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HomeMy WebLinkAbout687-R HavensMs. Lovie Havens Box 32, Star Route Emporium, PA 15834 Re: 86 -086 -C Dear Ms. Havens: A. Findings: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 687 -R Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair W. Thomas Andrews G. Sieber Pancoast Dennis C. Harrington James M. Howley Date Decided: June 1. 1989 Date Mailed: June 8, 1989 The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. On April 26, 1989, a hearing on the matter was conducted and relevant evidence and testimony was presented. The Commission has now completed its investigation. The individual allegations, conclusions, and findings on which those conclusions are based are as follows: I. Allegation: That you, former Secretary /Treasurer of Wallaceton Borough, Clearfield County, violated the following provisions of the Ethics Act (Act 170 of 1978), in that you authorized additional payments to yourself for attending special meetings of council: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. S403(a). Lovie Havens Page 2 1. You served as Secretary /Treasurer of Wallaceton Borough, Clearfield County, from June, 1982 through December, 1984. a. You were appointed to fill the position, after the resignation of Lula Shimmel, who resigned for health reasons. b. Lula Shimmel is your mother. 2. Minutes of the Wallaceton Borough Council meetings reflect the following in regard to your hiring: a. January 2, 1982: Lula Shimmel was retained as Secretary, for the year 1982. b. February 3, 1982: No minutes were recorded do to the serious illness of the Secretary. c. March 1, 1982: Bills reflect that you were paid $8.00; and your niece, Robin Maines was paid $5.86. d. June 7, 1982: Lula Shimmel resigns as Secretary due to health reasons, after serving nearly 15 years on Council. You were appointed Secretary by Council. e. January, 1983: You were retained as Secretary. f. January 9, 1984: Mary Lou English made the - motion to appoint you as Secretary. Second by Harold Williams. All in favor - 'motion was passed and carried. g. January 17, 1985: Harold Williams nominated you be retained as Secretary. Second by Phil Quick. Mary Lou English nominated Jamie Sternesky, Second by Dottie Miller. President Phil Dixon Lovie Havens Page 3 voted for Jamie Sternesky breaking the tie. Jamie Sternesky - Secretary. 3. Minutes of Wallaceton Borough Council meetings reflect the following in regard to the salary of Council and the Secretary: a. January 5, 1981: Phillip Dixon made a motion to give the Secretary a raise in pay of an additional $50 a month. Twenty -five dollars ($25 for office rent, and $25 for the raise. Richard Shirey seconded the motion and it was passed. b. January 2, 1982: Phillip Dixon made the motion to pay council and Secretary full pay for each meeting attended, Harold Williams seconded the motion. (1) Minutes were recorded in both ink and pencil. They were recorded in the following manner: the heading and date, and the first sentence from "Meeting ... accepted as read" was in light black ink. (2) The middle section was written in pencil, beginning with a flat point pencil, to a sharp point pencil, then back to a flat point pencil.. In pencil "Harold F. William ... Bills were passed to be paid." The portion which reflects the motion by Phillip Dixon to pay Council and secretary full pay for each meeting attended, appears to have been written over a portion that was erased. (3) (4) The minutes appear to be written in Lula Shimmel's hand writing. c. August 16, 1982: There was a discussion on a raise for the council members pay. They will get $10 a month more; making it $20 a month instead of $10 a month each. d. March 4, 1985: Mary Lou English made a motion to pay the borough secretary $100 per month and $25 for rent, and expenses. Dottie Miller seconded the motion. Lovie Havens Page 4 It was also stated Council members are to receive $20 per meeting. They are also to receive $20 for special meetings, but only two per month. e. December 2, 1985: Dottie Miller made a motion for the borough Secretary to receive $20 for special meetings. Harold Williams seconded the motion. 4. Minutes of the Wallaceton Borough Council meeting minutes reflect that the following special meetings were held between 1982 and 1984. a. December 27, 1982: Special meeting regarding the budget. b. February 28, 1983: Special meeting regarding the lowering of the tax milleage. c. June 15, 1983: Special meeting regarding erection of a Borough building. d. August 15, 1983: Special meeting regarding the borough building. e. September 20, 1983: Special meeting regarding the borough building. f. October 19, 1983: Special meeting regarding the borough building. g. January 31, 1984: Special meeting regarding the borough building. h. February 22, 1984: Special meeting regarding signing of contract for borough building. Firemen and Water Authority representatives to be present. i. April 17, 1984: Special meeting to discuss the addition to the fire hall. Lovie Havens Page 5 i. June 13, 1984: Special meeting to discuss building. Not enough members present to hold a meeting. k. June 18, 1984: Special meeting to discuss the addition to the fire hall. 1. Special meeting to discuss the building and addition. m. October 15, 1984: Special meeting to pass the budget. o. January 14, 1985: Special meeting regarding the addition to the fire hall. Reorganizational meeting held on January 17, 1985. Jamie Sternesky is appointed Secretary. 