HomeMy WebLinkAbout1133 StephensIn Re: Donald Stephens
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Julius Uehlein
Louis W. Fryman
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
98- 048 -C2
Order No. 1133
8/30/99
9/7/99
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 allegations. Upon
completion of its investigation, the Investigative Division issued and served upon
Respondent a Findings Report identified as an "Investigative Complaint." An Answer
was not filed and a hearing was deemed waived. 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 gtc ., 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.
Stephens, 98- 048 -C2
Page 2
I. ALLEGATION:
Donald Stephens, a public official /public employee, in his capacity as a member
of the Fayette County Conservation District (FCCD) Board of Directors violated
Sections 3(a) and 4(a) of the State Ethics Act (Act 9 of 1989) when he used the
authority of his office for a private pecuniary benefit by making purchases from the
Federal Surplus Property Program administered by the Pennsylvania Department of
General Services for his personal use and when he used FCCD funds to pay for said
purchase; and when he failed to file Statements of Financial interests for the 1994,
1995, 1996 and 1997 calendar years; and by submitting and approving expenses for
his spouse to attend conferences.
II. FINDINGS:
1. The Investigative. Division of the State Ethics Commission received information
alleging that Donald Stephens violated provisions of the State Ethics Act (Act
93 of 1998).
2. Upon review of the information the Investigative Division initiated a preliminary
inquiry on June 12, 1998.
3. The preliminary inquiry was completed within sixty days.
4. On August 6, 1998, a letter was forwarded to Donald Stephens, by the
Executive Director of the State Ethics Commission informing him that a
complaint against him was received by the Investigative Division and that a full
investigation was being commenced.
a.
Said letter was forwarded by certified mail, no. P 487 031 845
b." The domestic return receipt bore the signature of Donald Stephens, with
a delivery date of August 8, 1998.
5. On April 20, 1998, a letter was forwarded to Donald Stephens, by the
Executive Director of the State Ethics Commission informing him that the notice
of investigation dated August 6, 1998, was being amended to include
additional allegations.
a. Said letter was forwarded by certified mail, no. Z 377 194 610.
b. The domestic return receipt bore the signature of Donald Stephens, with
a delivery date of April 22, 1999.
6. On November 23, 1998, the Executive Director of the State Ethics Commission
filed an application for a ninety day extension of time to complete the
Investigation.
7. The Commission issued an order on December 15, 1998, granting the ninety
day extension.
8. On February 1, 1999, the Executive Director of the State Ethics Commission
filed an application for a ninety day extension of time to complete the
Investigation.
Stephens, 98- 048 -C2
Page 3 -
9. The Commission issued an order on February 26, 1999, granting the ninety day
extension.
10. Periodic notice letters were forwarded to Donald Stephens in accordance with
the provisions of the Ethics Law advising him of the general status of the
investigation.
1 The Investigative Complaint was mailed to the Respondent on July 27, 1999.
12. Donald Stephens served as a member of the Fayette County Conservation
District board (FCCD) from approximately 1957 through December 1997.
a. Stephens is a charter member of the board.
13. Stephens served as chairman of the FCCD board from 1986 through 1997.
14. The FCCD consists of seven members appointed by the Fayette County
Commissioners.
15. Conservation districts were created pursuant to Conservation District Law
originally passed on May 15, 1945, and subsequently amended.
16. Section 15 of the Conservation District Law authorizes counties to create
conservation districts to address concerns of water and soil conservation and
related resources.
a. The counties and state provide funding for conservation districts.
17. Section 9 of the Conservation District Law provides the following duties and
responsibilities of conservation districts:
- Conduct survey and research;
- Employ necessary personnel;
- Carry out preventative and control measures;
- Enter into cooperative agreements;
- Obtain options and acquire property;
- Make available equipment, seeds, and seedlings;
- Contract, improve structures;
- Assist and advise in land development;
- Conduct educational programs;
- Accept contributions from any source with consent;
- Sponsor projects under the Watershed Protection and Flood Prevention Act;
- Establish a program of assistance to environmental advisory councils.
18. The FCCD has participated in the Federal Surplus Property Program administered
by the General Services Administration under the Federal Property and
Administrative Services Act of 1949, . as amended.
19. The Pennsylvania Department of General Services, Bureau of Supplies and
Surplus Operations, (DGS), is the state agency designated to distribute surplus
federal property and [to] ensure compliance with federal regulations within the
state.
