HomeMy WebLinkAbout985 BaxterIn Re: Roger Baxter
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
Before:
File Docket: 94- 071 -C2
Date Decided: 10/26/95
Date Mailed: 11/8/95
Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Roy W. Wilt
Allan M. Kluger
John R. Showers
Rev. Joseph G. Quinn
Boyd E. Wolff
The Investigative Division of the State Ethics Commission
conducted an investigation regarding a possible violation of the
State Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 g sev.
Written notice of the specific allegation(s) was served at the
commencement of the investigation. A Findings Report was issued
and served upon completion of the investigation which constituted
the Complaint by the Investigation Division. An Answer was not
timely filed and a hearing was deemed waived. The record is
complete. This adjudication of the Commission is hereby issued
which sets forth the individual Allegations, Findings of Fact,
Discussion, Conclusions of Law and Order.
This adjudication is final and will be made available as a
public document thirty days after issuance. However,
reconsideration may be requested which will defer public release of
this adjudication pending action on the request by the Commission.
A request for reconsideration does not affect the finality of this
adjudication. A reconsideration request must be received at this
Commission within thirty days of issuance 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).
The files in this case will remain confidential in accordance
with Act 9 of 1989, 65 P.S. §408(h). Any person who violates
confidentiality of the Ethics Law is guilty of a misdemeanor
subject to a fine of not more than $1,000 or imprisonment for not
more than one year, 65 P.S. §409(e). Confidentiality does not
preclude discussing this case with an attorney at law.
Baxter, 94- 071 -C2
Page 2
I. ALLEGATION:
That Roger Baxter, a public official in his capacity as a
Supervisor for Wharton Township, Fayette County, violated the
following provisions of the State Ethics Act (Act 9 of 1989) when
he submitted requests for and received reimbursement for expenses
related to his attendance at conventions /conferences to which he
was not entitled; and when he participated in approving the payment
of said expenses to himself and when he failed to file Statements
of Financial Interests in calendar years 1991 and 1993.
Section 3. Restricted Activities
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest. 65 P.S.
5403(a).
Section 4. Statement of financial interests
required to be filed
(a) 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 P.S. §404(a).
Section 2. Definitions
"Conflict" or "conflict of interest."
Use by a public official or public employee of
Baxter, 94- 071 -C2
Page 3
II. FINDINGS:
the authority of his office or employment or
any confidential information received through
his holding public office or employment for
the private pecuniary benefit of himself, a
member of his immediate family or a business
with which he or a member of his immediate
family is associated. "Conflict" or "conflict
of interest" does not include an action having
a de minimis economic impact or which affects
to the same degree a class consisting of the
general public or a subclass consisting of an
industry, occupation or other group which
includes the public official or public
employee, a member of his immediate family or
a business with which he or a member of his
immediate family is associated. 65 P.S. §402.
1. On October 31, 1994, the Investigative Division of the State
Ethics Commission received a signed, sworn complaint alleging
that Roger Baxter violated provisions of the State Ethics Act
(Act 9 of 1989).
2. Upon review of the complaint by the Director of Investigations
a recommendation was made to the Executive Director to
commence a preliminary inquiry.
3. At the direction of the Executive Director, the Investigative
Division initiated a preliminary inquiry on November 16, 1994.
4. The preliminary inquiry was completed within sixty days.
5. On January 13, 1995, a letter was forwarded to Roger Baxter,
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 016
239 164.
b. The domestic return receipt bore the signature of Roger
Baxter, with a delivery date of January 17, 1995.
6. The full investigation was commenced at the direction of the
Executive Director of the State Ethics Commission.
7. The Investigative Complaint was mailed to the Respondent on
July 12, 1995.
8. Roger Baxter has served as an elected Wharton Township
Baxter, 94- 071 -C2
Page 4
Supervisor, Fayette County, since 1992.
a. Baxter previously served as Township Supervisor from 1986
to 1990.
b. Baxter was employed as a laborer for Wharton Township
from May, 1992, until January, 1994.
c. At the January 4, 1994, Reorganization Meeting of the
Board of Supervisors, Baxter was appointed roadmaster.