5. The Wallaceton Borough minute book reflects that the bills to be paid were listed after the meeting each month. The payments to you were never listed or included with the other bill except as set forth below: a. The bills of November 7, 1983 reflect the only time a $100 payment was made to you for special meetings. b. You paid yourself $100 for each special meeting from December, 1982 through January, 1985, with the exception of the following: December 1982 - $75 March 14, 1983 - $25 November 23, 19,84 - $25 April 5, 1982 - $60 (Lula Shimmel) c. Bills reflect a payment of $100 for an extra meeting. This is written above "$100 for Secretary" which was crossed out. 6. Minutes of the Wallaceton Borough Council meetings show the following action taken in regard to the payments of $100 to you for special meetings. a. March 4, 1985: Lovie Havens Page 6 (1) Mary Lou English asked about the wages for the former Secretary. The checkbooks showed that the former secretary was taking $100 for special meetings which shouldn't have been taken out. Phil Dixon suggested contacting the Borough Solicitor. b. March 18, 1985: Special meeting to discuss the previous secretary's wages. (1) Phil Quick and Harold Williams stated Council should take no action. (2) Phil Dixon stated Council should take action over this matter. Mary Lou English stated Council should take action over this matter. (3) The final outcome was to write the previous secretary, Lovie Havens, a letter requesting her presence at the April 1, 1985 regularly scheduled meeting. (a) The following items were included in the letter to be returned to the Borough; Borough tapes, tape recorder, brief case, and other items which may belong to the Borough, which she still has in her possession. 1. You state that a few items were stored in your house but all items went to the Borough except for the tapes which you personally handed to Phil Dixon in a box containing about 50 tapes with two in your hand as to January, 1982. c. April 1, 1985: (1) Lovie Havens, the former secretary of the Wallaceton Borough Council was present, and also Roy Havens representing Lula Shimmel. (2) Phil Dixon addressed Havens regarding the payments of special meetings to herself and why these payments were not recorded in the minutes along with the other bills. (3) Havens explained that a lot of times she would take the bills and checkbooks to work with her and pay the bills and a lot of times she stated she did not have the minutes book with her. She also stated she got some bills in the middle of the month that she paid that were not put in the book. She stated you could call it Lovie Havens Page 7 human error, but there are several bills not in the minute book. (4) Phil Dixon discussed the minutes of January, which it stated the Secretary and Council should receive full pay for each special attended. recorded 1982, in members meeting Havens stated she had absolutely nothing to do with the January, 1982 meeting minutes. Roy Havens presented a letter written from Lula Shimmel stating she wrote the minutes for the January, 1982 meeting. Phil Dixon stated that he did not make the motion and does not believe that any other council member made that motion. Dixon.stated that the back minutes were not read from March in the minute book. (a). You assert that the January minutes were read in March because none were taken in February due to your mother's illness but the minutes were passed as read. Havens disagreed and said they were. Mary Lou English pointed out that Lula Shimmel never took any money for special meeting. Motion to have someone look over the books. Phillip Dixon seconded the motion. Secretary to call Camille George and explain the situation with the additional payments of the former secretary and ask if he has any information on who we could have look over the matter. d. May 6, 1985: (1) Attorney Gearhart discussed the wages of the former secretary. He pointed out the criminal and civil aspects of this matter. Phillip Dixon asked what we should do about the situation. Gearhart feels there is reason to take criminal charges. (a). You, however, advise that you, your mother and husband met with Mr. Gearhart concerning the allegation that the minutes were allegedly altered so that everyone could receive full pay for each Lovie Havens Page 8 special meeting. You stated that your mother said that a motion carried to compensate each member for special meetings, and that Phil Dixon agreed that it included the secretary after your mother inquired. You indicate that Mr. Gearhart was of the opinion that there was no wrongdoing but suggested that you offer a donation of $800 to council to which you agreed so as to put the matter to rest. (2) Dottie Miller made a motion to have the bonding company contacted regarding the collection of the additional secretaries fees. Mary Lou English seconded the motion. Four in favor, one no opinion. (3) Gearhart