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HomeMy WebLinkAbout1161 ShafferIn Re: Gary P. Shaffer File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Louis W. Fryman, Vice Chair Julius Uehlein Frank M. Brown Susan Mosites Bicket 99- 038 -C2 Order No. 1161 06/20/00 07/07/00 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation as to the above -named Respondent regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., which inter alia provides for the completion of pending matters under that Act. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed. Respondent requested a non - confidential hearing which was held on April 27, 2000. The record is complete. 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. Shaffer, 99- 038 -C2 Page 2 I. ALLEGATION: That Gary Shaffer, a public employee in his capacity as a County Service Forester for Crawford County, Pennsylvania Department of Conservation and Natural Resources, violated Section 3(a) of the State Ethics Act (Act 93 of 1998) when he used the authority of his office for the private pecuniary benefit of his immediate family when he recommended his son's forestry service to individuals applying to participate in the County Forest Stewardship Program. II. FINDINGS: A. Pleadings 1 The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Gary Shaffer violated provisions of the State Ethics Act (Act 9 of 1989). 2. Upon review of the complaint the Investigative Division initiated a preliminary inquiry on May 18, 1999. 3. The preliminary inquiry was completed within sixty days. 4. On July 15, 1999, a letter was forwarded to Gary Shaffer, by the Executive Director of the State Ethics Commission informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, no. Z 377 194 632. b. The domestic return receipt bore the signature of Gary P. Shaffer, with a delivery date of July 17, 1999. 5. Periodic notice letters were forwarded to Gary Shaffer in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 6. The Investigative Complaint was mailed to the Respondent on January 10, 2000. 7 Gary P. Shaffer was employed as the Crawford County Service Forester for the Department of Conservation and Natural Resources, Bureau of Forestry, from May 25, 1988, to May 27, 1999. a. Shaffer has been employed with the Department of Conservation and Natural Resources, Bureau of Forestry, for approximately 30 years. 8. Shaffer's job description as Crawford County Service Forester was to work with private landowners and cooperating agencies in Crawford County to enhance forestland productivity and usefulness and to support other Bureau of Forestry programs and activities as requested and required, including the following areas: a. Providing forestry assistance to private woodland owners within the guidelines of the forest stewardship program. Shaffer's key activities under the forest stewardship plan are: (1) Receive, record, and respond to requests for stewardship assistance from private, non - industrial woodland owners. Shaffer, 99-038-C2 Page 3 (2) Conduct necessary reconnaissance and field work to ensure stewardship plan development by appropriate resource professionals. Maintain an understanding of all rules, policies, and procedures relating to the Pennsylvania stewardship program. (4) Prepare, submit, and file all necessary documents, reports, and forms to appropriate agency offices for record keeping and accounting purposes. (3) (5) Maintain and properly use all assigned equipment, tools, manuals, reference materials, and supplies. b. Providing forestry assistance to private woodland owners within the guidelines of the Cooperative Forest Management Program. c. Cooperating with various organizations and groups in initiating and conducting programs and activities which enhance sound forestland management within the district. d. Assisting in fire protection activities. e. Maintaining a knowledge of policies, rules, and procedures regarding the management of state forestlands. f. Participating in district forest pest management. 9. A forest stewardship program was started in Pennsylvania in 1992 pursuant to the passage of the Forest Stewardship Act of 1990 (FSA). a. This is federal legislation establishing the program defining goals, definitions of the program and eligibility of landowners. b. The act also defines implementation of the program by states. c. The forest stewardship program is designed to educate and provide technical assistance to private landowners in forestland management. 10. Section 6 of the FSA of 1990 established the Stewardship Incentive Program and provides for landowners' eligibility for cost - sharing assistance under the program. a. This program is administered by the states. b. The DCNR, Bureau of Forestry of the Commonwealth of Pennsylvania, administers the forest stewardship program. 11. Landowners can apply for and receive cost sharing for their forest stewardship plans from the Commonwealth of Pennsylvania. a. The amount of cost sharing is determined by the number of acres enrolled. b. Typically, consulting foresters charge the landowner the amount not covered by the cost sharing funds. c. Cost sharing paid by the Commonwealth is made through the Pennsylvania Association of Conservation Districts (PACD). Shaffer, 99- 038 -C2 Page 4 d. PACD can make payments for stewardship plans directly to consulting foresters. 12. Forest stewardship plans can only be authored by certified plan writers. a. Certification consists of a one -day training seminar provided by the State Stewardship Committee. b. Certified plan writers can be compensated for their services. 13. Most certified plan writers are consulting foresters. a. Consulting foresters are private foresters educated in Forest Science. 14. The county service forester is responsible for the following duties regarding the forest stewardship program: a. Meeting with interested landowners and describing the forest stewardship program, including all aspects of the forest ecosystem. b. Providing the landowner with a questionnaire used to determine short -term and long -term goals of the landowner. c. Providing the landowner with a list of approved and qualified plan writers who are interested in authoring forest stewardship plans in their geographic area. d. Reviewing finished plans for compliance. (1) Typically, the county service forester is the only person to review finished plans for compliance. e. Approving and signing finished plans for the authorization of eligibility for cost share funds. (1) Typically, the county service forester is the only person to sign the finished plans for authorization. 15. Shaffer, as Crawford County Service Forester, performed the duties delineated in Finding No. 14 including approving plans for cost share funds being paid to landowners or certified plan writers. a. Once Shaffer reviewed and approved a stewardship plan, the applicant was eligible to receive the cost share grant funds. 16. The only requirement to submit an application for participation in the forest stewardship program is having at least five acres of land. a. Participation eligibility depends on the submission and approval of a stewardship plan. 17. The county service forester has no authority to deny a landowner enrollment in the forest stewardship program if submitted plan met all program requirements. a. The county service forester does have discretion to determine if the plan meets program requirements. Shaffer, 99-038-C2 Page 5 18. The Service Forester's Handbook provides guidance and direction to Foresters. a. The handbook provides direction related to the administration of the forest stewardship program. b. The handbook is distributed by the Bureau of Forestry to county service foresters. c. The handbook is to be used as a guide by county foresters in the administration of the forest stewardship program. d. As a county service forester, Gary Shaffer was provided a copy of the handbook. 