9. Wharton Township regularly sends a Voting Delegate to the
annual convention of the Pennsylvania Association of Township
Supervisors.
a. The delegate is appointed at the yearly Reorganizational
Meeting in January.
b. The Voting Delegate is always a township supervisor.
c. Other supervisors and various township personnel may also
attend the convention after they are authorized by the
Board during the yearly Reorganizational meeting.
d. The Board of Supervisors will approve expenses for
officials and employees authorized to attend the
convention.
10. The Pennsylvania State Association of Township Supervisors
hold their annual convention in Hershey, PA.
a. The convention is held during the month of April.
b. The convention begins with registration on Sunday, and
runs through the following Wednesday.
11. The 1992 Pennsylvania State Association of Township
Supervisors Annual Convention was held from April 5, through
April 8, 1992, in Hershey, PA.
12. The minutes of the Wharton Township Supervisor's
Reorganizational meeting held on January 6, 1992, indicate
that Supervisor Harry Burd was nominated and affirmed to
attend the 1992 PSATS Convention as the Voting Delegate.
a. "Joe Henning made a motion for Harry to be the delegate
to the State Convention, seconded by Roger Baxter."
Present: Harry Burd, Roger Baxter, and Joseph Henning.
Vote: Unanimous and carried.
b. No other township official or employee was authorized to
Baxter, 94- 071 -C2
Page 5
attend the PSATS Convention.
13. PSATS supplies Delegate Certification forms to the township
secretaries and /or managers throughout the state.
a. The forms are for the purpose of pre- registration for
lodging and (certification of) attendance.
b. The form defines voting or non - voting delegate.
c. The form also exhibits an area for guest information.
d. A township may submit one for each official attending.
14. The PSATS received notice from Wharton Township by way of an
official Delegate Certification prior to April, 1992, as to
the township's representatives attending the convention.
a. Supervisor Harry Burd was noted to be the sole delegate
attending.
b. Hurd was identified as the official voting delegate.
c. There were no other representatives from Wharton Township
noted in the written Delegate Certification.
d. The township enclosed a $70.00 Delegate Registration fee
for their sole representative Harry Burd.
e. No other Wharton Township supervisor was registered to
attend the convention.
15. Baxter attended the 1992 PSATS Convention held in Hershey,
PA., without official authorization from the Wharton Township
Board of Supervisors.
16. Baxter attended even though he was not authorized by the Board
of Supervisors to attend the convention.
a. Baxter was not listed as a Certified Representative from
Wharton Township on the official PSATS Registration form.
17. Roger Baxter previously attended conventions of the
Pennsylvania State Association of Township Supervisors from
1985 to December, 1991, in his capacity as Wharton Township
Supervisor.
18. Baxter submitted expenses for reimbursement to the township
for his attendance at the Annual 1992 PSATS Convention.
a. Baxter's reimbursement request was submitted on a
Delegate Attendance Certification form.
Baxter, 94- 071 -C2
Page 6
b. Baxter did not supply any receipts with the Attendance
Certification.
c. Baxter certified that he attended the convention from
April 5, 1992, through April 8, 1992.
d. He also certified expenses totaling $510.78.
19. The Reimbursement Request submitted by Baxter for his
attendance at the convention, included expenses for lodging,
meals, mileage and tolls, totaling $510.78, as follows:
Date Meals Lodging Mileage Misc. Total
4/5 $81.82 $113.42 0.00 $5.50 $200.74
4/6 0.00 113.42 0.00 0.00 113.42
4/7 0.00 113.42 0.00 0.00 113.42
4/8 0.00 0.00 $83.20 0.00 83.20
Totals $81.82 $340.26 $83.20 $5.50 $510.78
20. Township General Fund check #2369, dated 07/09/92, in the
amount of $510.78, was issued to Roger Baxter as reimbursement
for expenses he incurred at the 1992 PSATS Convention.
a. The check was signed by Secretary /Treasurer Laura Savage
and Supervisor Burd.
b. The signature of the Secretary /Treasurer and one
supervisor are required on all township checks.
c. The reverse side of this check was endorsed by Baxter.
21. The payment to Baxter as outlined in Finding #20 was included
in the monthly bills presented for payment at the Township
Supervisor's meeting, dated July 6, 1992.
a. The bill list was composed by Secretary /Treasurer Laura
Savage, prior to the supervisor's meeting.
b. Each supervisor received a copy of the list prior to the
meeting.
c. Bill lists are voted on in their entirety.