20. Eligibility to participate in the program is determined as follows: "non - profit, tax-
exempt organizations that serve the public good in the areas of health or
Stephens, 98- 048-C2
Page 4
education, and to government agencies, political subdivisions, and organizations
funded by and under the direction of political subdivisions."
21. The Federal Surplus Property Program is not open to the general public.
a. Items purchased through this program are not intended for the personal
use of any individual.
22 The Fayette County Conservation District (FCCD) participated in the Federal
Surplus Property Program since at least 1986.
a. Applications for Eligibility to the Commonwealth of Pennsylvania,
Department of General Services Surplus Property Division, were made on
November 13, 1986, and August 21, 1996.
23. Only those individuals registered with the Department of General Services
Federal Surplus Operations were permitted to sign for property.
24. The two representatives of FCCD who were authorized to sign for purchases
from the Federal Surplus Property Program are Donald Stephens and David
Shepler.
a. A Representative Certification form was submitted on August 21, 1995,
by Board Chairman Donald Stephens.
b. A Representative Certification form was previously submitted on
November 13, 1986, by Board Chairman Donald Stephens.
25. The Representative Certification provides that Donald Stephens is an
"authorized agent of this institution to select, receive and sign for surplus
federal property deemed useable and necessary in the conduct of this
institution's approved program. This authorized signature binds this institution
to all terms and conditions of the donee certification."
26. Stephens and Shepler were the only board members who made purchases from
the Federal Surplus Property Program Harrisburg Distribution site.
a. Other board members were unaware of the FCCD's participation in the
Federal Surplus Property Program.
b. No FCCD employees ever made purchases from the program.
27. Purchases made from the surplus property program are recorded on DGS
Distribution Documents.
a. The form contains the following information: FSC number; serial number;
description; acquisition cost by unit and total; total received; and service
charge by unit and total.
b. The donee's name, address, and donee number are included.
28. The Distribution Document includes the following requirements for purchasing
from the program therein:
Stephens, 98- 048 -C2
Page 5 -
a. All items of properties shall be placed in use for the purpose for which
acquired within one year of receipt and shall be continued in use for such
purposes for one year from the date that the property was placed in use.
b. In the event the property is not so placed in use, or contained in use, the
donee shall immediately notify the state agency and, at the donee's
expense, return such property to the state agency, or otherwise make the
property available for transfer or other disposal by the state agency,
provided the property is still useable as determined by the state agency.
29. As a representative of the Fayette County Conservation District, Donald
Stephens signed for six receipts for items obtained from the Federal Surplus
Property Program between January 1994 and July 1997.
a. 1995:
Item Cost Receipt Date Total Fed /Mkt. Basket
Number Cost (= 23.3%)
Tarp 56.25 54500 03/21/95 292.40 $791.00/184.30
Nails(2) 4.00
Nails 10.00
Picks(4) 20.00
Screws(2) 6.00
Screws 4.00
Cable(2) 20.00
Moped 200.00
Tape(5) 3.75
Overshoe 2.00
Boot 12.00
Innertube 25.00
Steel 66.00 54614 03/21/95 128.00 $4,344.00/1,012.15
plate (22)
Alum. 80.00
sheet (4)
Detergent 5.00
Glass 7.00
cleaner
Steel wood 2.00
Total 1995: 420.40 $5,135.00/1,196.45
b. 1996:
Item Lost Receipt Data Total Fed /Mkt. Basket
Number Cost (= 23.3 %)
Pot(2) 36.00 565424 12/11/96 74.80 $557.00/129.78
Phone(1) .05
Heating 1.50
element (2)
Pulley 6.00
Chain link(2) 9.00
Hinge(2) 15.00
Knife(1) 2.00
Nails 15.00
Latch thumb 1.50
Tape(3) .45
Stephens, 98- 048 -C2
Page 6
Wrench(2) 4.00
Battery 3.00
Sander(2) 25.00 565481 12/11/96 203.67 $ 1,384.00/322.47
Tape .37
Mask(5) 5.00
Lamp(6) 2.22
Fence 222.00
post(11 1)
Total 1996: 278.47 $1,941.00/452.25
c. 1997:
Item Cost Receipt Date T to Fed /Mkt. Basket
Number Cost 1=23.3%)
Combat 36.00 568423 09/17/97 36.00 $150.00/34.95
boots(3)
GRACO paint 100.00 568511 09/24/97 259.80 1,722.00/401.23
pump
Toolbox 20.00
Tires(2) 22.50
Tube(6) 15.00
Hose 3.00
clamp(4)
Ladder 37.50
Disk 3.75
Sandpaper 2.50
Wire 6.00
Nails(2) 30.00
Barbwire(10) 75.00
Polish 2.50
Bedspread(2) 7.00
Total 1997: 295.80 $1,872.00/436.18
Total 1994 through 1997: $8,948.00/2,084.88
30. The market basket cost is computed by the federal government as the fair
market value of the goods being sold through the surplus program.
