43, we find that after taking office on January 3, 1996, Respondent violated Section 3(f)/1103(f) of the Ethics Act as to repeated contracting valued at $500 or more between Bolich and Burke and the Township. No open and public process was ever observed as to these contracts. See, Spotts, Order No. 1050; Brennan, Order No. 1047; Beatty, Order No. 1034. We recognize that as the minority member on the Board of Supervisors, the Respondent was not in a position to require an open and public process as to the insurance contracts. However, the Respondent was in control of whether Bolich and Burke did business with the Township. When asked, "[Y]ou did not choose to forego doing business with the Township as a private entity. Is that correct ?" Respondent replied, "No, I did not choose to forego. I mean, business is business." (Tr. at 274). Obviously, the Respondent's first loyalty was to her private business interests. This subordination of the public's interests to Respondent's private business interests was at odds with the stated purpose of the Ethics Act. See, Crisci, Opinion No. 89 -013. Kurtz, 98- 002 -C2 Page 50 In this case, the Investigative Division is seeking an Order for restitution plus interest and a treble penalty. See, Closing Statement of the Investigative Division, at 29 -32. In exercising our discretion, we shall order restitution. Section 7(13)/1107(13) of the Ethics Act empowers this Commission to impose restitution in those instances where a public official /public employee has obtained a financial gain in violation of the Ethics Act. In this case, a financial gain has been obtained in violation of the Ethics Act, and restitution is clearly warranted. Through the admitted Pleadings, the parties have agreed that the Respondent realized a private pecuniary benefit of $3,239.18 from the sale of insurance coverage to West Mahanoy Township. This private pecuniary benefit has been calculated based upon the total commissions received by Kurtz since taking office on January 3, 1996 (see, Findings 30 and 31). Based upon our review of the official Township records, we note that one such commission in the amount of $78.75 received by the Respondent for policy number 68332800 was for the 1996 Secretary Bond which was approved by the Township Board of Supervisors at the January 3, 1996 meeting without Respondent's participation. January 3, 1996 was the day Respondent first took office (see, Finding 71. Two other commissions totaling $88.00 received by the Respondent for policy #D31840715 were for a liability policy that was in effect before the Respondent took office, as to which there was no Board action after the Respondent took office (see, Findings 21, 30, 43s, t). In fairness to the Respondent, we determine that the appropriate amount of restitution is $3,072.43, calculated by subtracting the above three commissions from the agreed -upon private pecuniary benefit. Respondent Regina Kurtz is directed to pay restitution in the amount of $3,072.43 to West Mahanoy Township through this Commission within 30 days of the mailing date of this Order. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. Non - compliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Regina Kurtz ("Kurtz"), as a Supervisor for West Mahanoy Township ( "Township "), is a public official subject to the provisions of Act 9 of 1989/Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 sea. (the "Ethics Act "). 2. Kurtz violated Section 3(a)/1103(a) of the Ethics Act by participating in her capacity as a Township Supervisor in discussions of the Township Supervisors on general Township insurance matters including increasing insurance coverage and obtaining insurance coverage for certain equipment through Bolich and Burke, Inc., a business with which Kurtz is associated. 3. Kurtz violated Section 3(a)/1103(a) of the Ethics Act when on November 20, 1996, December 18, 1996, January 6, 1997, March 17, 1997, April 16, 1997, October 15, 1997, November 19, 1997, December 17, 1997, and March 17, 1998 she made or seconded motions and voted to approve Township Treasurer's reports which included payments to Bolich and Burke, Inc., a business with which she is associated, which votes had the effect of approving insurance coverage for the Township through Bolich and Burke, Inc. 4. Section 3(a)/1103(a) of the Ethics Act was technically violated by Kurtz when on April 17, 1996, April 16, 1997, and April 21, 1998, she made or seconded motions and voted to approve Township Treasurer's reports which included payments to Bolich and Burke, Inc., a business with which she is associated, Kurtz, 98- 002 -C2 Page 51 which votes had the effect of approving second installments on previously - approved insurance policies. 5. Section 3(a)/1103(a) of the Ethics Act was technically violated by Kurtz when on March 17, 1998, she made the motion and voted to approve a Treasurer's report which included Township check number 5229 in the amount of $465 to Bolich and Burke, Inc., a business with which she is associated. 6. Section 3(a)/1103(a) of the Ethics Act was technically violated by Kurtz when, in her official capacity as a Township Supervisor, she signed Township checks numbers 5222 and 5236 payable to Bolich and Burke, Inc., a business with which she is associated. 7. Based upon a lack of clear and convincing evidence, Kurtz did not violate Section 3(a)/1 103(a) of the Ethics Act with regard to her alleged participation in an alleged August 20, 1997 backroom meeting among the three Township Supervisors as to competitive proposals for the Township's insurance business. 8. Kurtz violated Section 3(f)/1103(f) of the Ethics Act as to repeated contracting valued at $500 or more between the Township and Bolich and Burke, Inc., a business with which she is associated, without an open and public process. In Re: Regina Kurtz File Docket: 98- 002 -C2 • Date Decided: 2/26/99 Date Mailed: 3/10/99 ORDER NO. 1116 1. Regina Kurtz ( "Kurtz "), as a Supervisor for West Mahanoy Township ( "Township "), violated Section 3(a)/1103(a) of Act 9 of 1989 /Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 saa. (the "Ethics Act ") by participating in discussions of the Township Supervisors on general Township insurance matters including increasing insurance coverage and obtaining insurance coverage for certain equipment through Bolich and Burke, Inc., a business with which Kurtz is associated. 2. Kurtz violated Section 3(a)/1103(a) of the Ethics Act when on November 20, 1996, December 18, 1996, January 6, 1997, March 17, 1997, April 16, 1997, October 15, 1997, November 19, 1997, December 17, 1997, and March 17, 1998 she made or seconded motions and voted to approve Township Treasurer's reports which included payments to Bolich and. Burke, Inc., a business with which she is associated, which votes had the. effect of approving insurance coverage for the Township through Bolich and Burke, Inc. 3. Section 3(a)/1103(a) of the Ethics Act was technically violated by Kurtz when on April 17, 1996, April 16, 1997, and April 21 1998, she made or seconded motions and voted to approve Township Treasurer's reports which included payments to Bolich and Burke, Inc., a business with which she is associated, which votes had the effect of approving second installments on previously - approved insurance policies. 4. Section 3(a)/1103(a) of the Ethics Act was technically violated by Kurtz when on March 17, 1998, she made the motion and voted to approve a Treasurer's report which included Township check number 5229 in the amount of $465 to Bolich and Burke, Inc., a business with which she is associated. 5. Section 3(a)/1103(a) of the Ethics Act was technically violated by Kurtz when, in her official capacity as a Township Supervisor, she signed Township checks numbers 5222 and 5236 payable to Bolich and Burke, Inc., a business with which she is associated. 6. Based upon a lack of clear and convincing evidence, Kurtz did not violate Section 3(a)/1103(a) of the Ethics Act with regard to her alleged participation in an alleged August 20, 1997 backroom meeting among the three Township Supervisors as to competitive proposals for the Township's insurance business. 7. Kurtz violated Section 3(f)/1103(f) of the Ethics Act as to repeated contracting valued at $500 or more between the Township and Bolich and Burke, Inc., a business with which Respondent is associated, without an open and public process. 8. Kurtz is ordered to pay restitution in the amount of $3,072.43 to West Mahanoy Township through this Commission within 30 days of the mailing date of this Order. a. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, DANEEN E. REESE, CHAIR Commissioner Frank M. Brown did not participate in this decision.