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HomeMy WebLinkAbout1181 BreneiserIn Re: Craig Breneiser 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- 006 -C2 Order No. 1181 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11, Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998.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. Breneiser, 00- 006 -C2 Page 2 I. ALLEGATION: That Craig Breneiser, a public official in his capacity as a Supervisor for Exeter Township, Berks County, violated the Section 3(a)/1103(a) of the State Ethics Act (Act 9 of 1989 as codified by Act 93 of 1998) when he participated in discussions, actions and votes of the board of supervisors to create a paid position for himself with the township; and when he voted to approve payments to himself. II. FINDINGS: 1. Craig Breneiser served as an Exeter Township Supervisor from January 1993 until resigning in November 1999. a. Breneiser has served as an Exeter Township Auditor since January 10, 2000. 1. Breneiser was appointed to this position by the Exeter Township Board of Supervisors. 2. Exeter Township is a Second Class Township located in Berks County. a. Exeter Township is governed by a five member board of supervisors. 3. Craig Breneiser is employed as Director of Communications for Berks County. a. Breneiser has served in that capacity since October 1987. 4. In 1996, Exeter Township employed a township manager to oversee the day to day activities of the township. a. The position was created by Ordinance. b. In January 1996 Mark Schroyer was employed as the Exeter Township Manager. c. Schroyer also served as the township's Chief Administrative Officer. 5. Mark Schroyer resigned his position of Exeter Township Manager effective July 22, 1996. 6. Following Schroyer's resignation the board of supervisors discussed various options for replacing Schroyer. a. The board was not satisfied with some aspects of Schroyer's performance, including a lack of communication and Schroyer's failure to keep board members fully informed of developments in the township. 7 One of the options for replacing Schroyer discussed by the board was dividing the manager duties among the supervisors. a. Supervisor Gary Cuppels advocated each supervisor serving as a department head of various township departments. 1. Supervisors would serve as liaisons between the board and township departments. Breneiser, 00- 006 -C2 Page 3 8. Between the time that Schroyer resigned on July 22, 1996, and January 1997 the members of the board of supervisors discussed ways the department head duties could be assigned. a. One option advocated by Gary Cuppels was assigning supervisors to head various departments based on individual Supervisors' interests and expertise. 1. Breneiser was interested in directing the Public Safety and Human Resources Department. b. Craig Breneiser participated in discussions regarding supervisors serving as department heads. c. The discussions that took place did not occur during any public meetings of the board between July 1996 and January 1997. 9. In January 1997 a list of the various township departments and the name of the supervisor who would serve as department heads was developed. 10. During the January 13, 1997, Board of Supervisors regular meeting action was taken by the board to appoint individual supervisors as directors of various township departments. a. A motion was made by Supervisor Craig Breneiser and seconded by Gary Cuppels to appoint the supervisors as temporary employees with appropriate salaries to be set by the township board of auditors in accordance with the Second Class Township Code as follows: Linda Buler: Director of Administration, Parks & Recreation Gary Cuppels: Director of Engineering and Highway Maintenance Craig Breneiser: Director of Public Safety and Human Resources Michelle Kircher: Director of Code Enforcement and Water Lachlan MacBean: Director of Waste Water Treatment b. The motion was approved by a 5 to 0 vote. 11. On January 20, 1997, the board unanimously approved a motion by Cuppels and seconded by Breneiser to adopt the Director of (Department /Service) job description, which included the following: General Definition: A director is assigned to provide liaison and coordination between a limited scope of Township agencies, services, departments and personnel and the Board of Supervisors. Assistance is provided in planning, implementing and maintaining the operations that fall within the assigned limits of the directorship. A director will work both independently and in concert with managers and personnel to accomplish the responsibilities within his scope of authority. Supervision Received: A director is responsible solely to the Board of Supervisors. Essential Duties: Breneiser, 00- 006 -C2 Page 4 • Plan, organize and direct activities in one (and occasionally more) of the following areas of Township operations. Administration, Parks & Recreation Codes Enforcement & Water Engineering & Highway Maintenance Public Safety & Human Services Waste Water Treatment • Serve as advisor and liaison between the Board of Supervisors and the assigned areas of operation. • Assist with the financial management and planning for departments