19. The Service Forester's Handbook provides, in part, the following regarding the service forester's actions in regard to the stewardship program. a. Service foresters should provide an information packet to landowners which includes "a complete 'Register of Consulting and Industrial Foresters. "' b. Service foresters should "avoid becoming a 'free' employe of the consulting forester, or any appearance of favoritism." 20. The handbook further provides that the county foresters are not to recommend consulting foresters to private landowners for any service where money will be transacted. a. These services include forest stewardship plans, timber sales, and grapevine control. b. The county service forester should provide a list of qualified foresters to the landowner interested in these services. 21. Matthew P. Shaffer is Gary Shaffer's son. a. Matthew Shaffer graduated from Pennsylvania State University in May 1997 with a Bachelor's Degree in Forest Science. b. Matthew Shaffer began doing forestry work while in high school. c. Matthew Shaffer did forestry work while in college and on summer breaks. d. Matthew Shaffer primarily did tree planting and grapevine cutting while attending college. 22. Matthew Shaffer resides with Gary Shaffer at 21663 U.S. Highway 86, Cambridge Springs, PA 16433. 23. Matthew Shaffer is the owner and sole proprietor of Shaffer Forestry Services. a. Matthew Shaffer began Shaffer Forestry Services part time in the summer of 1997. b. Matthew Shaffer began Shaffer Forestry Services full time at the end of the summer of 1997. Shaffer, 99- 038 -C2 Page 6 24. Matthew Shaffer's business address for Shaffer Forestry Services is Gary Shaffer's residence address. 25. From the summer of 1997 to June 1998, Matthew Shaffer focused Shaffer Forestry Services primarily on conducting timber sales. 26. Matthew Shaffer became certified to author forest stewardship plans in June 1998 and expanded his business to include those services. a. Matthew Shaffer was paid for his first stewardship plan on August 20, 1998. 27. Gary Shaffer has assisted his son, Matthew Shaffer, in establishing his businesses authorizing forest stewardship plans. a. Gary Shaffer helped train Matthew Shaffer on how to author forest stewardship plans, including helping Matthew Shaffer mark timber, take stand analysis, and determine forestland prescriptions. b. Shaffer went to properties with Matthew Shaffer in the evenings to help him with the forest stewardship plans. c. Shaffer would help Matthew Shaffer write the forest stewardship plans at the Shaffer home. 28. Gary Shaffer, in his public position as Crawford County Service Forester, helped his son secure landowners to utilize the services of Matthew Shaffer for Forest Stewardship plans. 29. In a Sworn Statement to investigators of the State Ethics Commission on December 17, 1999, Shaffer admitted that he told landowners that his son, Matthew Shaffer, does forestry work. 30. Between July 1998 and April 1999 Gary Shaffer inspected the properties of Richard Cercone and Frank Weaver with Matthew Shaffer prior to the landowners choosing a consulting forester to draft stewardship plans. a. Both Cercone and Weaver ultimately selected Matthew Shaffer as their consulting forester. 31. Shaffer, in his public position as County Service Forester, wrote letters to property owners interested in the forest stewardship program that his son was approved as a consulting forester to author stewardship plans and was available to prepare such plans. a. These letters were written on official Department of Community and Natural Resources stationery. b. This occurred after Matthew Shaffer began his business in 1998. 32. In correspondence to landowner Richard Bowden dated April 29, 1999, Shaffer states, in part: "Matt wishes to provide your plan as compliments of Shaffer Forestry Services..." a. These letters were written on official Department of Conservation and Natural Resources (DCNR) letterhead by Shaffer in his capacity as the Shaffer, 99- 038 -C2 Page 7 Crawford County Service Forester. 33. Shaffer wrote letters to landowner Stanley Plonski on January 26, 1999, and February 29, 1999, regarding the stewardship program. a. In correspondence to landowner Stanley Plonski dated January 26, 1998, Shaffer states, in part: "...I am easiest to contact at my home in the evenings. My home is just south of Cambridge Springs, so I don't have far to go for your property." b. In another correspondence to Plonski dated February 29, 1999, Shaffer states, in part: "Matt and I have finished your stewardship plan...There is no fee from Matt for this plan - he has enjoyed walking your land and looks forward to working with you." c. Both letters were written on official Department of Conservation and Natural Resources (DCNR) letterhead by Shaffer in his capacity as the Crawford County Service Forester. 34. Shaffer made a direct solicitation for Matthew Shaffer in a letter to landowners John Dennis dated January 6, 1999. The letter states, in part: You will need to select a consulting forester to author your plan. The list of approved writers is included. Please make contact with the writer of your choice to see if he can accommodate your plan within the six -month time frame. Many foresters are busy this year with timber sales - so you will need to check this out. The Matt Shaffer on the list is my son - I know that he can fit you in." a. The letter was handwritten on official DCNR letterhead. 35. The Dennises did not contract with Matthew Shaffer for any work because they felt that this solicitation was inappropriate. a. At this time, the Dennises were already utilizing the services of another consulting forester for other forestry work. b. The Dennises used this consulting forester to author their forest stewardship plan. 36. In a Sworn Statement provided to investigators of the State Ethics Commission on December 17, 1999, Shaffer confirmed that the January 6, 1999, letter that he wrote to John Dennis was to utilize the services of his son to author his forest stewardship plan. 37. Landowners Lee Chorazy, David Klein, Stanley Plonski and Richard Harper based their decision to choose Matthew Shaffer to author their forest stewardship plan upon recognizing Matthew Shaffer's name on the list of consulting foresters and associating it with Shaffer. 38. In the sworn statement of December 17, 1999, Gary Shaffer verified that he informed landowners that Matthew Shaffer was available to author their forest stewardship plans. Shaffer, 99-038-C2 Page 8 39. David White owns approximately 30 acres of property in Crawford County which is enrolled in the forest stewardship plan. a. White resides in Palm Bay, Florida. 40. White was not familiar with forestry or consulting foresters in the Crawford County area. a. White contacted Gary Shaffer between July 1998 and December 1998 to obtain information about the forest stewardship plan. 41. Gary Shaffer informed White that his son, Matthew Shaffer, was certified to author forest stewardship plans. 42. White chose Matthew Shaffer to author his forest stewardship plan for the following two reasons: a. Matthew Shaffer did not charge White to author his forest stewardship plan. (1) Matthew Shaffer received payment through PACD on 12/20/98. (a) Shaffer informed White that it would cost him approximately $100.00 to have his forest stewardship plan authored. (b) Shaffer also advised White that Matthew Shaffer could author his forest stewardship plan free of charge. 43. Matthew Shaffer authored 28 out of 41 forest stewardship plans or 68% of the total plans authored in District 14, his father's district, from August 1998 to August 1999. # of plans written by % of plans written Year # of plans written Shaffer by Shaffer 1998 20 12 60 1999 21 16 76 Total: 41 28 68 44. Stewardship plans submitted by property owners are reviewed and approved by county service foresters. a. The plans must be approved by the county service foresters prior to applications for inclusion in the program are approved and cost to the property owner. b. As Crawford County Service Forester, Gary Shaffer has the job responsibility to approve plans submitted for his district. 