22. During the July 6, 1992, Supervisor's meeting, Roger Baxter
made the motion to pay the bill list which included his
convention expense reimbursement.
"Roger Baxter made a motion to pay. Seconded by Joe Henning;
vote unanimous."
Present: Supervisors Burd, Henning and Baxter.
Baxter, 94- 071 -C2
Page 7
23. In January, 1993, during an audit of the 1992 accounts, the
Wharton Township Board of Auditors questioned Baxter's 1992
convention expenses.
a. The auditors questioned Baxter's lack of receipts and
documentation of expenses.
24. Between January and March, 1993, Baxter did not supply the
township auditors with receipts to support his reported
convention expenses.
a. Numerous requests made by the auditors are recorded in
the supervisor's meeting minutes.
b. Baxter told the auditors his lodging and meal expenses
were charged to his credit card.
c. Baxter advised the auditors that he was experiencing
problems in securing receipts from the credit card
company which caused his delay in submitting them to the
auditors.
25. In March, 1993, Baxter submitted to the township auditors a
Hotel Hershey receipt, #444395, for lodging in Room #433, from
April 5, through April 7, 1992, which totalled $348.94.
26. Baxter also submitted to the auditors one turnpike toll
receipt #4673, in the amount of $5.50.
a. The receipt was dated April 5, 1992, at 4:06 p.m.
27. The remaining $156.34 balance of the $510.78, Baxter was
reimbursed, reflected his reported meals and mileage as
follows:
a. Mileage: 416 miles @ $ .20 /mile = $83.20
b. Meals:
$75.14
28. Township Auditor Sondra Cessarino, questioned the authenticity
of receipts Baxter submitted in support of his convention
expenses.
a. Baxter's receipt appeared to have been altered as to the
name and number of room occupants.
b. The auditors decided
Hotel Hershey.
29. Prior to March 22, 1993,
letter requesting Baxter's
Hershey.
to request original copies from
the township auditors drafted a
lodging receipts from the Hotel
Baxter, 94- 071 -C2
Page 8
30. During the March 22, 1993, Supervisor's meeting, Auditor
Cessarino requested that Baxter sign the drafted letter
addressed to the Hotel Hershey.
a. Baxter's signature was necessary to obtain the documents.
b. The letter authorized the Hotel Hershey to release
information concerning Baxter's stay from April 5, 1992,
through April 8, 1992, in Room 433, to guest number
444395.
c. Baxter signed the letter.
31. By way of letter dated April 13, 1993, the Hotel Hershey
supplied a receipt for lodging expenses from April 5th through
the 7th, 1992, for room #433, totaling $348.94.
a. The receipt was No. 444395.
b. The letter also confirmed that records did not exist for
lodging and related costs for Roger Baxter for the period
of April 5, 1992, to April 8, 1992.
32. Hotel Hershey receipt #444395, confirms that Carol Martin
occupied room #433, from April 5th through the 7th, 1992.
a. The receipt totalled $348.94 for room, dining and movie
charges.
b. The receipt identified the room was billed to:
Carol Martin
Bullskin Township, Fayette County
R.D. #2, Box 417
Mt. Pleasant, PA 15666
c. The number in party was identified as two.
33. Carol Martin has been an elected Auditor of Bullskin Township,
Fayette County, since 1990, and the appointed Secretary of the
Fayette County Supervisors Association.
a. Carol Martin attended the 1992 PSATS Convention in
Hershey.
b. She is familiar with Roger Baxter.
34. Bullskin Township records confirm that Martin submitted
receipt #444395, from the Hotel Hershey for room #433, for
reimbursement of convention costs.
35. Bullskin Township records also confirm that Carol Martin
submitted Pennsylvania Turnpike receipt #4673, dated April 5,
Baxter, 94- 071 -C2
Page 9
1992, at 4:06 p.m., for $5.50.
a. The original toll receipt was submitted by Martin.
b. The toll receipt submitted by Roger Baxter to Wharton
Township exactly matches the Martin's receipt.
(Reference Finding #26).
36. Baxter's receipt and Martin's receipt from the Hotel Hershey
were identical with the exception of the typeset used in the
labeling of Baxter's name, address and number of room
occupants.
a. Baxter's receipt identifies the room billed to:
Roger Baxter
Fayette Co. Twp. Sup. Assoc.