31. The items obtained by Stephens were not for the use of the FCCD and were not
used for FCCD purposes.
a. Stephens obtained these items by virtue of his public position for his
personal use.
b. Stephens would not have been able to purchase these items if he were
not a FCCD member.
c. Stephens purchased items with a market basket value totaling
$2,084.88.
32. DGS, Bureau of Supplies and Surplus Operations, Surplus Property Division,
submitted invoices to the Fayette County Conservation District for payment for
Stephens, 98- 048_C2
Page 7
items received from the program, including the items purchased by Donald
Stephens.
33. The DGS invoices for the surplus property were paid from the FCCD's Tree
Account.
a. The Tree Account, held at Fayette Bank, Account #43317679, was
funded by the proceeds of the annual tree sale held by the FCCD.
b. Proceeds were used to pay for seedlings for the following year's sale;
some travel expenses for board members; Federal Surplus Property
purchases; and dinner at the monthly board meetings for the directors
and some attendees.
c. Signature authority on the Tree Account included FCCD Manager Thelma
Adams and Board Chairman Donald Stephens.
34. FCCD Tree Account checks issued to the Pennsylvania Department of General
Services as payment for items obtained by Donald Stephens from the Federal
Surplus Property Program were signed by Stephens in his capacity as board
chairman.
Check # Date Amount
204 05/30/95 469.68
227 01/03/97 278.47
105 10/24/97 295.80
Invoice
Reference #
54500,54614
565424,565481
568423,567511
Date
03/21/95
12/11 /96
12/11/96
Authorized
Signatures
Stephens, Adams
Stephens, Adams
Stephens, Shepler
Total 1,043.95
35. Check #227 was cosigned by Thelma Adams at the direction of Stephens after
she had retired as district manager.
a. Stephens directed Adams to sign the check on the pretext that David
Shepler wanted to buy items at the FSPP.
b. Adams was still in possession of the Tree Account records at her home
at the time.
c. Adams was still one of two signature authorities on the account.
38. Check #227 was used to pay for items purchased by Stephens.
a. Shepler did not make a purchase that was paid for with Check #227.
37. Donald Stephens, chairman of the FCCD board, initiated a change in the
signature authorities on the Tree Account after Thelma Adams retired from the
FCCD.
a. Stephens retained signature authority on the account.
b. David Shepler was added as a signature authority to replace Thelma
Adams.
c. No board action was taken to authorize the change.
Stephens, 98- 048 -C2
Page 8
38. Check #105 was issued from the Tree Account for FSP purchases made by
Stephens in October 1997.
a. The check was signed by Stephens and David Shepler.
39. Expenditures from the Tree Account were not voted on by the FCCD Board of
Directors.
a. Payments from the Tree Account were not reported to the Board of
Directors.
40. Individuals with knowledge of Tree Account expenditures included: Chairman
Donald Stephens; Vice - Chairman David Shepler; District Manager Thelma
Adams; and Treasurer /Board Member Thomas Adams (husband of Thelma
Adams).
41. Stephens reimbursed the Tree Account for some purchases he made from the
Federal Surplus Property Program with cash after giving Thelma Adams a check
drawn on an account with insufficient funds.
a. Thelma Adams would not issue a check from the Tree Account for
Stephens and Shepler's purchases from the FSPP until they had
reimbursed the account for the amount of their respective purchases.
b. No records of receipts exist to confirm amounts paid by Stephens.
42. FCCD Tree Bank Account records confirm no cash deposits or payments made
by Stephens as reimbursement for invoice nos. 565424, 565481, 568423 and
568511. (See Finding No. 34).
a. Purchases identified on the above listed invoices were made after Adams
retired from FCCD.
b. Purchases identified on the above listed invoices were paid with FCCD
Tree Account Check #'s 227 and 105.