45. Seventeen plans authored by Matthew Shaffer were approved by Erie County Service Forester Thomas Erdman after being reviewed by Gary Shaffer. a. Erdman agreed to approve Matthew Shaffer's plans after being asked by Shaffer. b. Erdman reviewed all plans for completeness and grammar. c. Erdman did a complete review of the plan, including a site visit, for 50% of plans he reviewed for Matthew Shaffer. Date Check Number Landowner(s) Amount 08/20/98 866 Weaver ($545) Mehalik ($484) $1,029.00 09/24/98 884 Hyndford 225.00 10/24/98 893 Richmond ($557) Morrow ($150) 707.00 11/21/98 906 Klein 404.00 12/20/98 925 Kenny ($509) White ($200) 709.00 01/24/99 938 Williamson 560.00 Shaffer, 99- 038 -C2 Page 9 46. Two plans authored by Matthew Shaffer were approved by Venango County Service Forester Charles Thompson after being reviewed by Gary Shaffer. a. Thompson retired from the Bureau of Forestry in June 1999. 47. Four plans authored by Matthew Shaffer were reviewed and approved by Mark Lewis. a. Lewis replaced Shaffer as the Crawford County Service Forester in June 1999. b. These plans were authored after Shaffer was promoted out of Crawford County. 48. The forest stewardship plans authored by Matthew Shaffer which were reviewed by Gary Shaffer and approved by another county service forester was done to eliminate the 'appearance of a conflict of interest.' 49. This arrangement was agreed to by Gary Shaffer and his supervisor, Donald Wary, District 14 Forester in 1999, after Shaffer advised that his son Matthew would be submitting stewardship plans. 50. Matthew Shaffer is compensated by the Pa. Association of Conservation Districts for preparing forest stewardship plans. a. Matthew Shaffer does not charge property owners an additional fee for preparing plans on their behalf. 51. Matthew Shaffer has received a total of $12,350.00 for authoring forest stewardship plans from August 1998 to August 1999 from PACD. 52. The following payments have been made to Matthew Shaffer by the PACD for authoring forest stewardship plans. Date Check Number Landowner(s) Amount 02/26/99 957 Cercone ($875) More ($443) Mickle ($200) Plonski ($473) Smith ($250) 2,241.00 03/28/99 974 Harper ($605) Chorazy ($360) B.Blystone ($341) 1,306.00 04/25/99 992 Bauer /Wolf ($509) Lelak ($425) Hodge ($180) 1,114.00 05/22/99 1011 Bowden ($250) Blystone ($285) Blystone ($341) 876.00 06/27/99 1028 Rust ($1,095) McNamara ($503) Duparc ($437) 2,035.00 08/01/99 1038 Hammond ($437) Spencer ($707) 1,144.00 Total: $12,350.00 Shaffer, 99- 038 -C2 Page 10 53. Matthew Shaffer had a total income of $68,374.00 from August 1998 to August 1999. 54. The Serbian Orthodox Diocese owns approximately 1,300 acres of property in Springboro, PA, Crawford County. a. This property is known as the Shadeland Camp. 55. In 1993, Consulting Forester David Ester authored a forest stewardship plan for the Shadeland Camp. 56. Sometime between the summer of 1996 and May, 1997, a member of the Serbian Orthodox Church contacted Gary Shaffer to recommend someone to do grapevine cutting. a. Shaffer was contacted in his position of Crawford County Service Foresters. 57. Shaffer recommended his son Matthew Shaffer to the Serbian Orthodox Diocese as someone to do grapevine cutting. 58. Matthew Shaffer was hired based on Gary Shaffer's recommendation. a. Matthew Shaffer was paid $3,476.00 by the Serbian Orthodox Diocese for cutting grapevines. Shaffer, 99- 038 -C2 Page 11 59. In November 1997, the Serbian Orthodox Diocese contacted Gary Shaffer in his official capacity, regarding the possible sale of timber at the Shadeland Camp. a. Shaffer informed the Serbian Orthodox Diocese that trees at the Shadeland Camp were ready to harvest. 60. Gary Shaffer then advised his son Matthew Shaffer to contact the Serbian Orthodox Diocese because the Diocese was interested in conducting a timber sale at the Shadeland Camp. a. Shaffer provided information obtained through his position as the Crawford County Service Forester to Matthew Shaffer. 61. Matthew Shaffer sent a letter expressing interest in conducting a timber sale at the Shadeland Camp to Nicholas Banda, Vice President of the Serbian Orthodox Diocese, along with a Shaffer Forestry Services contract. a. From approximately 1995 or 1996 until February 1999, Banda was the Vice - President of the Serbian Orthodox Diocese. 62. The Serbian Orthodox Church did not contract with Matthew Shaffer to conduct a timber sale at the Serbian Orthodox Church. a. The Serbian Orthodox Diocese did not conduct a timber sale at the Shadeland Camp. 63. The total private pecuniary benefit received by Matthew Shaffer as a result of the use of the authority of office by Gary Shaffer is: a. Plans reviewed and approved by Gary Shaffer: $2,378.00 b. Plans reviewed by Gary Shaffer: $7,888.00 c. Recommendation by Gary Shaffer to Serbian Orthodox Church: $3,476.00 Total $13,742.00 64. Due to complaints of conflict of interest regarding Gary Shaffer's participation in plans submitted by his son, Gary Shaffer considered transferring to Venango County. a. Shaffer subsequently was promoted to District 14 Assistant Director on May 28, 1999, to avoid future conflicts. B. Testimon 65. Donald K. Wary is a District Forester employed by the Pennsylvania Department of Conservation and Natural Resources (DCNR). a. Wary is responsible for the overall administration of a five county forest district in Northwestern Pennsylvania. b. A county service forester provides technical assistance to private forest landowners in the management and care of their land. Shaffer, 99- 038 -C2 Page 12 c. Forest stewardship plans provide comprehensive management plans to landowners to enhance and improve their property. (1) The service forester has a duty to present landowners with a list of consulting foresters who write stewardship plans. (2) After the county service forester meets with a landowner and walks through the property, the landowner chooses a consulting forester. (3) The consulting forester drafts a plan. (4) The county service forester reviews the plan. (5) The landowner and consulting forester submit paperwork to DCNR. (a) A form is signed by the county service forester. (b) A form is routed to the Forest Advisory Service Division to request a reserve of money for the plan. (c) There is a cost share for the preparation of the plan. 1. The Commonwealth pays the landowner a share for the completion of the plan. 2. The consultant has the ability to charge additional money. 3. The money from DCNR is held in reserve until the plan is completed and approved. (d) Only the county or district forester may sign an order to reserve funds for a plan. (e) Consulting foresters may cross county lines to do plans. (f) A plan must be approved by a county service forester or some other authorized person. d. DCNR has a policy that its employees should avoid becoming a "free" employee of a consulting forester or creating the appearance of favoritism. 66. Matthew Shaffer is the son of Shaffer and a consulting forester who has a business, "Shaffer Forestry Services." a. He graduated from Penn State in 1997. b. Matthew Shaffer was a student when he cut vines for the Serbian Orthodox Church in the summer of 1996. c. It is profitable to write forest stewardship plans. (1) It is not as profitable as timber sales. d. Matthew Shaffer received referrals from Stanley Zahora for timber sales and stewardship plans. Shaffer, 99- 038 -C2 Page 13 e. Matthew Shaffer did not have to choose between doing stewardship plans or timber sales. (1) Timber sales can be done during the daylight. (2) Stewardship plans can be done in spare time during evenings. f. The money Matthew Shaffer made from stewardship plans was in addition to timber sales but not in lieu thereof. 67. David R. Ester is a forestry and environmental consultant. a. Ester graduated from Penn State in 1972 with a degree in forest management. b. Ester has been a consulting forester in Crawford County since 1978. c. Ester prepared stewardship plans which were profitable. d. Ester wrote 80% of the plans in 1992 -93, 50% in 1994 and 5% in 1998. (1) Ester wanted to continue writing plans but deduced that the plans were given to someone else. (2) There is a benefit in doing plans because they may generate other work. e. As to the number of plans written, Zahora stayed the same, Matt Shaffer increased, and Ester decreased. 