Box 26
Gibbon Glade, PA 15440
b. Baxter's receipt number (444395) is identical to the
receipt number submitted by Carol Martin to Bullskin
Township.
c. Baxter's room number (433) is identical to the room
number on Carol Martin's receipt.
d. Baxter's receipt reflects the number in party as one.
37. Baxter's Pennsylvania Turnpike receipt #4673, dated April 5,
1992, at 4:06 p.m., for $5.50, was identical to the one
submitted by Carol Martin to Bullskin Township.
a. The toll was from Somerset to Harrisburg.
b. The toll receipt Baxter submitted was a photostatic copy.
c. The entry and exit points to the turnpike on Baxter's
receipt are identical to Carol Martin's receipt.
38. After the original receipts were received from the Hotel
Hershey, the auditors requested that Baxter reimburse the
township in the amount of $510.78.
a. This is the amount of reimbursement received by Baxter
for the 1992 PSATS Convention.
b. The auditors based their ruling on Baxter not being
approved by the Board of Supervisors to attend the
convention, and the auditors doubted authenticity of
Baxter's receipts.
c. Baxter did not voluntarily comply with the auditors'
Baxter, 94- 071 -C2
Page 10
requests.
39. During a June 1, 1993, Auditor's meeting, Wharton Township
Auditors ordered a $20.00 weekly deduction from Baxter's
township wages in order to make reimbursement totalling
$510.78.
40. Deductions were made from Baxter's weekly paycheck as follows:
Date Amount Deducted
07/02/93 $ 20.00
07/09/93 20.00
07/16/93 20.00
07/23/93 20.00
07/30/93 20.00
08/06/93 20.00
Total: $120.00
a. Deductions from Baxter's weekly pay ceased after August
6, 1993, for an unknown reason.
41. On August 2, 1993, Baxter submitted mileage reimbursement
claims to the township pertaining to his attendance at monthly
South West Regional Tax Bureau (SWRTB) meetings:
a. Baxter was the appointed Wharton Township Representative
to the SWRTB.
b. SWRTB meetings attended by Baxter from January, 1992,
through June, 1993, totaled 16.
c. Baxter's attendance was confirmed at all of the sixteen
meetings through the auditing of the SWRTB meeting
minutes.
d. Total meetings: 16
X 73, miles
1168 total miles
.28 mileage reimbursement per mile
$327.04 total
42. On August 30, 1993, Baxter submitted mileage reimbursement
claims pertaining to his attendance at monthly Fayette County
Supervisors Association meetings in the amount of $224.95.
a. As a Township Supervisor, Baxter was eligible to attend
the meetings.
b. From January, 1992, to December, 1993, Baxter attended
seventeen meetings.
Baxter, 94- 071 -C2
Page 11
c. Baxter's attendance was confirmed at all of the seventeen
meetings through the auditing of the meeting minutes.
d. Total mileage for seventeen meetings 803.40 miles
Mileage rate
Total $224.95
43. Both mileage reimbursements Baxter claimed for SWRTB and
County Supervisor's Association meetings were submitted in
order to attempt to offset the $510.78, Baxter was directed to
re -pay for his attendance at the 1992 PSATS Convention.
a. These reimbursements totaling $551.99 exceeded the
convention reimbursement by $41.21.
b. The rate claimed (.28 per mile) by Baxter was not
approved by either the Board of Supervisors or auditors.
44. Wharton Township Auditors refused to reimburse Baxter for
either the SWRTB or County Supervisor's Association meetings
mileage claims.
a. The refusal was based on no mileage reimbursement rates
being set by either the Board of Supervisors or the
auditors.
45. Baxter notified the auditors in February, 1994, that the
township owed him income arrearage retro - active from January,
1994.
a. Baxter asserted that the auditors did not adjust his
salary increase, as a result of his appointment to
roadmaster at the January 4, 1994, reorganization meeting
of the Board of Supervisors.
46. While confirming Baxter's appointment as Roadmaster, the
auditors discovered that Baxter's payroll deduction had ceased
at a total of $120.00.
a. The time lag in this discovery was due to the year delay
audit system that is in effect in the township.
b. The auditors determined at that time that Baxter owed a
balance of $390.78 for the 1992 PSATS Convention
expenses.
