HomeMy WebLinkAbout1179 AnthonyIn Re: David F. Anthony
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Daneen E. Reese, Chair
Louis W. Fryman, Vice Chair
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
Donald M. McCurdy
00- 005 -C2
Order No. 1179
2/26/01
3/12/01
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted
an investigation regarding a possible violation of the Public Official and Employee Ethics
Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., by the above -named Respondent. At the
commencement of its investigation, the Investigative Division served upon Respondent
written notice of the specific allegation(s). Upon completion of its investigation, the
Investigative Division issued and served upon Respondent a Findings Report identified as
an "Investigative Complaint." An Answer was filed and a hearing was waived. The record
is complete. A Consent Agreement and Stipulation of Findings were submitted by the
parties to the Commission for consideration. The Consent Agreement was subsequently
approved.
Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter
11, Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion
of pending matters under Act 93 of 1998.
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 Chapter 11 of Act
93 of 1998. Any person who violates confidentiality of the Ethics Law is guilty of a
misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than
one year. Confidentiality does not preclude discussing this case with an attorney at law.
Anthony, 00- 005 -C2
Page 2
I. ALLEGATION:
That David L. Anthony, a public employee, in his capacity as township manager for
Washington Township, Erie County, violated Sections 1103(a) and 1103(f) of the State
Ethics Act (Act 93 of 1998) 65 Pa.C.S. § §1103(a) and 1103(f) when he used the authority
of his office for the private pecuniary benefit of himself and /or a member of his immediate
family when he participated in decisions of the township to hire his wife to a part -time
position to the township, including setting salary, duties and work schedule.
II. FINDINGS:
1. David L. Anthony has served as the Manager for Washington Township, Erie
County, since October 1997.
2. Washington Township is a second class township that operates utilizing the
council- manager form of government.
a. Council consists of five (5) members.
b. Council appoints a manager who serves as the chief executive and
administrative official of the township.
3. Anthony, as manager, has executive control over day -to -day operations of the
township.
4. On September 1, 1998, council passed a motion to approve the hiring of a part -time
person to work in the township office.
a. The anticipated resignation of township employee Stephanie Moraski
facilitated this motion.
b. The use of a temporary employment service was discussed as well as the
amount of help needed.
c. The motion was approved with Council Person Free opposing.
5. Paula Sherwood was subsequently hired to replace Moraski effective February 15,
1999.
a. Sherwood's salary was $9.00 per hour.
6. Anthony hired Sherwood based on a recommendation from Township Mayor and
Councilor David Patterson.
7 Fifteen - thousand dollars ($15,000.00) was allocated for the part -time office position
and included in the budget for 1999.
a. Anthony prepares the yearly budget and presents it to council for their
approval.
b. Council approved the 1999 budget.
8. Deborah L. Anthony is Anthony's wife.
a. They reside together at 9431 Eureka Road, Girard, Pennsylvania 16417.
Anthony, 00- 005 -C2
Page 3
9. On May 4, 1999, council discussed the hiring of a part -time office assistant.
a. No official action was taken at that time.
10. Sometime during the Spring of 1999, Mayor Patterson suggested Anthony consider
his wife, Deborah Anthony, for the part -time position.
a. Anthony advised Patterson his wife was employed at that time.
11. In June 1999 Deborah Anthony was furloughed from her position as a territory sales
manager with Alpha One, Inc.
a. Deborah Anthony worked for Alpha One for approximately one (1) year.
b. Prior to Alpha One, Deborah Anthony worked for American Greetings for
approximately seven (7) years as a merchandiser.
12. On or about September 1999 Kim Sanders terminated her township employment.
a. Sanders job responsibilities included billing and accounts payable, payroll
and earned income tax collector.
13. During a budget meeting in the latter part of September 1999 council and Anthony
discussed filling the office assistant position.
a. Council Person Free was opposed, Mayor Patterson was in favor and no
other council members voiced an objection.
b. No formal vote was taken.
c. Anthony believed that he had the tacit approval of council for the hiring of his
wife.