suggested taking this matter to the District Attorney and also having a handwriting analysis done by the State Police. Dottie Miller made a motion regarding Gearhart's suggestion. English seconded the motion. Four in favor, one no opinion. e. June 3, 1985: (1) In regard to the former secretary, Gearhart contacted Phil Dixon and stated that the Havens had made an offer to make an $800 donation to the building fund and Dixon stated they also feel Wallaceton Borough should write a letter to Lula Shimmel thanking her for her years of service to the borough. (a). You state that you did not want to give the money because you are not guilty of anything but merely did so to lay the matter to rest. (2) Dottie Miller made a motion to turn the minute book back over to Gearhart to have a handwriting analysis done. English seconded the motion. Three in favor, two oppose. Motion passed. f. September 4, 1985: (1) Regarding the previous secretary, Phil Dixon feels we should contact the State Ethics Commission and see if they have ideas as to what to do about this matter. Also discussed was the fact that she offered to pay the building fund $800 as a donation. (a). You reiterate that you merely offered the money to lay the matter to rest. Lovie Havens Page 9 g- Phil Quick feels we should accept the offer. (2) Dottie Miller made a motion to contact the State, Ethics Commission. English seconded the motion. Miller will also contact Captain Raible and discuss the situation with him and show him the minute book. October 7, 1985: (1) Dottie Miller stated she had not had an appointment with Captain Raible because she did not have the minute book but will schedule an appointment. h. March 3, 1986: (1) Discussed the State Ethics Commission papers complaint form for Lovie Havens. (2) Dottie Miller makes a motion to fill out the papers and send them in. 7. Minutes of the Wallaceton Borough Council meetings show that during the September 10, 1984 meeting, the Secretary was instructed to deposit $500 into the General fund from the Savings account due to low funds and numerous bills in the General fund. 8. Records of Wallaceton Borough indicate that you were paid $100 per month as Secretary, and an additional $25 per month rent for keeping the borough records in your home. You were also paid for expenses incurred such as supplies, stamps and telephone bills. 9. Records of the borough checks and check stubs show the following $100 payments made to yourself, for special meetings from 1982 through 1984. Date Check No. Amount 4/5/82 175 $ 60.00 12/82 1269 75.00 2/17/83 1296 100.00 3/14/83 1313 100.00 6/13/83 1344 100.00 7/18/83 1346 100.00 8/19/83 343 100.00 8/22/83 1367 100.00 9/19/83 349 100.00 10/13/83 1389 100.00 11/23/83 356 25.00 12/22/83 1422 100.00 1/31/84 1435 100.00 Reason Lula Shimmel -Extra Mtg. Extra Meeting Special Meeting Extra Meeting Special Meeting Spec. Mtg., Sec. Work Special Meeting Sec. Special Meeting Special Meeting Mtg., not enough to vote Special Meeting Special Meeting 2/15/84 4/20/84 6/13/84 8/22/84 10/5/84 12/24/84 Lovie Havens Page 10 1447 100.00 1481 100.00 1506 100.00 1546 100.00 1572 100.00 1601 100.00 $1,760.00 10. Records of the Borough checks and check stubs show the following payments made to you for salary, rent, supplies and special meetings. 1982 Salary Jan. 1/5 1122 $97.80 Feb. 2/? 309 $100 Mar. 3/5 1149 $10 Apr. 4/5 1166 $100 May 5/4 1170 $100 June 6/8 1183 $100 Jul. 7/13 1197 $100 Aug. 8/10 316 $125 Sep. 9/8 1215 $100 Oct. 10/5 Rent 1/4 1119 $25 2.8 308 $25 3/5 1150 $25 4/5 176 $25 5/4 1171 $25 6/7 1180 $25 7/13 183 $25 *See chk 316 9/8 1216 $25 10/5 Supplies 1/5 1123 $15 2/8 1132 $10 4/5 1164 $8 7/13 184 $9.76 ONO Feb. Special Meeting Sec. Work Sp. April Special Meeting Sec. Dec. Meeting Special Meeting Special Meeting 4/5 175 $60 OW 8/17 1203 $75 1983 1229 1231 $25 $25 Nov. 11/2 11/2 11/2 - 1238 1242 1247 $100 $25 $20.67 Dec. 12/7 12/7 - 12/23 1259 1260 1269 $100 $25 $75 Jan. 1/3 1/3 1/29 1/5 - 1237 1274 1282 1279 $100 $25 $15 $25 Feb. 2/8 2/8 - 2/17 1289 1285 1296 $100 $25 $100 Mar. 3/8 3/1 3/14 1304 199 1313 $100 $25 $25 Apr. 4/5 4/2 4/5 - 1315 328 1321 $100 $25 $15 May 5/3 5/3 5/3 1326 201 203 $100 $25 $20 Jun. 6/7 6/7 - 6/13 1335 205 1344 $100 $25 $100 Jul. 7/20 7/18 7/18 7/18 1345 1347 1348 1346 $100 $25 $8.50 $100 Aug. 8/9 8/9 8/22 - 8/22 8/19 1358 1359 344 1367 343 $100 $25 $25 $100 $100 Sep. Lovie Havens Page 11 9/17 9/19 1372 349 $25 $100 Oct. 10/4 10/5 - 10/18 1381 1387 1389 1984 Lovie Havens Page 12 $100 $25 $100 Nov. 11/7 11/17 - - 219 1397 $100 $25 Dec. 12/5 12/30 1 /10 12/24 12/22 1405 1423 1425 223 422 $100 $100 $25 $25 $100 Jan. 1/12 1/10 1 /10 1/12 1/18 1 /10 1/31 1307 1425 1426 1434 229 227 1435 $100 $25 $10 $25 $50 $20 $100 Feb. 2/7 2/2 2/1 - 2/15 2/29 1437 1436 352 1447 230 $100 $25 $25 $100 $100 Mar. 3/23 3/8 3/30 3/8 3/16 - 1452 1450 1453 1465 1451 $100 $25 $25 $25 $15 Apr. 4/6 - 4/21 4/23 4/20 1480 1482 357 1481 $100 $25 $20 $100 May 5/17 5/8 - - 1492 1483 $100 $25 Jun. 6/13 6/13 6/5 6/13 1507 1508 1504 1506 $100 $25 $20 $100 Jul. 7/14 7/12 1520 1519 $100 $25 Aug. 8/9 8/9 8/8 8/22 1541 1541 1539 1546 $100 $25 $25 $100 Sep. 9/24 9/10 1565 1559 $100 $25.00 Oct. 10/5 10/9 10/5 - 10/5 10/18 1229 1573 1231 