68. Richard F. Fueschlin is a Special Investigator of the Commission. a. Information concerning the plans authored by Matt Shaffer was obtained directly from the records of DCNR. b. Matt Shaffer, through his business Shaffer Forestry Services, receives income from timber sale commissions, stewardship plans, appraisals, and grapevine cutting. (1) The income from stewardship plans comprised 18% of Matt Shaffer's income from August, 1998, to August, 1999. c. When Shaffer was interviewed by Fueschlin and Jason Bricker, Shaffer was sworn under oath and the interview was taped with Shaffer's permission. (1) The role of the county forester is to encourage people to use consulting foresters. (2) Shaffer played an active role in Shaffer Forestry Services by helping his son, Matthew. Shaffer admitted informing landowners that his son Matthew was available to author their plans and that other people on the list were also available. (3) (4) Shaffer acknowledged that his statement in a letter to a landowner about the availability of his son Matthew for a plan was a solicitation. Shaffer, 99- 038 -C2 Page 14 Regarding the grapevines on the Serbian Orthodox Church property, a caretaker planned to do the work but had not started. (a) When people at the church talked to Shaffer, he recommended Matthew as a person who could do the work. 69. Jason Bricker is a Special Investigator for the Commission. a. A list of all landowners in Crawford County who participated in the stewardship program was obtained from the District Forester of DCNR. (5) (a) This type of solicitation occurred in many instances with landowners. (1) For 1998 and 1999, Matt Shaffer wrote 68% of all the stewardship plans. (2) From 1992 through 1997, Ester and Zahora were the two major plan writers. C. Stipulations: The Investigative Division and Shaffer stipulated that the Reports of Interviews of the following individuals by the Investigative Division are equivalent to the testimony of the individuals, had they been called to testify as witnesses. 70. Glen Kenny owns 440 acres in the Crawford County area with 100 acres enrolled in the Forest Stewardship Program. a. Kenny met with Shaffer as the Crawford County Service Forester regarding a forest stewardship plan. b. During a walk through of Kenny's property, Shaffer provided Kenny with a list of consulting foresters. (1) Shaffer told Kenny that Matthew Shaffer recently graduated from Penn State and had certification to author forest stewardship plans. (2) Kenny, who attended Penn State, chose Matthew Shaffer to author his forest stewardship plan both because Matthew Shaffer went to Penn State and because Shaffer mentioned his son in connection with authoring the plan. (a) Kenny would not have chosen Matthew Shaffer to author his plans if Shaffer had not told Kenny about Matthew Shaffer. 71. Lawrence Hammond owns approximately 85 acres of land which is subject to a forest stewardship plan. a. When Hammond contacted Shaffer about a timber sale, Shaffer mentioned the Forest Stewardship Program. b. During a property walk through, Hammond was told by Shaffer that his son did forestry work and authored forest stewardship plans. Shaffer, 99-038-C2 Page 15 (1) Shaffer did not provide Hammond with a list of consulting foresters who author stewardship plans. (2) Hammond chose Matthew Shaffer to author his forest stewardship plan. 72. Robert Rust, the owner of 315 acres in Crawford County, enrolled in the Forest Stewardship Program. a. Rust learned about the stewardship program from Shaffer when Rust contacted him about a timber sale. b. Shaffer provided Rust with a list of consulting foresters and mentioned that his son Matthew Shaffer also authored plans. (1) Shaffer did not recommend his son Matt over other consulting foresters. (2) Rust did not feel that Shaffer solicited Rust for Matthew Shaffer's business. 73. David White purchased 30 acres of land in Crawford County. a. White contacted Shaffer about a forest stewardship plan. (1) Shaffer told White that Matthew Shaffer was certified to author forest stewardship plans. (2) Shaffer told White that Matthew could author his plan at no cost to him. (3) Shaffer neither supplied a list of consulting foresters nor provided the names of other consulting foresters. b. White used Matthew Shaffer because White was out of state and he did not know any other consulting foresters. 74. Melvin Dale Smith owns 15 acres of property of which part is enrolled in the Forest Stewardship Program. a. Smith contacted Shaffer about the stewardship program. b. Smith chose Matthew Shaffer to author his forest stewardship plan based upon the recommendation of Shaffer. 75. David Klein owns 50 acres of land, which is part of the Forest Stewardship Program. a. Klein learned of the program from Shaffer. b. During a walk through of Klein's property, Shaffer informed Klein that Matthew Shaffer was a consulting forester. c. Shaffer sent Klein a list of consulting foresters, including Shaffer Forestry Services. d. Klein chose Matthew Shaffer of Shaffer Forestry Services based upon Shaffer, 99- 038 -C2 Page 16 conversations with Shaffer, the "Shaffer" name recognition, and Klein's belief that Matthew Shaffer would have the professionalism /knowledge of Shaffer. e. Shaffer did not solicit work for Shaffer Forestry Services from Klein. 76. Richard D. Bowden is enrolled in the Forest Stewardship Program as to 13 acres he owns in Crawford County. a. Bowden contacted Shaffer about the stewardship program and for recommendations as to consulting foresters. (1) Shaffer responded that there were several good consulting foresters. (2) Shaffer advised that his son Matthew recently graduated and could author a plan after he obtained certification. b. Bowden selected Matthew Shaffer of Shaffer Forestry Services to write his stewardship plan for two reasons. (1) Bowden wanted to give Matt Shaffer a chance as a young newcomer. (2) Bowden chose Matt Shaffer because a young forester would be more apt to consider the forestland certification work Bowden was performing at Allegheny College. c. Bowden did not believe that Shaffer was trying to influence Bowden to select Shaffer's son but rather was simply supplying information to Bowden. 77. John R. and April Ann Dennis own approximately 28 acres of land in Crawford County. a. When Dennis talked with Dave Ester /Ed Laidlaw about timbering, the stewardship program was mentioned. b. The Dennises contacted Shaffer about the program. (1) The Dennises received a letter from Shaffer wherein he discussed the program and mentioned the availability of his son Matthew to author their stewardship plan. (a) The Dennises in a discussion with Laidlaw indicated that it was inappropriate for Shaffer to reference business to his son. 1. Laidlaw informed the Dennises that the "code" prohibits Shaffer from recommending one forester over another. c. The Dennises chose Ed Laidlaw to author their plan because Laidlaw timbered their property and the Dennises thought Laidlaw had done quality work. 78. Michael Lelak is enrolled in the stewardship program as to the 50 acres of land he owns in Crawford County. a. Lelak contacted Shaffer about the program. b. After Lelak completed and sent back a questionnaire to Shaffer, Lelak was informed by Shaffer that Lelak would have to select a consulting forester. Shaffer, 99- 038 -C2 Page 17 c. Shaffer told Lelak that Matthew Shaffer was a consulting forester who would be available after graduation. d. Lelak did not feel that he was required to select Shaffer's son but he did not receive any other names of consulting foresters from Shaffer. e. Lelak did not feel pressured to use Shaffer Forestry Services. (1) Lelak construed Shaffer's mention of his son not as a recommendation but rather as a statement that his son was qualified to do the work. 79. Gorden Hyndford owns 100 acres of land in Crawford County, of which 30 acres is enrolled in the stewardship program. a. Hyndford met with Shaffer who provided information about the stewardship program. b. Shaffer provided Hyndford with a list of consulting foresters. c. Hyndford chose Zahora to author the plan but Zahora became ill and did not complete the plan. (1) Shaffer contacted Hyndford and asked him if he would have a "problem" if Shaffer's son Matthew completed the stewardship plan. (a) After Hyndford told Shaffer that it was all right for Matthew Shaffer to finish the stewardship plan, Matthew completed and then submitted the plan. 80. Eli Rebich serves as the Vice - President of the Serbian Orthodox Diocese. a. When Rebich contacted Shaffer about recommending someone to cut grapevines on church property, Shaffer told Rebich that Matthew Shaffer could do the job. (1) Shaffer did not provide any other name to Rebich. 