14. Anthony hired his wife, Deborah Anthony, to a part -time office position effective
October 5, 1999.
a. Anthony made the decision to offer his wife the position based in part on the
fact that only one member of council expressed opposition.
b. Deborah Anthony remains employed at Washington Township as an office
assistant.
15. Anthony also based the decision to hire his wife, in part, on the fact that he wanted
an employee that he felt that he could trust.
16. Deborah Anthony was on furlough from Alpha One, Inc. at the time that she was
hired in Washington Township.
17. The position for which Deborah Anthony was hired was not publicly advertised.
a. No interviews were conducted by Anthony or by council.
b. No other applicants were considered for the position.
18. At the October 5, 1999, council meeting Anthony did not seek formal council
approval for the hiring of his wife.
Anthony, 00- 005 -C2
Page 4
a. Councilor Free stated on the record her objection to Anthony hiring a female
part -time office staff person.
b. This objection was made at the end of the council meeting.
c. No specific objection was made regarding the hiring of Deborah Anthony
during this meeting.
d. No action was taken by council to approve the hiring.
e. Council was aware of who had been hired.
19. Deborah Anthony's rate of pay was set at $9.00 per hour based on a 32 -hour work
week.
a. $9.00 per hour is the maximum amount authorized by the 1999 budget
based on a 32 hour work week.
20. Anthony did not seek or obtain township council approval for his wife's rate of pay
as he believed that such had already been approved in the budget.
21. Anthony, as township manager, is ultimately responsible for the submission of the
township payroll to council.
a. This includes the pay of Deborah Anthony.
22. Anthony presents payroll to council for approval at regularly scheduled council
meetings.
a. Regular council meetings are held on the first Tuesday of each month
(except on holidays, etc.).
b. Payroll presented to council is for the previous month.
23. Anthony presents a Personnel /Payroll Current Pay Period Wage /Tax Report to
council for approval of payroll.
24. Anthony signs payroll checks, including those issued to Deborah Anthony.
25. The following is a list of all checks made payable to Deborah Anthony from
Washington Township for the above listed period:
Check # Date Net Gross Anthon
Amount Amount Approval
20945 11/03/99 $ 1,031.88 $ 1,246.50 Yes
20959 12/07/99 1,112.96 1,356.75 Yes
20978 01/01/00 1,068.82 1,309.50 Yes
21024 02/01/00 1,065.59 1,291.50 Yes
21038 03/07/00 1,076.25 1,293.75 Yes
21502 04/04/00 1,194.68 1,467.00 Yes
21515 05/02/00 953.05 1,138.50 Yes
21543 06/06/00 1,072.21 1,300.50 Yes
21546 06/05/00 1,138.41 1,390.50 Yes
Anthony, 00- 005 -C2
Page 5
Total: $ 9,704.35 $ 11, 794.50
26. Anthony has hired other full -time office employees since becoming manager in
1997.
27. Anthony advertised and conducted several interviews for the positions that were
filled by Saxton and Carcerella.
a. Anthony sought formal council approval for the hiring and rate of pay for both
Saxton and Carcerella as well as Paula Sherwood.
1. Approval consists of a council vote at a public meeting.
28. In a January 7, 2000, memorandum addressing various township personnel issues,
Council Member Free questioned the hiring of Anthony's wife.
a. Anthony was provided with a copy of said memorandum.
29. On January 12, 2000, Anthony submitted to council a written response to the
January 7, 2000 personnel memorandum, which, in part, provided:
"Last but not least, the employment of my wife. I received the ok from the vast
majority of council. From the above written statements it should be easy to see why
I hired someone I could trust."
30. At the February 1, 2000 council meeting, during an executive session, Anthony
requested that council take a formal action to approve the hiring of his wife due to a
possible State Ethics Commission investigation.
a. Council did not take any action to approve the hiring at this time.
31. During a February 8, 2000 special council meeting, Anthony again requested that
council take a formal action to approve the hiring of his wife.
a. The council vote was 2 -2, and the motion died due to a lack of majority.
b. Councilor Vere Woods was not present for this meeting.