47. Township auditors determined that Baxter was owed $900.00 in
back pay, due to his reclassification from laborer to
roadmaster.
a. This is noted as the difference in roadmaster salary of
$10.50 /hour, and laborer salary of $8.00 /hour for nine
Baxter, 94- 071 -C2
Page 12
weeks.
48. Township auditors deducted the balance of Baxter's unpaid 1992
convention expenses ($390.78) from the sum due him for his
retro- active pay as roadmaster ($900.00) for a total of
$509.22.
a. The balance of $509.22, following standard deductions,
was paid to Baxter.
49. Baxter admitted to using an altered receipt from the Hotel
Hershey to justify convention expenses.
a. He claims to have paid $5.00 to a desk clerk at the Hotel
Hershey for a room receipt.
b. The room receipt coincidentally was Carol Martin's.
c. The receipt was obtained on the morning of April 7, 1992,
just prior to his departure.
d. Baxter directed the clerk to type in his name, address
and number of room occupants over the original receipt.
e. Baxter claims he did not lodge in Room 433 or consume the
meals.
50. Carol Martin admitted her knowledge of Baxter's use of her
Hershey Hotel and turnpike toll receipts.
a. Martin asserted that Baxter obtained the receipts from
her purse without her consent.
b. Martin maintains that Baxter later advised her that he
took the receipts.
51. Statements of Financial Interests on file with Wharton
Township include the following filing for Baxter:
a. Calendar year: 1991
No forms filed
b. Calendar year: 1992
Filed: 03/10/93
Position: Township Supervisor
Creditors: Fayette Federal Credit Union
Direct /Indirect Income: Wharton Township
All other Financial Interests: None
c. Calendar year: 1993
No forms filed
Baxter, 94- 071 -C2
Page 13
52. A Statement of Financial Interests Audit conducted on December
29, 1994, revealed that Baxter failed to file SFI forms for
calendar years 1991 and 1993, as a Wharton Township
Supervisor.
53. Baxter filed an amended Statements of Financial Interests for
calendar year 1991 as a candidate on February 3, 1995.
a. Calendar year: 1991
Filed 02/03/95
Position: Township Supervisor
Creditors: Fayette Federal Credit Union, 1%
Direct /Indirect Income: Wharton Township
All other Financial Interests: None
54. Baxter filed an amended Statement of Financial Interests for
calendar year 1993 on February 3, 1995.
a. Calendar year: 1993
Filed 02/03/95
Position: Township Supervisor
Creditors: Fayette Federal Credit Union, 1%
Direct /Indirect Income: Wharton Township
All other Financial Interests: None
III. DISCUSSION:
As a Supervisor for Wharton Township, Fayette County, Roger
Baxter, hereinafter Baxter, is a public official as that term is
defined under Act 9 of 1989. 65 P.S. §402. As such, his conduct
is subject to the provisions of the Ethics Law and the restrictions
therein are applicable to him.
Initially, it is noted that Section 9 of Act 9 of June 26,
1989 provides, in part, as follows:
This amendatory act shall not apply to
violations committed prior to the effective
date of this act, and causes of action
initiated for such violations shall be
governed by the prior law, which is continued
in effect for that purpose as if this act were
not in force. For the purposes of this
section, a violation was committed prior to
the effective date of this act if any elements
of the violation occurred prior thereto.
Since the occurrences in this case transpired after the
effective date of Act 9 (June 26, 1989), we must apply the
provisions of Act 9 to determine whether the Ethics Act was
violated.
Baxter, 94- 071 -C2
Page 14
Under Section 3(a) of Act 9 of 1989, a public official/
employee shall not engage in conduct that constitutes a conflict of
interest. The term "conflict of interest" is defined under Act 9
of 1989 as quoted above.
Section 4(a) of the Ethics Law quoted above requires that each
public official /employee must file a Statement of Financial
Interests for the preceding calendar year of the year in which he
is employed or served and for the year after he leaves such
position.
Initially, we must consider a procedural issue that has arisen
regarding the receipt of an Answer to the Investigative Complaint.