43. The FCCD retained William T. Grimm & Associates, P.C., to conduct an audit
of their books for the calendar year ending 12/31/97.
a. An Independent Auditor's Report prepared by William T. Grimm &
Associates was supplied to the FCCD Board of Directors on 12/5/98.
b. Included in the report was a Schedule of Questioned Costs and Findings,
which address the unreimbursed purchase of federal surplus property by
Donald Stephens.
c. Specifically referenced were Invoices #565481,565424, 568511, and
568423, signed by Donald R. Stephens.
d. The above stated invoices were paid with Check. #227 ($278.47) and
Check #105 ($295.80) from the Laurel Bank Tree Account, totaling
$574.27.
e. The items of federal surplus property were not used by the FCCD.
Stephens, 98- 048_C2
Page 9
44. In 1998, an inventory conducted by DGS of the federal surplus property
acquired by the FCCD disclosed the following:
a. None of the property still under restriction was located at the FCCD;
b. The property was being utilized or had been utilized by two board
members (Stephens and Shepler) for their personal use.
45. The inventory was conducted by DGS following receipt of information that
purchases from the surplus program were made for personal use.
a. The inventory took into account merchandise from invoices relating to
purchases made within one year of notification of possible program
violations.
b. The inventory did not review purchases made prior to 1997.
46. On July 20, 1998, the director of the Bureau of Supplies and Surplus
Operations, Department of General Services, advised the FCCD Board of
Directors by letter that the district was immediately suspended from
participation in the Federal Surplus Property Program.
a. Specific conditions cited were Part VI Terms and Conditions on Donable
Property and Subchapter H- Utilization and Disposal, Property Distributed
to Donees.
47. Stephens admitted to investigators for the Office of Inspector General that he
made purchases for his personal use from the surplus program.
a. He acknowledged that his signature appears on invoice nos. 54500,
54614, 565424, 565481, 568423 and 568511.
Stephens also admitted to signing FCCD Tree Account checks payable to
the surplus programs.
48. Stephens received a private pecuniary benefit when he purchased items from
federal surplus in his position as a FCCD board member:
b.
a. Market Basket Cost
(Finding No. 29)
Reimbursed (Finding No. 34)
Total:
b. Unreimbursed Purchases:
(See Finding No. 42)
Total:
$2,084.88
- 469.68
$1,615.20
$ 574.27
$ 2,189.47
The following findings related to the allegation that FCCD board members and the
district manager have attended various conferences and conventions relating to the
activities of the FCCD.
49. In 1996, Stephens attended the National Association of Conservation Districts'
(NACD) Annual Conference held in Las Vegas, Nevada, February 4 -7, 1997.
Stephens, 98- 048
Page 10
50. Travel arrangements, including airline reservations and hotel accommodations,
were made through Holiday Travel International, 184 Finley Road, Belle Vernon,
PA 15012, by Donald Stephens on December 16, 1995.
a. The arrangements were made for four FCCD board members, the district
manager, and their spouses.
b. District Manager Thelma Adams accompanied her husband, Board
Member Thomas Adams.
c. The three other board members attending the conference and their wives
were: David and Laura Mae Shepler; Donald and Carlotta Stephens; and
Robert and Evelyn Constantine.
51. FCCD General Fund Check #3718, dated December 14, 1995, in the amount
of $3,648.00, was issued to Holiday Travel International in payment of the
travel arrangements.
a. Hotel accommodations for four couples were booked at the Riviera Hotel
and Casino for four nights, including February 4 -7, 1996.
b. Rates were $68.50 per night, for a total hotel charge of $1,096.00.
1. Hotel rates did not include an extra charge for double occupancy.
2. Lodging for 2/3, 2/8, and 2/9 was not part of the arrangements
made by Holiday Travel.
c. Airfare for eight persons totaled $2,552.00, or $319.00 each person.
52. The treasurer's report attached to the January 15, 1996, FCCD board meeting
minutes included the payment to Holiday Travel for the NACD meeting in the
amount of $3,648.00.
53. A Motion to approve the minutes of a treasurer's report as mailed to directors
was made by Adams and seconded by Shepler.
a. No roll call vote was recorded.
b. Members present included: Stephens, Shepler, Adams, Butler, and
Moyer. Absent were Constantine and Vicites.
54. Board members attending the NACD annual conference in 1996 were provided
with advances to cover meals and miscellaneous expenses.
a. Advances were issued from the FCCD Tree Account.