1572 1574 $100 $25 $25 $100 $100 Lovio Havens Page 13 Nov. 11/6 1583 $100 Dec. 12/3 1594 $100 1985 Jan. 1/8 1308 $100 11/17 11/5 1585 365 $25 $25 12/3 1587 $15 1 /10 382 $25 Total receipts Total expenditures Cash Balance (12/31/82) Securities and Investments held 11/5 253 $20 12/24 1602 $25 COM 11/23 356 $25 12/18 1600 $25 11. The W -2 wage and tax statements on file at the borough for the years 1982, 1983 and 1984, show no statement for you. 12. The 1982 annual audit and financial report for Wallaceton Borough shows the following revenues and expenditures: $22,003.32 16,361.99 3,141.33 2,500.00 22,003.32 12/24 1601 $100 13. The Wallaceton Borough Council meeting minutes of December 5, 1983 reflect the annual 1984 budget to be $16,000.00. a. The budget was formally adopted at the December 20, 1983 meeting. 14. Wallaceton Borough Council member Philip Dixon provided the following information in relation to the vote on January 2, 1982 regarding the secretary salary. a. Neither he nor anyone b. He referred to the writing and indicated meeting were altered. else made the motion as it reads. eraser marks and the pen to pencil that the minutes of the January 1982 c. He vaguely recalls joking around about the Secretary getting paid for special meetings but he is sure about the fact that there was never a formal motion made for the Lovie Havens Page 14 secretary to get paid for special meetings. d. There was a motion made to pay council full pay for attending meetings, but he is not sure if it was made at this meeting or at some other meeting. e. The minutes of the January meeting were never approved, because there was no Secretary at the February meeting. f. Havens often called him and said that there was a special paper that needed council's attention, and they had better call a special meeting. Council did not keep track of the bills, and he signed blank checks for Havens to pay the bills. He assumed this is why council was never aware of the payments. h. Council approved the bills after the Secretary had read them from the minute book. Council did not usually question the bills unless it was something really unusual. i. Payments to council members for meetings, were not usually read with the bills. j• You disagree with the above statements of Phil Dixon. You assert that Phil Dixon made the motion for full pay at special meetings which was voted and passed. You disagree that the minutes which were in your mother's handwriting were altered. Further, you indicate that the minutes were read and approved in a March meeting. As to signing blank checks, you state that was a common practice done at Council President's request. k. Mr. Phillip Dixon testified as follows: (1) He has served on Wallaceton Borough Council for 12 to 15 years. (2) In a January, 1982 meeting, there was a motion to pay members of Council $20 for special meetings but there was no intention for the secretary to receive additional pay for special meetings. (3) The January 1982 minutes were not approved by council a. Then secretary Lula Shimmel was not at the February meeting. b. Approval of the January minutes was probably forgotten at the March, 1982 meeting. (4) Bills were normally read for the month, the secretary Lovie Havens Page 15 wrote the checks and the secretary and he had signature authority for checks. (5) It was a common practice to sign blank checks to anticipate payment of bills that would come up. (6) Wallaceton did not have a large tax base and the secretary was paid $100 per month in 1982. (7) When the issue of special meeting pay for the secretary arose, you called him and advised that you would return the tapes and recorder to him. He opposed receiving them and wanted you to deliver them to council. You delivered a box of six to eight tapes to him. (8) The motion at the January, 1982 meeting did not include an increase in pay for the secretary. (9) At the January, 1982 meeting, there may have been some joking about the secretary being paid for special meetings but there was not a formal motion about it. (10) He was positive that the motion for special meeting pay did not include the secretary. 15. Wallaceton Borough Council member Mary Lou English provided the following information in relation to the vote on January 2, 1982 regarding the secretary salary. a. She found out about the payments to .Havens for special meetings when the new Secretary was trying to balance the books. She helped Sternesky with the books. b. Lula Shimmel was very sick at the beginning of 1982. c. Havens had been helping her mother with the books, and it made sense to appoint Havens as Secretary when her mother resigned. d. The motion, at the January 1982 meeting, was for council to receive full pay, not for the Secretary. (1) You disagree and assert that your mother asked if the motion included the secretary to which Phil Dixon said yes as was witnessed by Harold Williams. e. Council never bothered to review the minutes or the bills. f. In regard to the one time that Havens had recorded the $100 for a special meeting, she thought it might have been Havens Lovie Havens Page 16 regular pay or that it was added after the fact. g. Havens offered to make a donation to the Borough in the amount