The pleading stage in this case began with the issuance of the
Investigative Complaint on July 12, 1995. On its face, the
Investigative Complaint stated that an Answer had to be received at
this Commission within thirty (30) days of issuance and that the
Respondent should take that document immediately to an attorney.
In this case, an Answer was received on August 22, 1995 which was
41 days after the issuance of the Investigative Complaint. An
Application Nunc Pro Tunc was received from Baxter's counsel on
August 24, 1995. In the Application, it is argued that during
consultation between Baxter and his counsel on July 28, 1995, it
was "indicated" that a reply was due on or before August 27, 1995
and that it was not "discovered" until prior to forwarding the
Answer by overnight mail on August 21, 1995 that the Answer was in
fact due within 30 days of July 12, 1995. Baxter argues that
because no adjudication has been made, there is no prejudice in
accepting the Answer.
It is clear under the Ethics Law and Regulations that a
response to the Investigative Complaint must be received within 30
days. 65 P.S. 5408(e); 51 Pa. Code 521.5(k). As noted above, even
the face sheet of the Investigative Complaint states that an Answer
must be received within 30 days. The Answer in this case was
received eleven days late.
In order for a late answer to be deemed timely filed, there
must either be a break down in the mail delivery system (Getz v.
Pennsylvania Game Commission, 83 Pa. Commw. 59, 475 A.2d 1369
(1984); West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909
(1975)) or non - negligent failure by the party's attorney (Bass v.
Com., 485 Pa. 256, 401 A.2d 1133 (1979)).
Neither of the conditions for allowing the filing of a late
Answer is present in this case. In fact, there has not been even
an allegation of any breakdown in the mail system or non - negligent
failure of counsel. The only argument proffered is that the late
filing would not be prejudicial because no decision has been
rendered. That argument presents no basis for allowing the filing
of a late Answer. Parenthetically, we note that our Regulations
allow for the filing of an application for an extension to file an
Baxter, 94- 071 -C2
Page 15
Answer. 51 Pa. Code §21.5(k). No such request was made by Baxter
in this case prior to the filing deadline. The Application to File
Nunc Pro Tunc is denied.
The two substantive issues before us are whether Baxter
violated Section 3(a) of Act 9 of 1989 as to the allegation that he
submitted an expense reimbursement request, participated in its
approval and received reimbursement for expenses relative to his
unauthorized attendance at a convention and second, whether Baxter
violated Section 4(a) of Act 9 of 1989 regarding the allegation
that he failed to file Statements of Financial Interests (FIS's)
for the calendar years 1991 and 1993.
Baxter served as a Township Supervisor in Wharton Township,
Fayette County from 1986 to 1990 and from 1992 to the present. As
a working township employee, Baxter was a laborer from May, 1992
until January, 1994 when he was appointed township roadmaster.
For the Pennsylvania State Association of Township Supervisors
(PSATS) Annual Convention which was held in Hershey from April 5
through April 8, 1992, the Wharton Township Board of Supervisors
designated Harry Burd to be the voting delegate (Fact Finding 12).
Since no other township official was authorized to attend the 1992
PSATS Convention, Baxter attended without official authorization
(Fact Findings 12b, 15). Only Harry Burd was listed as the
certified representative from Wharton Township on the PSATS
registration form (Fact Findings 14, 16a).
Baxter submitted expense reimbursement for the 1992 PSATS
Convention on a Delegate Attendance Certification Form (Fact
Finding 18). Although Baxter did not supply any receipts with the
Attendance Certification, he listed his total expenses as $510.78.
The reimbursement request by Baxter listed expenses for lodging,
meals, mileage and tolls (Fact Finding 19).
The expense reimbursement of Baxter was submitted as part of
a group of bills for the July 6, 1992 meeting of the Board of
Wharton Township Supervisors where Baxter made a motion to pay all
bills which motion passed unanimously (Fact Findings 21, 22).
Thereafter, a township check in the amount of $510.78 was issued to
and cashed by Baxter as reimbursement for his expenses (Fact
Finding 20).
At the January, 1993, meeting of the Wharton Township Board of
Auditors, questions were raised about Baxter's 1992 PSATS
Convention expenses because of the lack of receipts and
documentation. Although the Auditors made numerous requests for
such documentation, Baxter did not supply any receipts asserting
that the expenses were charged to his credit card and that he was
experiencing problems in securing receipts from the credit card
company (Fact Finding 24).