81. Bernard Blystone owns 89 acres of property of which 35 acres is enrolled in the Forest Stewardship Program. a. After Blystone completed the paperwork for the stewardship program, Shaffer did a walk through of the property. b. Shaffer provided Blystone with a list of consulting foresters. (1) Blystone selected Matthew Shaffer because they were neighbors for many years. 82. Frank Weaver owns 70 acres of land. a. Weaver contacted Shaffer about the Forest Stewardship Program. b. Weaver used Matthew Shaffer as the consulting forester for his plan. c. Shaffer did not solicit work for Shaffer Forestry Services. Shaffer, 99- 038 -C2 Page 18 83. Robert Concilus owns 160 acres of forestland. a. Concilus contacted Shaffer regarding the stewardship program. (1) Shaffer supplied Concilus with a list of approved plan writers. (2) Concilus chose David Ester to write the plan for his property which at that time was only 47 acres. b. When Concilus contacted Shaffer a second time regarding a plan for 110 acres, Shaffer's son Matthew was on the approved list. (1) Concilus used the services of Steven Hawkes to author the plan. c. Shaffer told Concilus that Matthew Shaffer was available to do forestry type work. (1) Concilus considered the statement informational and not a recommendation. 84. Stanley J. Zahora is the owner of Zahora Tree Service. a. Zahora referred jobs he did not want, or for which he needed help, to Matthew Shaffer. b. Zahora referred landowners who contacted him about the stewardship program to Matthew Shaffer on a regular basis. c. Shaffer never asked Zahora to refer work to Matt Shaffer. d. Zahora believes that Shaffer was not permitted to recommend one forester over another. e. Matthew Shaffer informed Zahora that he (Matthew Shaffer) had several stewardship plans to write after he graduated. 85. John P. Mehalik owns 90 acres of land in Crawford County which is enrolled in the stewardship program. a. Mehalik contacted both Zahora and Shaffer about his forestland. b. When Mehalik asked Shaffer about whom Mehalik could use to write a plan, Shaffer indicated that he could not recommend one specific individual and would send a list of approved writers. (1) Shaffer mentioned that his son Matt was going to Penn State to study forest service. c. Mehalik chose Zahora as the consulting forester. d. When the stewardship plan did not proceed, Mehalik called Shaffer who informed him that Zahora was having medical problems. e. Mehalik chose Matthew Shaffer to write the plan because he had worked for Zahora. Shaffer, 99- 038 -C2 Page 19 86. Nancy DuParc owns 52 acres of forestland in Crawford County. a. When DuParc enrolled in the stewardship program, Shaffer sent her a list of consulting foresters. b. Shaffer told DuParc that Matthew Shaffer was a consulting forester but she must make her own choice. c. After DuParc's first choice (not Matthew Shaffer) declined to author her stewardship plan, DuParc obtained the services of Matthew Shaffer. (1) Matt Shaffer was her second choice. (2) Matt Shaffer was close to her property. 87 Samuel Spencer owns 97 acres of farmland. a. After Spencer contacted Shaffer about the stewardship program, Shaffer provided a list of consulting foresters. b. Spencer chose Matthew Shaffer to author his plan because he was local and close to Spencer's property. c. Shaffer did not mention to Spencer that Matthew Shaffer was a consulting forester. 88. Edward Williamson owns 120 acres of land enrolled in the Forest Stewardship Program. a. Shaffer did a property walk through and then provided a list of consulting foresters. b. Williams chose Matthew Shaffer to author his stewardship plan because Matt Shaffer was located near William's property. c. Shaffer did not mention that his son Matthew performs forestry work. d. Shaffer did not influence Williams to chose Matthew Shaffer. 89. Richard Cercone owns 135 acres that is enrolled in the Forest Stewardship Program. a. Cercone learned of the stewardship program through Matthew Shaffer. b. Matthew Shaffer told Cercone to contact Shaffer about the stewardship program. c. Shaffer provided Cercone with the paperwork on the program but did not supply a list of consulting foresters. (1) Cercone believes a list of consulting foresters would have been a waste of time, given his existing relationship with Matthew Shaffer. 90. Stanley C. Plonski owns 57 acres of in Erie /Crawford Counties which is included in the Forest Stewardship Program. a. Shaffer walked through Plonski's property and supplied a list of consulting Landowners Amount of Funds Reserved Date of Shaffer's approval to reserve funds Mehalik, John P. $484.00 3/24/97 Weaver, Frank E. $545.00 7/2/98 Hyndford, Gorden $225.00 4/4/96 Morrow, William F. $150.00 9/3/97 Richmond, Lee $557.00 7/20/98 Shaffer, 99- 038 -C2 Page 20 foresters who were certified to author stewardship plans. b. Plonski chose Matthew Shaffer to author his stewardship plan because there would be better communication between Shaffer and Matthew Shaffer and because Matthew Shaffer was conveniently located. 91. Richard Harper owns 80 acres of property. a. Harper contacted Shaffer to do a walk through of his property. b. Shaffer gave Harper a list of consulting foresters who are certified to author stewardship plans. c. Harper chose Matthew Shaffer to author his plan because he wanted to help out a young forester. d. Shaffer told Harper that Matthew Shaffer was his son only after Harper asked. 92. Zee Chorazy is the owner of forestland in Crawford County. a. Chorazy contacted Shaffer who walked through his property and supplied information about the stewardship program. b. Chorazy chose Matthew Shaffer to author his stewardship plan but does not remember why he did so. 93. Lee Richmond owns somewhere between 170 and 225 acres of property. a. Richmond enrolled in the Forest Stewardship Program. b. Richmond utilized Matthew Shaffer to author his plan and to provide grapevine control on his property. c. Richmond utilized the services of Matthew Shaffer because he was the closest consulting forester. d. When Richmond asked Shaffer about the "Shaffer" on the list, Shaffer responded that he was his son but that he could not recommend one consulting forester over another. D. Documents: 94. ID -2 consists of photocopies of the requests to cost -share and authorizations to pay cost -share for development of forest stewardship plan as to landowners for whom Matthew Shaffer authored the plan and for whom Shaffer approved the reservation of funds. Klein, David C. $404.00 7/23/98 Kenny, Glenn $509.00 8/3/98 White, David A. $200.00 7/7/97 Williamson, Edward A. $569.00 ($560.00 paid) 11/25/97 Moore, Timothy J. $443.00 8/31/98 Smith, Melvin Dale $250.00 10/14/98 Mickle, Ron $200.00 9/25/97 Shaffer, 99-038-C2 Page 21 Landowners Who Used Matthew Shaffer to Author a Forest Stewardship Plan References made by Shaffer to landowners about Matthew Shaffer Forest Stewardship Plans Authored by Matthew Shaffer and Approved by Shaffer Date of Approval of Forest Stewardship Plan Prepared by Matthew Shaffer Amount of Payment to Matthew Shaffer for Authoring a Forest Stewardship Plan Moore, Timothy Plonski, Stanley X 1/27/99 $443.00 Morrow, William F. 12/1/98 X 9/22/98 $150.00 Plonski, Stanley C. & Patrick $341.00 X 2/12/99 $473.00 Rust, Robert C. & Ravena Shaffer mentioned that his son, Matthew Shaffer, authored stewardship plans. X 5/28/99 $1,095.00 Landowners Amount of Funds Reserved Date of Shaffer's approval to reserve funds Cercone, Richard $885.00 ($875.00 paid) 10/22/98 Plonski, Stanley $455.00 ($473.00 paid) 7/8/98 Harper, Richard $605.00 12/1/98 Chorazy, Zee $360.00 4/8/98 Blystone, Bernard J. $341.00 2/9/99 Hodge, Christopher $180.00 11/10/97 Lelak, Michael $425.00 10/15/98 Bauer, Don /Wolf, David $509.00 10/27/98 Blystone, Raymond F. $341.00 10/19/98 Blystone, Raymond F. $320.00 ($285.00 paid) 10/19/98 Bowden, Richard $250.00 10/9/98 Rust, Robert C. $1,095.00 2/9/99 DuParc, Nancy H. $437.00 11/9/98 McNamara, Howard $503.00 12/2/98 Spencer, Samuel C. $707.00 1/27/99 Hammond, Lawrence L. $437.00 2/10/99 Shaffer, 99- 038 -C2 Page 22 95. The following table includes those landowners to whom Shaffer advocated and /or mentioned his son Matthew to author a forest stewardship plan and /or approved the plan prepared by Matthew Shaffer. Landowners Who Used Matthew Shaffer to Author a Forest Stewardship Plan References made by Shaffer to landowners about Matthew Shaffer Forest Stewardship Plans Authored by Matthew Shaffer and Approved by Shaffer Date of Approval of Forest Stewardship Plan Prepared by Matthew Shaffer Amount of Payment to Matthew Shaffer for Authoring a Forest Stewardship Plan $545.00 Weaver, Frank & Mary A. X 7/2/98 White, David A. & Sally J. Shaffer told White that Matthew Shaffer had certification and could author a stewardship plan at no cost to White. X 12/11/98 $200.00 Williamson, Edward X 1/8/99 $560.00 Kenny, Glenn Shaffer told Kenny that Matthew Shaffer had certification to author stewardship plans. $509.00 Hammond, Lawrence Shaffer told Hammond that Matthew Shaffer authored stewardship plans. $437.00 Smith, Melvin Dale Shaffer recommended Matthew Shaffer to Smith to author a stewardship plan. $250.00 Klein, David Shaffer informed Klein that Matthew Shaffer was a consulting forester. $404.00 Bowden, Richard Shaffer advised Bowden that Matthew Shaffer could author the stewardship plan after he obtained certification. X 4/29/99 $250.00 Lelak, Michael Shaffer told Lelak that Matthew Shaffer was a consulting forester who would be available after graduation. $425.00 Hyndford, Gordon Shaffer contacted Hyndford to ask if Matthew Shaffer could complete a stewardship plan started by Zahora. $225.00 Shaffer, 99- 038 -C2 Page 23 Landowners Who Used Matthew Shaffer to Author a Forest Stewardship Plan References made by Shaffer to landowners about Matthew Shaffer Forest Stewardship Plans Authored by Matthew Shaffer and Approved by Shaffer Date of Approval of Forest Stewardship Plan Prepared by Matthew Shaffer Amount of Payment to Matthew Shaffer for Authoring a Forest Stewardship Plan $437.00 DuParc, Nancy Shaffer told DuParc that Matthew Shaffer was a consulting forester. Harper, Richard Shaffer told Harper that Matthew Shaffer was his son in response to a question by Harper. X 2/22/99 $605.00 Chorazy, Zee X 3/4/99 $360.00 Bauer, Donald & Wolf, David X 4/12/99 $509.00 Shaffer, 99- 038 -C2 Page 24 96. ID -3 is a photocopy of the "Procedure for Obtaining a First Stewardship Plan." (a) The service forester is required to supply the landowner with a list of eligible professionals who write stewardship plans. 97. ID -4 is a photocopy of a list of approved consulting foresters for writing forest stewardship plans, as revised on September, 1998. a. The list is for Crawford County. b. The list contains the names, addresses, and information as to 22 consulting foresters. c. Matthew Shaffer is included on the list. 98. ID -6 is a photocopy of a letter from Shaffer to an individual with a first name of "John." a. The letter is drafted on DCNR stationery and dated January 6, 1999. b. Shaffer acknowledges the individual's interest in the stewardship program. c. Shaffer informs the individual that he must select a consulting forester on an enclosed list. d. Shaffer advised the individual as follows: Shaffer, 99- 038 -C2 Page 25 99. ID -20 is a photocopy of a portion of a DCNR publication relating to the forest stewardship program. a. P4 contains the following admonition: Avoid, however, becoming a "free" employee of the consulting forester, or any appearance of favoritism. 100. ID -21 is a photocopy of a letter from Shaffer to an individual whose first name is "Stanley." a. The letter is written on DCNR letterhead stationery with a date of February 12, 1998. b. Shaffer referenced that he and his son Matthew finished the forest stewardship plan. c. Shaffer advised that there was no fee from Matthew for the plan. III. DISCUSSION: At all times relevant to this matter, the Respondent, Gary P. Shaffer (Shaffer), has been a public employee subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, et seq., as now codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101, et seq., which Acts are referred to herein as the "Ethics Act." The allegation is that Shaffer, as a County Service Forester, violated Section 3(a) of the Ethics Act when he used the authority of his office for the private pecuniary benefit of his son when he recommended his son's forestry service to individuals applying to participate in the County Forest Stewardship Program. 65 P.S. §403(a). ". . . Please make contact with the writer of your choice to find out if he can accommodate your plan within the six month time frame. Many foresters are very busy this year with timber sales — so you will need to check this out. The Matt Shaffer on the list is my son — I know that he can fit you in." Section 403. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under the Ethics Act as follows: Section 402. 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 Shaffer, 99- 038 -C2 Page 26 facts. 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. Section 3(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Having noted the issues and applicable law, we shall now summarize the relevant Shaffer was a County Service Forester for the Department of Conservation and Natural Resources (DCNR) from May 1988 until May 1999. One of Shaffer's job duties was to provide forestry assistance to private woodland owners. Another responsibility was to assist landowners who were interested in enrolling in the Forest Stewardship Program administered by DCNR. Shaffer had to abide by DCNR policy that county service foresters should not take any actions which would create a conflict of interest or put themselves in a position of acting as a "free" employee of any forester. In 1996, the Serbian Orthodox Church contacted Shaffer regarding a grapevine problem on its forestland. The Church had a person who planned to do the grapevine cutting but never started the project. Subsequently, Eli Rebich, the Vice President of the Church, contacted Shaffer in his capacity of County Service Forester about recommending someone to cut the grapevines on its property. Shaffer told Rebich that his son Matthew, who was a forestry student at Penn State, could do the job. Shaffer did not provide any other names to Rebich. Based upon Shaffer's recommendation, Matthew Shaffer was hired to cut the grapevines on the Serbian Orthodox Church property for which he received payment of $3,476.00. Matthew Shaffer then divided the payment with the two individuals who assisted him on the project. In the 1990's, many landowners contacted Shaffer regarding the Forest Stewardship Program. That program enables qualifying landowners to apply to DCNR for grants of money for the preparation of forestry stewardship plans for their properties. A forestry plan is an analysis of landowner's property and is designed to educate the landowners and provide technical assistance in the management of their forestland. In order to qualify for grants, landowners must contact the county service forester who walks through their property and then supplies them with information regarding the grant