of $800 as a settlement. h. This was only half of the amount that Council thought Havens had taken for Special meetings. i. She thought it was possible that during the confusion of the meeting, that Shimmel had misunderstood the motion. (1). You disagree and assert there was no misunderstanding. j. Anyone would know that a Borough the size of Wallaceton could not afford $100 for every special meeting. k. Ms. Mary Lou English gave the following testimony: (1) She has served as a member of Council for eight years. (2) The January, 1982 motion for special meeting pay did not include the secretary. (3) Council would not have considered paying the secretary $100 for special meetings because she really did not have much more to do. (4) The minutes of the January, 1982 meeting were not approved in February because the then secretary was sick; those minutes were never approved to her knowledge. (5) She realized that you were being paid more than once a month when she and. the current secretary, Jamie Sternesky, tried to balance the checkbook. 16. Wallaceton Borough Council member Nancy Hall Evcic provided the following information in relation to the vote on January 2, 1982 regarding the secretary salary. a. Due to the death of her husband on December 26, 1981, she doubted that she had attended the January meeting of council. b. She did not recall the motion being made to pay council for special meetings. c. The motion as written does not make sense to her at all. d. Shimmel was a family and Church oriented person who would Lovie Havens Page 17 never do something like this. e. She did not ever recall Havens attending a council meeting. (1). You advise that you attended several meetings because you provided transportation for your mother. f. Shimmel always wrote the minutes on scratch paper and then later wrote them in the minute book. 17. Wallaceton Borough Council member Dorothy Miller provided the following information in relation to the vote on January 2, 1982 regarding the secretary salary. a. She is sure that she was not at the January, 1982 meeting. b. The December, 1982 minutes also record her as being present however, this was not possible since she was in the hospital at the time. c. She became aware of the payments when she and English were going through the minute books to get things ready for the new Secretary. They discovered the January, 1982 meeting at the same time, which had been written in different color inks and pencil. d. Havens offered to make an $800 donation to the Borough, at the meeting between council and Havens. e. The offer was like an admittance of guilt, and an attempt to keep it quiet. (1). You deny any quilt and assert you made the offer on the advice of Denning Gearhart. f. Tapes were made of all the meetings, so there could have been no mistake in regard to the motion. (1). You agree and add that Phil Dixon was given the tapes at his request. 18. Wallaceton Borough Council member Harold Williams provided the following information in relation to the vote on January 2, 1982 regarding the secretary salary. a. He did not recall the motion and vote taken in January, 1982 regarding the full pay to council and secretary. (1). In a sworn statement of December 22, 1988, Williams states that a motion was made for all members to Lovie Havens Page 18 receive compensation for special meetings and he seconded the motion. Williams also indicates that your mother asked if the compensation included herself and Phil Dixon said yes. b. That the integrity of Shimmel and Havens is above reproach. c. His first knowledge of the situation was after the new Secretary started in 1985. d. He never reviewed the bills or invoices, and doesn't think anyone else did either. e. Havens was appointed as Secretary to help her mother out with her income. It was away of keeping it in the family. 19. Borough Mayor Tom Dixon provided the following information regarding this situation. a. He recalled the motion to pay council members for attending special meetings, but it was not made the way it is recorded in the minute book. (1). You disagree that the minutes were changed. b. When Havens was questioned by the new Secretary about the payments, she went right to the January 1982 meeting to show that the payments were authorized. c. He was as surprised as everyone else when the new secretary brought this to council. d. President Phil Dixon would pre -sign checks for Havens which made it easy for her to write her own checks. (1). You disagree that most bills were paid by pre - signed checks. e. The borough did not have any real problems with money, maybe some of the really large bills might have to wait a month or two, but not the small amounts. f. If Havens had to wait a week or two to pay herself, the bills should have been listed in the minute book. g. Havens was paid for helping to audit her own books, when the auditor needed help figuring them out. Lovie Havens Page 19 h. If the January, 1982 motion regarding pay was a mistake that was taken as real, it still looks as though Havens was trying to cover up something. (1). You disagree that you were trying to cover up. i. Mr. Thomas Dixon provided the following testimony: (1) He has served as Mayor of Wallaceton since 1966. (2) He does not vote at Council meetings unless there is a tie vote. (3) (4) $100 for every special meeting for the secretary would be a financial burden for Wallaceton. a. b. c . 