32. On February 9, 2000, Anthony e- mailed his resignation to Mayor Patterson.
a. As a result of this e -mail, Mayor Patterson suggested to Anthony that he
submit a list of requests that may, if addressed, make Anthony stay at
Washington Township.
33. On February 10, 2000, Anthony e- mailed Patterson a list of issues that, if
addressed, would make Anthony stay at Washington Township.
a. Item No. 8 on Anthony's list states, in part, the following:
"I want council to approve the hiring of Deborah Anthony as part time office
help. If they place limits ie: never to handle money, never any benefits.
Fine, but make a decision so that I do not have to worry about the ethics
violation. I feel that I would win such a suit but who wants to go that far. I
am well aware of past history, I am aware of present situations, we have
brothers and brothers inlaws working here. I do not feel that it should be or
will be a problem. No one has complained of her performance. I am here to
Anthony, 00- 005 -C2
Page 6
get a job done. I need a part time office assistant. She is very capable and
works well with the public. Those from within need to understand that I am
the manager and will run things as I see, not as they want. Insubordination
will not be tolerated."
34. On February 15, 2000, at a special meeting, council voted to give Anthony the
permission to hire his wife on a part -time basis.
a. The motion passed by a 3 -2 vote.
35. Deborah Anthony has received net pay of $9.704.35 as a result of her employment
with Washington Township for the period of October 5, 1999, through June 30,
2000.
36. Deborah Anthony received a private pecuniary benefit of $5,204.25 in gross salary
($4,279.25 net) prior to council approving her hiring on February 15, 2000.
Date Gross Amount Net Amount
11/03/99 $1,246.50 $1,031.88
12/07/99 $1,356.75 $1,112.96
01/01/00 $1,309.50 $1,068.82
$1,291.50 $1,065.59
Total $5,204.25 $4,279.25
37. Anthony believed that at all times relevant to the hiring of his wife he was acting
with council's approval and, thus, not in violation of any laws.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, David F. Anthony, hereinafter
Anthony, has been a public employee subject to the provisions of the Public Official and
Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 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 Acts are referred to herein as the "Ethics Act."
The allegation is that Anthony, as township manager for Washington Township,
violated Sections 1103(a) and 1103(f) of the Ethics Act when he used the authority of his
office for the private pecuniary benefit of himself and a member of his immediate family
when he participated in decisions of the township to hire his wife to a part -time position to
the township, including setting salary, duties and work schedule.
Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is
prohibited from engaging in conduct that constitutes a conflict of interest. 65 Pa.C.S.
§1103(a).
The term "conflict of interest" is defined under Act 93 of 1998 as follows:
Section 2. 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. "Conflict" or "conflict of interest" does not
include an action having a de minimis economic impact or
Anthony, 00- 005 -C2
Page 7
which affects to the same degree a class consisting of the
general public or a subclass consisting of an industry,
occupation or other group which includes the public official or
public employee, a member of his immediate family or a
business with which he or a member of his immediate family is
associated.
65 Pa.C.S. §1102.
Section 1103(a) of the Ethics Law 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.
Section 1103(f) of Act 93 of 1998 provides:
Section 3. Restricted activities
(f) No public official or public employee or his
spouse or child or any business in which the person or his
spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with which
the public official or public employee is associated or any
subcontract valued at $500 or more with any person who has
been awarded a contract with the governmental body with
which the public official or public employee is associated,
unless the contract has been awarded through an open and
public process, including prior public notice and subsequent
public disclosure of all proposals considered and contracts
awarded. In such a case, the public official or public employee
shall not have any supervisory or overall responsibility for the
implementation or administration of the contract. Any contract
or subcontract made in violation of this subsection shall be
voidable by a court of competent jurisdiction if the suit is
commenced within 90 days of the making of the contract or
subcontract.
65 Pa.C.S. §1103(f).
Section 1103(f) specifically provides in part that no public official /public employee or
spouse or child or business with which he or the spouse or child is associated may enter
into a contract with his governmental body valued at five hundred dollars or more or any
subcontract valued at five hundred dollars or more with any person who has been awarded
a contract with the governmental body with which the public official /public employee is
associated unless the contract is awarded through an open and public process including
prior public notice and subsequent public disclosure.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are reproduced above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
Since October of 1997, Anthony has served as the Manager for Washington
Township (Township), a second class township with a council comprised of five members
and a manager who serves as the chief executive.