Baxter, 94- 071 -C2
Page 16
In March, 1993, Baxter finally submitted certain receipts to
the Auditors for lodging and turnpike tolls; however, one Auditor
questioned the authenticity of the receipts which appeared to have
been altered (Fact Findings 25 -28). Thereafter, the Auditors
decided to request original copies of the hotel receipt and drafted
a letter for Baxter's signature requesting such documentation (Fact
Findings 28b, 29).
Hotel Hershey supplied a receipt for lodging expenses in the
amount of $348.94 for Room 433 from April 5 through April 7, 1992
(Fact Finding 31). The records of Hotel Hershey reflect that there
were no lodging or related costs for Baxter during that period
(Fact Finding 31b). The Hershey Hotel records reflect that receipt
#444395 for Room 433 in that time period was for the occupancy of
Carol Martin (Fact Finding 32). Martin, who is an acquaintance of
Baxter, attended the 1992 PSATS Convention (Fact Finding 33).
Martin is elected Bullskin Township Auditor and the appointed
Secretary of the Fayette County Supervisors Association. The
records of Bullskin Township establish that Martin submitted
receipt #444395 for Hotel Hershey, Room 433, for reimbursement as
part of her convention expenses (Fact Finding 34).
As to the receipts that both Martin and Baxter submitted to
their respective townships, the Pennsylvania Turnpike toll was
identical (Fact Finding 37). The Hotel Hershey receipt was also
identical but for the change in labelling as to name, address, and
number of room occupants (Fact Finding 36).
After the original receipts from Hotel Hershey were received
by the Auditors, they requested that Baxter reimburse $510.78 to
the township (Fact Finding 38). The reimbursement demand by the
Auditors was based upon .. both the lack of approval for Baxter to
attend the convention as well as the questionable validity of the
receipts (Fact Finding 38b).
When Baxter did not comply with the Auditors request, the
Auditors instituted a $20.00 per week deduction from Baxter's
township wages in order to make reimbursement for the $510.78 (Fact
Finding 39). Such deductions began on July 2, 1993 but stopped on
August 6, 1993 with only $128.00 being reimbursed (Fact Finding
40) .
In August, 1993, Baxter submitted mileage reimbursement claims
to the township for his attendance at both the monthly Southwest
Regional Tax Bureau (SWRTB) meetings and the monthly Fayette County
Supervisor Association (FCSA) meetings (Fact Findings 41, 42). The
total mileage reimbursement claimed by Baxter for these two sets of
meetings attendance totaled $551.99 which exceeded the $510.78
disallowed expense for the 1992 PSATS Convention (Fact Finding 43).
Although Baxter sought to offset the claimed mileage for the SWRTB
and FCSA meetings against the disallowed 1992 PSATS Convention
expense reimbursement, the offset was disallowed by the Auditors
Baxter, 94- 071 -C2
Page 17
because the mileage rates were not set either by the Board of
Supervisors or the Auditors (Fact Finding 44).
In February, 1994, Baxter notified the Auditors that the
township owed him an arrearage due to the failure to increase his
salary after he was appointed roadmaster on January 4, 1994 (Fact
Finding 45). The Auditors determined that Baxter was in fact owed
$900.00 in back pay because of his reclassification from laborer to
roadmaster (Fact Finding 47). After the Auditors deducted the
$390.79 balance that Baxter still owed, the Auditors paid Baxter
the remaining net balance (Fact Finding 48).
Regarding the FIS's filed by Baxter, a review of the records
of Wharton Township establish that Baxter filed an FIS in the 1992
calendar year but did not file FIS's for the calendar years 1991
and 1993 (Fact Finding 51). However, Baxter filed amended FIS's
for the 1991 and 1993 calendar years on February 3, 1995 (Fact
Findings 53, 54).
In applying the provisions of Act 9 of 1989 quoted above, we
find a violation of Section 3(a) as to Baxter's receipt of
unauthorized expenses for his attendance at the 1992 PSATS
Convention. There was a use of authority of office on the part of
Baxter in this case. Although the Board of Supervisors did not
authorize his attendance, Baxter submitted expense reimbursement in
the amount of $510.78. But for the fact that Baxter was an elected
township supervisor, he could not have claimed such expenses. Such
action constituted a use of authority of office by Baxter.