21. Lula situation: a. (5) At the January, 1982 meeting, the motion did not include compensation for the secretary for attending special meetings. It is possible that Lula Shimmel joked if she was going to get paid for special meetings but he did not recall that occurring. 20. The Borough Solicitor R. Denning Gearhart provided the following information in relation to the instant situation: He became aware of the situation of the payments to Havens from Phil Dixon. He felt Havens was pretty honest, and knew them to be very religious people. The Secretary would have known that the borough was cost conscious. The $100 for each special meeting for the secretary was out of line. (1). You disagree with the above statement. d. He had a meeting with Lovie and Roy Havens. He was probably behind the offer that the Havens made, to donate to the borough. Shimmel provided the following information regarding this Shimmel stated that to her knowledge, she did not mis- record or misunderstand the motion as it was made at the January, 1982 meeting. Lovie Havens Page 20 b. Shimmel stated that she did have blackouts while in 1981 and 1982, but did not have memory lapses c. Dixon told Shimmel to take the special meeting Havens. He whispered this in her ear, so that could hear. d. In January or February, 1985, Dixon told Havens that he did remember the January 1982 motion, and talking about raises. He later said he didn't recall the motion at all. e. In regard to the pen /pencil /pen recording of the January, 1982 meeting, Shimmel stated that maybe her pen ran out of ink. f. She agreed that the minutes were all written in her hand. g. Shimmel did not recall why the minutes were erased, or why they were recorded as they are. h. Shimmel stated that any council member whose name was recorded in the January 1982 meeting was present. i. Shimmel stated that it was her practice to record all the bills in the minute book. 22. Ms. Penny Havens testified as follows: a. She, your daughter, accompanied you to Phil Dixon's home with a box containing 70 to 80 tapes, a tape recorder and calculator. b. Phil Dixon was upset that you were there; you asked him to play two tapes with Lula Shimmel's writing - January, 1982 - written on them. c. The tapes were taken by Phil Dixon who demanded that you leave. d. Phil Dixon told you that he did not want you to come to his home. 23. Mary Albert provided the following testimony: a. She is a special investigator for the State Ethics Commission assigned to investigate the allegations in this case. b. Mr. Williams was interviewed. she was ill pay off for no one else Lovie Havens Page 21 1. He stated he did not recall the motion as it was made. 2. After being shown a copy of the motion as recorded, he was not sure that it was correct as recorded. c. You indicated that $100 per special meeting was a little out of line for the annual budget of Wallaceton. d. You felt it was wrong not to record the $100 special meeting pay for yourself in the bills with the minutes but you could not always write a check because the general fund was low and you would have to wait a couple of weeks. e. There was not any meeting that you did not attend for which you received $100. f. There are several instances of erasures and writing with different colored ink pens or pencils at the January, 1982 and other meetings. 24. You provided the following information in relation to this situation: a. You were Wallaceton Borough Secretary from March 1982 until January 1985. b. Your mother, Lula Shimmel, had been the Borough Secretary for 15 years prior to that time. c. Shimmel was having health problems that began in the fall of 1981. d. For this reason, you attended the January, 1982, meeting with her. Shimmel took the minutes at this meeting. e. Shimmel was admitted to the hospital in State College on January 22, 1982, and the next day had a pace maker installed. She had a very low pulse which was causing lack of oxygen. f. After you were appointed Secretary, Shimmel attended several meetings to help you. g. Neither you nor Shimmel attended the February council meeting, due to Shimmel's health. Shimmel continued to have health problems. h. You were coaxed by council to take over as secretary until they could find someone else. You did not want the secretary's position at the beginning of 1983, but Tom Dixon Lovie Havens Page 22 talked to you about taking the position. i. At the January 1982 meeting, Shimmel took the minutes and you sat in the back. j. At the January, 1982 meeting, Phil Dixon had made a motion to pay all council full pay for attending meetings. (1) Shimmel had asked if that included the Secretary, and someone said yes, because she has to do paperwork after the meeting. (2) Shimmel had clarified "full amount" at the January 1982 meeting, and it was approved. (3) Dixon wanted more money to come to special meetings. (4) The Secretary was getting $100 per month. You agreed that $100 for each special meeting attended by the secretary was a lot of money for a borough like Wallaceton. k. You did not recall why the minutes for that meeting were erased. 