Anthony, 00- 005 -C2
Page 8
In September 1998, council passed a motion to approve the hiring of a part -time
person to work in the township office due to the anticipated resignation of a township
employee. After the township employee terminated service, an individual was hired as a
replacement. In the spring of 1999, the mayor suggested to Anthony that he hire his
spouse for the part -time office assistant position. Anthony declined because his spouse
was employed at that time. However, Anthony's spouse became furloughed from her
position in June 1999 and in September 1999 another township employee terminated
service. During a budget meeting in September 1999, members of council and Anthony
discussed the filling of the office assistant position but council did not vote on the matter.
Effective October 5, 1999, Anthony hired his spouse, who remained furloughed from
her prior employment, to the part -time office position with the township. Anthony hired his
spouse without an open and public process even though he, on other occasions,
advertised and conducted interviews for employment positions with the township. Anthony
hired his spouse without seeking formal council approval for her employment. Anthony's
spouse was hired at the rate of $9.00 per hour based upon a 32 -hour workweek. Anthony
did not seek or obtain Council approval for his spouse's rate of pay.
Since Anthony as Township Manager is responsible for the submission of township
payroll to council, his submission included payroll for his spouse. In addition, Anthony
signed payroll checks including those issued to his spouse.
After a council member in January 2000 wrote a memorandum questioning the
hiring of Anthony's spouse, Anthony submitted a response to council wherein he stated
that he received the approval from a majority of council and hired his spouse because she
would be someone whom he could trust. At a February 1, 2000, council meeting, Anthony
requested that council take formal action to approve the hiring of his spouse due to a
possible investigation by this Commission but council did not take any action. During a
February 8, 2000, council meeting, Anthony renewed his request for council to take action
to approve the hiring of his spouse. After a motion to approve the hiring of Anthony's
spouse failed, Anthony e- mailed his resignation on the next day. Anthony was then asked
what he would want in order to remain in his township position. Anthony responded in part
that he wanted council to approve the hiring of his spouse as part -time office help.
Thereafter, at a February 15, 2000, meeting, council voted to give Anthony the permission
to hire his spouse on a part -time basis.
Anthony's spouse received net pay of $9,704.35 as a result of her employment with
the township between October 1999 and June 2000. Of the foregoing amount, Anthony's
spouse received $4,279.25 (net) after council's approval of her hiring. Lastly, Anthony
states that he believes the hiring of his spouse by him was done with Council's approval so
as not to be in violation of any laws.
Having highlighted the Stipulated Findings and issues before us, we shall now apply
the Ethics Act to determine the proper disposition of this case.
The parties' Consent Agreement sets forth a proposed resolution of the allegations.
The Consent Agreement proposes that this Commission find that:
a. Anthony violated Section 1103(a) of the Ethics Law as to his actions in relation
to the initial hiring of his spouse to a position of employment with Washington
Township, effective October 5, 1999;
b. Anthony did not violate Section 1103(a) of the Ethics Law in relation to setting
the salary for his spouse in her position of employment with the township as
such salary was based upon an amount authorized by the township board in the
annual budget;
Anthony, 00- 005 -C2
Page 9
c. Anthony did not violate Section 1103(a) Ethics Law as to actions regarding the
February 15, 2000, rehiring of his spouse, as such was effected by the township
board; and
d. Anthony violated Section 1103(f) of the Ethics Law in that there was no open
and public process regarding the hiring of his spouse.
Anthony agrees to pay $4,000 via a payment schedule through this Commission
to the Commonwealth of Pennsylvania within one year of the date of issuance of
this order.
In applying the provisions of the Ethics Act to the above, Anthony used the authority
of office as to the initial hiring of his spouse. But for the fact that he was the manager of
the township, he would not have been in a position to hire his spouse in October 1999.