application process. The landowners are requested to select a certified consulting forester from a list which is to be supplied by the county service forester. The consulting forester is an individual who will prepare the landowner's plan for a fee. Once a landowner selects a consulting forester, an application is completed which is submitted to the DCNR district office. The county service forester reviews the application and, where appropriate, authorizes a reserve of money for a stewardship plan. The program is designed as cost - sharing assistance for landowners for the services provided by the consulting foresters. However, the consulting forester in many instances will not charge the landowner any more than the DCNR grant. The consulting forester will then prepare the plan which is submitted to DCNR. If the plan is acceptable, payment is authorized to the consulting forester. Parenthetically, although the payments are administered through the Pennsylvania Association of Conservation Districts (Fact Finding 11c.), for our purposes we shall make all references to DCNR in that the Association's involvement is not material to the issues before us. Shaffer, 99- 038 -C2 Page 27 Shaffer, as a County Service Forester, assisted many landowners in enrolling in the program. Typically, landowners selected consulting foresters Stanley Zahora or David Ester to author their plans. However, in the spring of 1997, when Matthew Shaffer graduated from Penn State University, Shaffer began referencing Matthew Shaffer to some landowners who contacted Shaffer about the program. Shaffer informed the landowners that Matthew Shaffer was a consulting forester who had a forestry business. Such references to Matthew Shaffer occurred while Shaffer was on official DCNR business. In addition, Shaffer approved reserves of DCNR funds for some landowners who selected Matthew Shaffer to author their stewardship plans. In some cases, Shaffer actually approved the plans that Matthew Shaffer authored. This continued until May of 1999, when Shaffer transferred to another DCNR District, following complaints of conflict of interest by Shaffer relative to Matthew Shaffer. Those instances where Shaffer authorized the reserve of funds for landowners who selected Matthew Shaffer to author their plans are set forth in Fact Finding 94. Those instances where Shaffer either interacted with a landowner about using his son to author a plan or actually approved plans prepared by Matthew Shaffer are set forth in Fact Finding 95. The facts reflect that Shaffer advocated for his son, Matthew Shaffer, to author stewardship plans for some, but not all landowners with whom Shaffer had discussions about the program. The particulars of such interactions between Shaffer and the various landowners are as follows. As to Kenny, Shaffer provided a list of consulting foresters and told Kenny that Matthew Shaffer recently graduated from Penn State and had certification to author forest stewardship plans. Kenny chose Matthew Shaffer in part based upon Shaffer's mention of Matthew Shaffer in connection with authoring the plan. Hammond was told by Shaffer that Matthew Shaffer did forestry work and authored forest stewardship plans. Hammond did not receive a list of consulting foresters and chose Matthew Shaffer to author his plan. Rust was provided a list of consulting foresters by Shaffer who mentioned that his son, Matthew Shaffer, authored plans. Rust did not believe that Shaffer's comment constituted a solicitation or recommendation. White was told by Shaffer that Matthew Shaffer could author his plan at no cost. Since White was out of state and did not know of any other consulting foresters, he chose Matthew Shaffer to author his plan. Smith contacted Shaffer about the program and chose Matthew Shaffer to author his stewardship plan based upon the recommendation of Shaffer. Klein was informed by Shaffer that Matthew Shaffer was a consulting forester. Klein received a list of consulting foresters from Shaffer. Klein chose Matthew Shaffer based upon his conversations with Shaffer, the Shaffer name recognition and Klein's belief that Matthew Shaffer would have the professionalism and knowledge of Shaffer. Bowden contacted Shaffer for recommendations as to a consulting forester. Shaffer stated that his son, Matthew Shaffer, could author a plan after he obtained certification. Bowden did not believe that Shaffer was trying to influence him to select Matthew Shaffer to author the plan. Shaffer, 99- 038 -C2 Page 28 The Dennises contacted Shaffer about the program but chose Laidlaw to author their plan because Shaffer had mentioned the availability of his son, Matthew, to author the stewardship plan which the Dennises felt was inappropriate as a business solicitation. Lelak contacted Shaffer about the program and Shaffer told Lelak that Matthew Shaffer was a consulting forester who would be available after graduation. Lelak chose Matthew Shaffer as the consulting forester but did not feel that he was required to select Matthew Shaffer. Lelak did not receive any other names of consulting foresters from Shaffer. Hyndford selected Stanley Zahora to author his plan. However when Zahora became ill, Shaffer contacted Hyndford and asked if he would have "a problem" if Matthew Shaffer would complete the plan. Hyndford told Shaffer that such an arrangement would be acceptable. Matthew Shaffer then completed the stewardship plan for Hyndford. Blystone received a list of consulting foresters for the stewardship program from Shaffer and selected Matthew Shaffer because they were neighbors. Weaver selected Matthew Shaffer to author his plan without any solicitation on the part of Shaffer. Concilus had two stewardship plans: David Ester wrote the first and Matthew Shaffer wrote the second. When Concilus contacted Shaffer as to his second plan, Shaffer mentioned that Matthew Shaffer was available to do forestry type work. Concilus considered the statement informational and not as a recommendation. Mehalik asked Shaffer for a recommendation as to a consulting forester. Shaffer indicated that he could not recommend anyone and would supply a list. Shaffer mentioned that Matthew Shaffer was going to Penn State to study Forest Service. Mehalik chose Zahora as the consulting forester but when Zahora began having medical problems, Mehalik chose Matthew Shaffer to write the plan because he worked with Zahora. DuParc contacted Shaffer for a list of consulting foresters. Shaffer told DuParc that Matthew Shaffer was a consulting forester but that she had to make her own choice. When DuParc's first choice of a consulting forester declined, DuParc selected Matthew Shaffer who was close to her property. Spencer contacted Shaffer and chose Matthew Shaffer to author his plan because he was local and close to Spencer's property. There was no reference by Shaffer that Matthew Shaffer was a consulting forester. Williamson chose Matthew Shaffer to author his plan because of his close proximity to Williamson's property. Shaffer neither mentioned that Matthew Shaffer performed forestry work nor attempted to influence Williamson's choice. Cercone learned of the program through Matthew Shaffer who told him to contact Shaffer. Cercone chose Matthew Shaffer to author his plan based upon their existing relationship. Plonski received a list of consulting foresters from Shaffer and chose Matthew Shaffer to author his plan because there would be better communication between Shaffer and Matthew Shaffer and because Matthew Shaffer was conveniently located. Harper received a list of consulting foresters from Shaffer and chose Matthew Shaffer to author his plan because he wanted to help a young forester. Shaffer, 99- 038 -C2 Page 29 Chorazy selected Matthew Shaffer to author his stewardship plan but does not remember why he did so. Richmond utilized Matthew Shaffer to author his plan because he was the closest consulting forester. Richmond asked Shaffer about the "Shaffer" on the list. Shaffer responded that Matthew Shaffer was his son but he (Shaffer) could not recommend one