1. You stated that you were wrong for not recording your special meeting payments in the minute book along with the other bills. m. You would take the list of bills, and write the checks from that, and then record them in the minutes all at the same time. n. You would take your payments for meetings around the time of the meeting, or after, if they were short of money. o. You stated that the State Auditors approved your books. p. You would take money out of the state fund and deposit it into the general fund when it ran low. You would replenish the State fund from the general fund when it was possible to do so. q. You recalled a special meeting for the budget, when the Water Authority and Firemen were present. Phil Dixon had asked for an itemized list of pay for all council and anyone else the borough paid. r. You gave the list to Dixon, which included the special meeting pays. Dixon told Shimmel to take the special Lovie Havens Page 23 meeting pays off for Havens. s. Dixon would pre -sign checks for you, in case any bills came up between meetings. t. You were told by the Solicitor that he saw nothing wrong with your books, and that the State Police had done a handwriting analysis on the minute book, and could make no case out of this. u. You stated that there were tapes of the meetings, including the January, 1982 meeting. (1) You took a box of tapes over to Dixon's house, after you had received a letter from Council requesting your presence at the next meeting. (2) You had not had a chance to listen to the tapes and did not know what was on them. There were two tapes marked January 1982. (3) You asked Dixon to use his tape recorder to listen to the tapes, he refused. He also refused to let you take the tapes back to listen to. v. You testified as follows: (1) You were secretary /treasurer of Wallaceton from June, 1982 to December, 1984. (2) Nineteen payments were made to you for special meetings. (3) At the January, 1982 meeting, Phil Dixon was upset about the number of special meetings without pay and asked if council could be paid for each special meeting. (4) Every meeting was taped beginning in 1979 and 1980. (5) You took a box of 70 to 80 tapes to Phil Dixon's home at the end of March, 1985. (6) You did not want the job of secretary but your mother became ill and council asked you to take the job until they could find someone for the position. The minutes accurately reflect what transpired at the January, 1982 meeting and you did not alter them. (7) Lovie Havens Page 24 You did not authorize any additional payments other than what was permitted. As to the motion for the January, 1982 meeting, your mother asked if the special meeting pay included the secretary and Phil Dixon said yes. Harold Williams seconded the motion and the motion passed. 25. Along with a letter dated September 27, 1988, you submitted a paper listing events that occurred after council started questioning the special meeting payments that you received. a. January 1982: Phil Dixon made each councilman special meeting that time. motion and Harold Williams second it, that and Secretary receive full pay, for each attended. Lula Shimmel was secretary at b. March, 1985: You received a call from the new borough secretary, stating that Phil Dixon requested you to be present at the next council meeting regarding the minutes and check book. c. You then tried to call Phil Dixon on the phone the same night and he refused to talk to you. He finally consented to let you come over to his house. While at this house, he treated you abusively, and ordered you out of his house, and denied making any motion concerning special meeting pay for the secretary. d. Due to illness, Secretary Lula Shimmel, was not present at the February meeting. The January minutes were read at the March meeting by Lula Shimmel. The minutes were approved at this time. e. April, 1985: Roy Havens represented Lula Shimmel at the meeting with council. Shimmel could not attend due to her health. She did supply a letter stating that the motion made at the January, 1982 meeting was true. f. Dixon stated that he did not make the motion. Williams recalled seconding the motion, but did not recall the words of the motion. Lovie Havens Page 25 g. Dixon questioned Havens as to why some of the special meeting pays were not in the minute book. You stated that there is no doubt that there are other bills not recorded in the minute book also. You would pay bills in the middle of the month and then pay some of them that you did not get in the minute book (a human error). When you would write out the checks, you did not have the minute book right there and sometimes you would forget to write them down. h. You noted that all the bills are in the ledger and there have been State and local audits of the records and minute book, and a public audit hung in the window of the local store. B. Discussion: As the Secretary /Treasurer of Wallaceton Borough, you were a public employee as that term is defined under the Ethics Act; 65 P.S. S402; 51 Pa. Code 1.1. As such, your conduct is subject to the provisions of the State Ethics Act and the restrictions