Juliante, Order 809. In addition, the use of authority of office
resulted in a pecuniary benefit consisting of $510.78 that Baxter
claimed and received in expense reimbursement. The pecuniary
benefit was private for two reasons. First, since the Township
Board of Supervisors did not authorize Baxter's attendance, the
pecuniary benefit was contrary to law and was a private pecuniary
benefit. Second, some of the claimed expenses appear to be
invalid. Lastly, the private pecuniary benefit inured to Baxter
himself. Therefore, a violation of Section 3(a) of Act 9 of 1989
occurred when Baxter received expense reimbursement for his
unauthorized attendance at the 1992 PSATS Convention. Hessinger,
Order 931.
We do not impose restitution in this case because the private
pecuniary benefit of $510.78 which Baxter received was deducted
from his wages and back pay by the Auditors.
This Commission has the power to impose a treble penalty. The
Ethics Law provides:
Section 9. Penalties
(c) Any person who obtains financial gain
Baxter, 94- 071 -C2
Page 18
65 P.S. 5409(c).
from violating any provision of this act, in
addition to any other penalty provided by law,
shall pay a sum of money equal to three times
the amount of the financial gain resulting
from such violation into the State Treasury or
the treasury of the political subdivision.
Treble damages shall not be assessed against a
person who acted in good faith reliance on the
advice of legal counsel.
In this case, we believe that the conduct of Baxter is of such
an egregious nature that a treble penalty is warranted. See
Choura1, Order 942. It is clear to us that Baxter took deliberate
action to obtain reimbursement for an unauthorized lodging expense
of $340.26 which he did not incur. The same is true as to the
turnpike toll receipt of $5.50. Although we are able to make such
a determination as to the lodging and tolls by reviewing the
reimbursement received by Carol Martin, we cannot make such a
comparison, based upon the evidence of record, as to the meals and
mileage. Since the lodging and tolls total $345.76, we shall
impose a treble penalty of $1,037.28 payable to Pennsylvania State
Treasury which must be received at this Commission within 30 days
of the date of issuance of the order. Failure to comply will
result in the institution of an order enforcement action.
Regarding the allegation that Baxter failed to file FIS's in
calendar years 1991 and 1993, we find technical violations of
Section 4(a) of Act 9 of 1989 for those two years. The record
reflects that Baxter did not file FIS's for the 1991 and 1993
calendar year. However, we note that on February 3, 1995, Baxter
filed amended FIS's for both the 1991 and 1993 calendar year. On
that basis we find two technical violations of Section 4(a) of Act
9 of 1989. Beeler, Order 965.
Since Baxter continues in office as a Wharton Township
Supervisor, we remind Baxter that public office is a public trust
and that he must take particular care to ensure that his actions do
not create a conflict of interest as to his future conduct.
Helsel, Order 801.
IV. CONCLUSIONS OF LAW:
1. Roger Baxter as a Wharton Township Supervisor, Fayette County,
is a public official subject to the provisions of Act 9 of
1989.
2. Baxter violated Section 3(a) of Act 9 of 1989 when he received
unauthorized expenses for attending a 1992 PSATS Convention.
Baxter, 94- 071 -C2
Page 19
3. Two technical violations of Section 4(a) of Act 9 of 1989
occurred when Baxter failed to timely file Financial Interests
Statements for the 1991 and 1993 calendar years.
In Re: Roger Baxter
ORDER NO. 985
File Docket: 94- 071 -C2
Date Decided: 10/26/95
Date Mailed: 11/8/95
1. Roger Baxter as a Wharton Township Supervisor, Fayette County,
violated Section 3(a) of Act 9 of 1989 when he received
unauthorized expenses for attending a 1992 PSATS Convention.
2. Two technical violations of Section 4(a) of Act 9 of 1989
occurred when Baxter failed to timely file Financial Interests
Statements for the 1991 and 1993 calendar years.
3. A treble penalty in the amount of $1,037.28 is imposed upon
Baxter to be paid through the Commission to the Pennsylvania
State Treasury within 30 days of the date of issuance of this
Order.
a. Failure to comply will result in the institution of an
order enforcement action.
BY THE COMMISSION,
64tLU �
DANEEN E. REESE, CHAIR