55. The advance check issued to Donald Stephens was in the amount of
$2,000.000.
a. Check #213 dated 2/1/96 was issued to Donald Stephens in the amount
of $2,000.00.
56. Advance checks were also issued to board members Shepler, Adams, and
Constantine.
StephenA, 98- 048
Page 11
a. Adams received an advance in the amount of $2,000.00.
b. Shepler and Constantine received an advance in the amount of
$1,200.00.
57. All advance checks issued to the board members attending the 1996 annual
NACD conference in Las Vegas, Nevada, were authorized by Chairman Donald
Stephens and Thelma Adams, district manager.
a. There was no vote of the board to approve the advances.
58. No receipts were submitted to the FCCD for meals and miscellaneous expenses
incurred by the attending board members.
59. Stephens retained all of the money advanced to him for his attendance at the
1996 NACD conference.
a. No unused portion of the advance were returned.
60 The $2,000.00 advance received by Stephens was used for expenses incurred
by him and his wife.
a. No accounting of expenses was provided to the FCCD by Stephens.
61. The February 19, 1996, FCCD board meeting minutes include a reference to the
members attendance at the NACD conference held February 4 -7, 1996, as
follows:
"NACD Annual Meeting: Stephens, Shepler, Adams and Constantine attended.
50th Anniversary of NACD, over 2700 were registered."
a. There is no further reference to the 1996 NACD conference in the FCCD
meeting minutes.
62. Stephens received a private pecuniary benefit of $319.00 when the FCCD paid
for Stephens' wife's air travel to the 1996 NACD conference in Las Vegas,
Nevada.
63. Stephens also received a private pecuniary benefit when advance funds were
used to pay for expenses of his spouse, including meals.
a. Stephens admitted using Tree Fund Account funds for his wife's
expenses while attending the NACD conference.
The following findings relate to the allegation that Donald Stephens failed to file
Statements of Financial Interests for the 1994, 1995, and 1997 calendar year.
64. As a member of the FCCD, Donald Stephens was required to file Statements of
Financial Interests by May 1st of each year for information relating to the
previous calendar years.
65. No Statements of Financial Interests were filed by Stephens with the FCCD.
a. Stephens did not file Statements of Financial Interests for 1994, 1995,
1996, and 1997 calendar years with the FCCD.
Stephens, 98- 048_C2
Page 12
66. Donald Stephens used his public position as a member of the FCCD to obtain
a private pecuniary benefit for himself and a member of his immediate family.
a. Purchases from the Federal Surplus Program (Finding No. 48)
$2,189.47
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Donald Stephens,
hereinafter Stephens, has been a public official subject to the provisions of the Public
Official and Employee Ethics Act ( "Ethics Act "), Act 9 of 1989, Pamphlet Law 26, 65
P.S. §401, et ems. as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101,
The issue is whether Stephens as a Conservation District Director violated
Sections 1103(a) and 1104(a) of the Ethics Act as to the allegations that he used the
authority of his office for a private pecuniary benefit by making purchases paid with
Fayette Court Conservation District (FCCD) funds from the Federal Surplus Property
Program for his personal use; by failing to file Statements of Financial Interests (SFI's)
for the 1994, 1995, 1996, and 1997 calendar years; and by submitting expenses for
his spouse to travel to a conference.
Section 1103. Restricted activities.
65 Pa.C.S. §1103(a).
The term "conflict of interest" is defined under the Ethics Act as follows:
b. Airline Ticket (Finding No. 62) $ 519.00 [sic)
Total $2,508.47
65 Pa.C.S. §1102.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
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.
Section 1103(a) of the Ethics Act quoted above prohibits a public official /public
employee from using the authority of public office /employment or confidential
Stephens, 98- 048 = C2
Page 13
information received by holding such a public position for the private pecuniary benefit
of the public official /public employee himself, any member of his immediate family, or
a business with which he or a member of his immediate family is associated.
Section 1104. Statement of financial interests required to be filed.
(a) Public official or public employee. - -Each public
official of the Commonwealth shall file a statement of
financial interests for the preceding calendar year with the
commission no later than May 1 of each year that he holds
such a position and of the year after he leaves such a
position. Each public employee and public official of the
Commonwealth shall file a statement of financial interests
for the preceding calendar year with the department,
agency, body or bureau in which he is employed or to which
he is appointed or elected no later than May 1 of each year
that he holds such a position and of the year after he leaves
such a position. Any other public employee or public official
shall file a statement of financial interests with the
governing authority of the political subdivision by which he
is employed or within which he is appointed or elected no
later than May 1 of each year that he holds such a position
and of the year after he leaves such a position. Persons
who are full -time or part-time solicitors for political
subdivisions are required to file under this section.