forester over another. The above interactions that Shaffer had with landowners are detailed in Fact Findings 70 -83, 85 -91. The income that Matthew Shaffer received from authoring stewardship plans between August 1998 and August 1999 amounted to $12,350. Fact Finding 51. The private pecuniary benefit received by Matthew Shaffer through Shaffer's use of office is $13,742 computed as follows: $2,378 for plans reviewed /approved by Shaffer; $7,888 for plans reviewed by Shaffer; and $3,476 as to recommending Matthew Shaffer for the vine cutting on the Serbian Orthodox Church property. Fact Finding 63. The Investigative Division has filed a brief wherein it advocates for the following: violations when Shaffer recommended the services of his son to author landowners' plans; violations when Shaffer reserved funds in cases where his son would author stewardship plans; violations when Shaffer reviewed /approved completed stewardship plans his son authored; an attempted violation when Shaffer recommended his son to private landowners, the Dennis family, who then chose another forester to author the plan; and a violation when Shaffer recommended his son for cutting vines on the Serbian Orthodox Church property. The Investigative Division seeks a payback of $13,508, computed as follows: $12,350 as to those stewardship plans authored by Shaffer's son for which Shaffer reserved the funds plus $1,158 as to his son's one third share of the contract for cutting vines on the church property. Shaffer has not filed a brief. Having summarized the above relevant facts and the positions of the parties, we must now determine whether the actions of Shaffer violated Section 3(a) of the Ethics Act. Regarding the forest stewardship plans, but for the fact that Shaffer was the County Service Forester, he would not have been in a position to interact with landowners in an official capacity. During such interactions, Shaffer, in some instances, mentioned or recommended his son, Matthew Shaffer, regarding authoring stewardship plans for certain landowners. In addition, Shaffer, as a County Service Forester, signed approvals to reserve DCNR funds for grants for stewardship plans which would be authored by Matthew Shaffer. Finally, Shaffer, in some cases, actually approved the stewardship plans that were completed by Matthew Shaffer for certain landowners. Such uses of authority of office resulted in private pecuniary benefits to Matthew Shaffer. Clearly, as to any plans authored by Matthew Shaffer, he received those grant monies from DCNR. Finally, the pecuniary benefits inured to Matthew Shaffer who is a member of Shaffer's immediate family, as noted above. See, 65 P.S. §402. Accordingly, Shaffer violated Section 3(a) of Act 9 of 1989 when he used the authority of his office as a County Service Forester to obtain private pecuniary benefits for his son, Matthew Shaffer, in those instances when he reserved funds for plans that would be authored by Matthew Shaffer and /or reviewed and /or approved stewardship plans authored by Matthew Shaffer and /or interacted with landowners for the utilization of Matthew Shaffer to author stewardship plans. Shaffer, 99- 038 -C2 Page 30 The above is consonant with our prior decisions where we held that a public official /employee may not use his public position as a means of advancing private business interests. See, Catone, Order 994; Metric, Order 1037. As to the Dennis family, Shaffer mentioned his son for the stewardship plan but the Dennises chose another forester because they felt that Shaffer's solicitation was inappropriate. In this instance, Shaffer made an unsuccessful attempt to have the Dennises choose his son. Accordingly, Shaffer attempted to violate Section 3(a) of the Ethics Act when he recommended his son to author a stewardship plan for the Dennis family who chose another consulting forester to author their plan. See, Taylor, Order 983. As to the matter of the Serbian Orthodox Property, the allegation in this case is narrowly drawn as to the actions of Shaffer relative to the County Forest Stewardship Program. Due process requires that we may not depart from the allegation. See, Pennsy v. Department of State, 594 A.2d 845 (1991). Accordingly we cannot and do not address the issue of the vine cutting at the church property based upon the foregoing. Turning to the matter of restitution, the Ethics Act empowers this Commission to impose such a measure where a public official /employee has violated the Ethics Act. See, 65 P.S. §407(13). In this case, we believe that such a pay back is warranted. In reviewing the record before us, it is clear to us that Shaffer knew that it was problematic for him to advocate for his son, Matthew Shaffer, to author stewardship plans. The foregoing is evident because of the instances where landowners requested Shaffer to make a recommendation and Shaffer declined noting that the landowner should make their choice by reviewing the names on a supplied list. Such actions by Shaffer were the appropriate responses based upon the policies of DCNR and in particular the Ethics Act. Unfortunately, those responses by Shaffer were not routinely provided. To the contrary, as noted above, there were instances where Shaffer engaged in conduct which recommended his son for authoring stewardship plans while Shaffer was acting in the official capacity as the County Service Forester. Such actions were contrary to both the letter and spirit of the Ethics Act. Accordingly, we impose restitution in the amount of $10,266 based upon the following calculation: $13,742 (the pecuniary benefit obtained as per Fact Finding 63) less the $3,476 (the vine cutting project at the church property which we have excluded for the reasons noted above). Shaffer is directed to pay $10,266 through this Commission to the Commonwealth of Pennsylvania within 30 days of the date of issuance of this order. Failure to comply with the foregoing will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Gary P. Shaffer, as a County Service Forester for Crawford County, Pennsylvania Department of Conservation and Natural Resources, is a public employee subject to the provisions of Act 9 of 1989 as now codified by Act 93 of 1998, Chapter 11. 2. Shaffer violated Section 3(a) of the Ethics Act when he used the authority of his office as a County Service Forester to obtain private pecuniary benefits for his son, Matthew Shaffer, in those instances when he reserved funds for plans that would be authored by Matthew Shaffer and /or reviewed and /or approved stewardship plans authored by Matthew Shaffer and /or interacted with landowners for the utilization of Matthew Shaffer to author stewardship plans. 3. Shaffer attempted to violate Section 3(a) of the Ethics Act when he recommended his son to author a stewardship plan for the Dennis family who chose another consulting forester to author their plan. In Re: Gary P. Shaffer ORDER NO. 1161 File Docket: 99- 038 -C2 Date Decided: 06/20/00 Date Mailed: 07/07/00 1. Gary P. Shaffer, as a County Service Forester for Crawford County, Pennsylvania Department of Conservation and Natural Resources, violated Section 3(a) of the Ethics Act when he used the authority of his office as a County Service Forester to obtain private pecuniary benefits for his son, Matthew Shaffer, in those instances when he reserved funds for plans that would be authored by Matthew Shaffer and /or reviewed and /or approved stewardship plans authored by Matthew Shaffer and /or interacted with landowners for the utilization of Matthew Shaffer to author stewardship plans. 2. Shaffer attempted to violate Section 3(a) of the Ethics Act when he recommended his son to author a stewardship plan for the Dennis family who chose another consulting forester to author their plan. 3. Shaffer is directed to pay $10,266 through this Commission to the Commonwealth of Pennsylvania within 30 days of the date of issuance of this order. Failure to comply with the foregoing will result in the institution of an order enforcement action. BY THE COMMISSION, DANEEN E. REESE, CHAIR