therein are applicable to you. Under Section 3(a) quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 4112 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. In the instant matter, the question to be resolved is whether you violated Section 3(a) of the Ethics Act by receiving more compensation than was authorized for your position by Borough Council. The minutes of Borough Council reflect that the salary for the Secretary was raised to $100 per month on January 5, 1981. The January 2, 1982 minutes would appear to authorize an increase in the compensation of Secretary to "... full pay for each meeting attended ..., However, the testimony of all of the various witnesses, some of which is contradictory, raises questions as to whether the Council did authorize payments of $100 to the secretary for each special Lovie Havens Page 26 meeting. Under these circumstance, a review of that testimony is warranted. With the exception of Harold Williams, the testimony of Councilmembers Phil Dixon and Mary Lou English and Mayor Tom Dixon is unequivocal that the motion at the January, 1982 meeting did not include additional compensation of $100 to the secretary for each special meeting. As to Harold Williams, although he now states that the motion included the secretary, such statement is contrary to his earlier statement given to the investigator and we therefore limit the probative effect as to all of his statements. This does not appear to be a case where you intended to violate the Ethics Act by taking the $100 for each special meeting pay. Of course, intent is not a requisite element for establishing a violation of the Ethics Act. See Yocabet v State Ethics Act, supra. In any event, even if you took the pay based upon your misunderstanding as to the January,1 982 motion, the situation exists, based upon the testimony and statements of the members of Council that the secretary was not, authorized to receive $100 for special meeting pay. In this regard, we note that the witnesses were consistent in their testimony that there was no intention to include the secretary because of the small size and limited budget of Wallaceton Borough. Therefore, since the $100 special meeting pay for the secretary was unauthorized, your receipt of these payments was compensation other than provided by law. In light of the above, this Commission finds that there was no authorization in the January, 1982 council meeting for special meeting pay for the Secretary. Thus, the salary for the Secretary during your service from June, 1982, until January, 1985 was $100 per month. Any amounts received for special meetings for the period of service would not be authorized in law. Records of the Borough reflect that you received payments, between June, 1982 and January, 1985, in the amount of $1,700.00 for special meetings. This Commission has the power to order the restitution of any unauthorized gain. McCutcheon v. State Ethics Commission; Yocabet v. State Ethics Commission, supra. In addition, this Commission has the authority to direct the payment of a penalty when a public official /employee violates this provisions of the Ethics Act 65 P.S. 409(c). You are hereby ordered to forward a check to the State Ethics Commission, within thirty days of the date of this Order, in the amount of $1,700.00 payable to the order of Wallaceton Borough. Failure to comply will result in the referral of this matter to the appropriate law enforcement authority. C. Conclusion and Orders 1. As Secretary /Treasurer of Wallaceton Borough, you were a public employee subject to the provisions of the Ethics Act. Lovie Havens Page 27 2. You violated Section 3(a) of the Ethics Act when you received $1,700.00 for special meetings which was a financial gain other than compensation provided by law. 3. You are hereby ordered to forward a check in the amount of $1,700.00 within thirty days of the date of this Order to the State Ethics Commission payable to the Order of Wallaceton Borough. 4. If you comply with the provisions of paragraph 3, you will have removed yourself from the gain and no further action will be taken. 5. Failure to comply with the provisions of paragraph 3 will result in the referral of this matter to the appropriate law enforcement authority. Our files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will be made available as a public document 5 business days after service (defined as mailing). Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). The confidentiality provision does not restrict respondents consultation with legal counsel. By the Commissio lena G. Hughe 'Chair G. Sieber Pancoast did not participate in this matter. Paul J. Malizia 25 E. 4th Street P.O. Box 111 Emporium, PA 15834 Res Lovie Havens 86 -086 -C Dear Mr. Malizias VJD /slur "Motion denied" STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 June 8, 1989 In the hearing on the above captioned matter, you made a motion to dismiss after the Investigative Division presented its case. Please be advised that your motion was presented to the full Commission when it deliberated upon this matter on June 1, 1989. The Commission took the following action: Very truly yours, „),,Amitf.) Vincent J. Dopko General Counsel