65 Pa.C.S. §1104(a).
Section 1104(a) of the Ethics Act requires that each public official /public
employee must file a Statement of Financial Interests for the preceding calendar year,
each year that he holds the position and the year after he leaves it.
Having noted the issues and applicable law, we shall now summarize the
relevant facts.
Stephens served as a member of FCCD from 1957 through 1997 and as
chairman from 1986 through 1997. FCCD participates in the Federal Surplus Property
Program administered by the General Services Administration. In turn, the
Pennsylvania Department of General Services (DGS) is the Commonwealth agency
designated to distribute surplus federal property within federal guidelines. Participation
in the program is open to governmental agencies, political subdivisions and nonprofit
tax - exempt organizations that serve the public good in areas of health or education.
The program is not open to the general public and purchases are not permitted for
personal use. Only individuals registered with DGS are permitted to sign for surplus
property. For FCCD, Stephens and David Shepler were the only two individuals
authorized to sign for such purchases. No FCCD employees made purchases from the
program.
Purchases made of surplus property at DGS are recorded in distribution
documents which set forth requirements that the property purchased be placed in use
within one year of acquisition and continue in use for at least one year after the initial
use.
As the FCCD representative, Stephens signed six receipts for items of a federal
surplus property between January, 1994, and July, 1997. All the purchases made by
Stephens are delineated in Fact Finding 29. The total of Stephens's purchases
Stephens, 98- 048 = C2
Page 14
amounted to $2,084.88 which value is based upon a factor of 23.3% of the federal
cost. Although the property acquired by Stephens should have been for FCCD
purposes only, Stephens through his position obtained the property for his own
personal use. The payments of $2,084.88 for Stephens' purchases were made from
the FCCD Tree Account which is funded by proceeds from an annual tree sale by
FCCD. Such proceeds are limited inter alia to buying seedlings for subsequent tree
sales and purchases of surplus property. The expenditures from the FCCD Tree
Account were not voted by the Board.
Stephens reimbursed the FCCD Tree Account for some purchases with cash
after a check from him was returned as drawn without sufficient funds. There are no
records to confirm any cash deposits in the Tree Account.
In 1998, an inventory was conducted by DGS of the surplus property acquired
by FCCD. DGS determined that none of the property under restriction was located at
FCCD but was being utilized by Board Members Stephens and Shepler for their
personal use. On July 20, 1998, DGS advised the FCCD Board that it was
immediately suspended from participation in the Federal Surplus Program. Stephens
received a private pecuniary benefit of $2,189.47 as to items he purchased from the
federal surplus program as a FCCD member for his personal use. Fact Finding 48.
In, 1996, Stephens attended the National Association of Conservation Districts
(NACD) Annual Conference in Las Vegas, Nevada. Arrangements were made for four
FCCD Board Members, the District Manager who is married to one of the Board
Members and their spouses. The travel arrangements included airfare and hotel
accommodations for four couples for four nights. Airfare was $319.00 per person and
lodging was $68.50 per night with no extra charge for double occupancy. In addition,
FCCD Board Members were provided with advances to cover meals and miscellaneous
expenses. Stephens received an advancement of $2,000.00 for expenses incurred by
him and his spouse. Stephens received a pecuniary benefit of $319.00 when FCCD
paid for his spouse's airfare to the NACD Conference. Fact Finding 62.
As an FCCD member, Stephens was required to file SFI's. Stephens failed to
file SFI's for the 1994, 1995, 1996 and 1997 calendar years with FCCD.
Having summarized the above relevant facts, we must now determine whether
the actions of Stephens violated Section(s) 1103(a) and 1104(a) of the Ethics Act.
As to the purchases that Stephens made from the Federal Surplus Property
Program for his own personal use, such actions by Stephens were uses of authority
of office. But for the fact that Stephens was a member of the FCCD Board, he could
not have been the authorized representative of FCCD to purchase surplus property
through DGS. See, Juliante Order 809. The uses of authority of office by Stephens
resulted in a pecuniary benefit consisting of the property that he received at reduced
prices. The pecuniary benefit was a private one because there was no authorization
in law for Stephens to obtain the federal surplus property for his own personal use.