Such action was a use of authority of office. See, Juliante, Order 809. That use of
authority of office resulted in a pecuniary benefit consisting of the salary that Anthony's
spouse received in her position of employment with the township. Further, the pecuniary
benefit was private because there is no provision in law which would allow a township
manager to hire a member of his immediate family. Lastly, the private pecuniary benefit
inured to Anthony's spouse, who is a member of his immediate family as that term is
defined under the Ethics Act. See, 65 Pa.C.S. §1102. Accordingly, Anthony violated
Section 1103(a) of the Ethics Act when he initially hired his spouse to a position with
Washington Township in October 1999.
Regarding the allegation that Anthony set the salary of his spouse, we find no
violation of Section 1103(a) of the Ethics Act for the reason that the salary was based upon
the amount authorized by council. There was no use of authority of office on the part of
Anthony and, without such use of authority of office, there was no violation of Section
1103(a) of the Ethics Act.
Turning to the allegation regarding the rehiring of Anthony's spouse, we find no
violation of Section 1103(a) of the Ethics Act for the reason that the rehiring was done by
action by the Township Board. Hence, Anthony did not rehire his wife so that there was no
use of authority of office on his part. Consequently, no violation of Section of 1103(a) of
the Ethics Act occurred.
The last allegation involves Section 1103(f) which is the contracting provision of the
Ethics Act. The stipulated facts reflect that Anthony's spouse was hired to a township
position without an open and public process. The salary for that position exceeded $500
per year. We also note that as to the hiring of some other township employees, there was
an open and public process including advertisements and interviews. Accordingly, we find
that Anthony violated Section 1103(f) of the Ethics Act when he initially hired his spouse to
a position with the township, with compensation in excess of $500, when such process was
not an open and public one.
We determine that the Consent Agreement submitted by the parties sets forth the
proper disposition for this case, based upon our review as reflected in the above analysis
and the totality of the facts and circumstances. Accordingly, Anthony is directed to
make payment in the amount of $4,000 through this Commission to the Commonwealth of
Pennsylvania in accordance with a payment schedule not to exceed one year from the
date of issuance of this order. Compliance with the foregoing will result in the closing of
this case with no further action by this Commission. Noncompliance will result in the
institution of an order enforcement action.
IV. CONCLUSIONS OF LAW:
Anthony, 00- 005 -C2
Page 10
1. Anthony, as a Manager in Washington Township, is a public employee subject to
the provisions of Act 93 of 1998.
2. Anthony violated Section 1103(a) of the Ethics Act when he initially hired his
spouse to a position with Washington Township in October 1999.
3. Anthony did not violate Section 1103(a) of the Ethics Act as to the setting of the
compensation for his spouse which was set through action by council.
4. Anthony did not violate Section 1103(a) of the Ethics Act as to the rehiring of his
spouse which was approved by council.
5. Anthony violated Section 1103(f) of the Ethics Act when he initially hired his spouse
to a position with the township with compensation in excess of $500 when such
process was not an open and public one.
In Re: David Anthony
ORDER NO. 1179
File Docket: 00- 005 -C2
Date Decided: 2/26/01
Date Mailed: 3/12/01
1 David L. Anthony, as a Manager in Washington Township, Erie County, violated
Section 1103(a) of the Ethics Act when he initially hired his spouse to a position
with Washington Township in October 1999.
2. Anthony did not violate Section 1103(a) of the Ethics Act as to the setting of the
compensation for his spouse which was set through action by council.
3. Anthony did not violate Section 1103(a) of the Ethics Act as to the rehiring of his
spouse which was approved by council.
4. Anthony violated Section 1103(f) of the Ethics Act when he initially hired his spouse
to a position with the township with compensation in excess of $500 when such
process was not an open and public one.
5. Per the Consent Agreement of the parties, Anthony is directed to make payment in
the amount of $4,000 through this Commission to the Commonwealth of
Pennsylvania in accordance with a payment schedule not to exceed one year from
the date of issuance of this order.
a. Compliance with the foregoing will result in the closing of this case with no
further action by this Commission.
b. Non - compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
DANEEN E. REESE, CHAIR