In fact, Federal Regulations expressly prohibit such action. Lastly, the private
pecuniary benefit inured to Stephens himself. Accordingly, Stephens violated Section
1103(a) of the Ethics Act when he used the authority of office to obtain a private
pecuniary benefit for himself consisting of federal surplus property that he purchased
as an FCCD Board Member with FCCD funds for his own personal use. Bumiller, Order
1036. The total private pecuniary benefit received by Stephens totaled $2,508.47.
Regarding the 1996 NACD Annual Conference, there was a use of authority of
office by Stephens in opting to take his spouse on that trip at FCCD expense. Such
use of authority of office resulted in a pecuniary benefit consisting of the airfare that
Stephens, 98- 048 -C2
Page 15 - -
Stephens did not have to personally pay. The pecuniary benefit was private because
there is no authorization in law for the FCCD to pay the travel expense for Stephens's
spouse. Lastly, the private pecuniary benefit inured to Stephens's spouse who is a
member of his immediate family as that term is defined in under the Ethics Act. See,
65 Pa.C.S. §1102. Accordingly, Stephens violated Section 1103(a) of the Ethics Act
when he used the authority of office to take his spouse to a NACD conference in Las
Vegas, Nevada at FCCD expense. See, Savitsky, Order 1017.
Regarding the SFI's filed by Stephens, the record reflects that Stephens failed
to file SFI's for the 1994, 1995, 1996 and 1997 calendar years with the FCCD.
Hence, Stephens violated Section 1104(a) of the Ethics Act when he failed to file SFI's
for the calendar years 1994, 1995, 1996 and 1997.
Turning to the matter of restitution, Section 1 107(13) of the Ethics Act, 65
Pa.C.S. §1107(13), specifically 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, since it has been determined that a financial
gain of $2,508.47 ($ 2,189.47 + $319.00) has been obtained in violation of the Ethics
Act, restitution is warranted. Therefore, Stephens is directed to make restitution in the
amount of $2,508.47 payable through this Commission to FCCD within 30 days of the
mailing of this Order. Stephens is further directed to file, within 30 days of the date
of mailing of this Order, SFI's with the FCCD for the calendar years 1994, 1995, 1996
and 1997. Copies of the SFI filings must be also filed with this Commission for
compliance verification purposes. Compliance will result in the closing of this case
with no further action. Non - compliance will result in the institution of an order
enforcement action.
IV. CONCLUSIONS OF LAW:
1. Donald Stephens, as a member of the Fayette County Conservation
District Board of Directors was a public official subject to the provisions
of Act 9 of 1989/Act 93 of 1998, Chapter 11.
2. Stephens violated Section 1103(a) of the Ethics Act when he used the
authority of office to obtain a private pecuniary benefit for himself
consisting of federal surplus property purchased with FCCD funds for his
own personal use.
3. Stephens violated Section 1103(a) of the Ethics Act when he used the
authority of office to obtain airfare for his spouse to a NACD conference
at FCCD expense.
4. Stephens violated Section 1104(a) of the Ethics Act when he failed to file
Statements of Financial Interest for the calendar years 1994, 1995,
1996, and 1997 at FCCD.
In Re: - Donald Stephens File Docket: 98- 048 -C2
: Date Decided: 8/30/99
: Date Mailed: 9/7/99
1. Donald Stephens, as a member of the Fayette County Conservation District
(FCCD) Board of Directors violated Section 1 103(a) of the Ethics Act when he
used the authority of office to obtain a private pecuniary benefit for himself
consisting of federal surplus property purchased with FCCD funds for his own
personal use.
2. Stephens violated Section 1103(a) of the Ethics Act when he used the authority
of office to obtain airfare for his spouse to 'a National Association of
Conservation Districts Conference at FCCD expense.
3. Stephens violated Section 1104(a) of the Ethics Act when he failed to file
Statements of Financial Interest for the calendar years 1994, 1995, 1996, and
1997 at FCCD.
ORDER NO. 1133
4. Stephens is directed to make payment of $2,508.47 through this Commission
to the Fayette County Conservation District and file Statements of Financial
Interests for the calendar years 1994, 1995, 1996 and 1997 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,
4 1u4tJ & &a.)
DANEEN E. REESE, CHAIR