and programs within the assigned areas of operation. • Meet with appropriate personnel, agencies, groups, etc. and work independently to develop and maintain programs intended for the benefit of the Township and its residents. • Perform other job-related duties as required or assigned within the assigned area of operation. Experience: The Board of Supervisors will consider a combination of education, training, experience and interest in the assignment of areas of operation to a director. Knowledge: • Understanding of the Second Class Township Code with respect to its effect and impact on the area of assigned operations. • Familiarity with applicable federal, state and local laws, regulations and policies with respect to their effect and impact on the area of assigned operations. • Knowledge of sound management practices and understanding of Township policies and programs. Abilities: • Ability to communicate with a diverse group of people. • Ability to speak, read and write English clearly and understandably. • Ability to work independently in the development of assigned tasks. • Able to perform efficiently under pressure. • Excellent oral and written communication skills. • Available for service /consultation on an irregular, but continuous, basis. 12. During the board of supervisors' reorganization meeting of January 5, 1998, members of the board of supervisors were reappointed to the various director positions. Breneiser, 00- 006 -C2 Page 5 a. DIRECTOR OF ADMINISTRATION and PARKS /RECREATION MOTION by Mr. Breneiser, seconded by Mr. Cuppels to appoint Linda K. Buler as Director of Administration and Parks & Recreation for Exeter Township for the year 1998. Motion carried with Mrs. Buler, Mr. Breneiser, Mrs. Kircher and Mr. Cuppels voting in favor. b. DIRECTOR OF HUMAN RESOURCES and EMERGENCY SERVICES MOTION by Mr. Cuppels, seconded by Mrs. Kircher to appoint Craig S. Breneiser as Director of Human Resources and Emergency Services for Exeter Township for the year 1998. Motion carried with Mrs. Buler, Mr. Breneiser, Mrs. Kircher and Mr. Cuppels voting in favor. c. DIRECTOR OF ENGINEERING and HIGHWAYS MOTION by Mr. Breneiser, seconded by Mrs. Kircher to appoint Gary T. Cuppels as Director of Engineering and Highways for Exeter Township for the year 1998. Motion carried with Mrs. Buler, Mr. Breneiser, Mrs. Kircher and Mr. Cuppels voting in favor. d. DIRECTOR OF WASTEWATER TREATMENT MOTION by Mr. Breneiser, seconded by Mr. Cuppels to appoint Lachlan MacBean as Director of Wastewater Treatment for Exeter Township for the year 1998. Motion carried with Mrs. Buler, Mr. Breneiser, Mrs. Kircher and Mr. Cuppels voting in favor. e. DIRECTOR OF CODE ENFORCEMENT AND WATER QUALITY MOTION by Mr. Breneiser, seconded by Mr. Cuppels to appoint Michelle Kircher as Director of Code Enforcement and Water Quality for Exeter Township for the year 1998. Motion carried with Mrs. Buler, Mr. Breneiser, Mrs. Kircher and Mr. Cuppels voting in favor. 13. In March 1998 the duties of department directors were increased to include executing contracts pertaining to their respective departments. a. A motion expanding the duties was approved at the March 23, 1998, board meeting upon a motion by Breneiser and a second by Cuppels. 14. Members of the board of supervisors were reappointed to various director positions during the January 4, 1999, reorganization meeting as follows: DIRECTOR OF ADMINISTRATION and PARKS /RECREATION MOTION by Mr. Cuppels, seconded by Mrs. Kircher to appoint Linda K. Buler as Director of Administration and Parks & Recreation for Exeter Township for the year 1999. Motion carried with Ms. Buler, Mr. Breneiser, Mrs. Kircher and Mr. Cuppels voting in favor. DIRECTOR OF HUMAN RESOURCES AND EMERGENCY SERVICES MOTION by Mr. Cuppels, seconded by Mrs. Kircher to appoint Craig S. Breneiser as Director of Human Resources and Emergency Services for Exeter Township for the year 1999. Motion carried with Ms. Buler, Mr. Breneiser, Mrs. Kircher and Mr. Cuppels voting in favor. DIRECTOR OF ENGINEERING AND HIGHWAYS MOTION by Mr. Breneiser, seconded by Mrs. Kircher to appoint Gary T. Cuppels as Director of Engineering and Highways for Exeter Township for the year 1999. Motion carried with Ms. Buler, Mr. Breneiser, Mrs. Kircher and Mr. Cuppels voting in favor. Breneiser, 00- 006 -C2 Page 6 DIRECTOR OF WASTEWATER TREATEMENT MOTION by Mr. Cuppels, seconded by Mrs. Kircher to appoint Lachlan MacBean as Director of Wastewater Treatment for Exeter Township for the year 1999. Motion carried with Ms. Buler, Mr. Breneiser, Mrs. Kircher and Mr. Cuppels voting in favor. DIRECTOR OF CODE ENFORCEMENT AND WATER QUALITY MOTION by Mr. Breneiser, seconded by Mr. Cuppels to appoint Michelle P. Kircher as Director of Code Enforcement and Water Quality for Exeter Township for the year 1999. Motion carried with Ms. Buler, Mr. Breneiser, Mrs. Kircher and Mr. Cuppels voting in favor. 15. Supervisor Craig Breneiser resigned effective immediately from the board during the November 15, 1999, supervisors meeting. a. The board appointed Deborah Fatora, Breneiser's opponent, in the November 1999 general election to replace him. 16. Prior to January 4, 2000, Solicitor Hoffert never advised board members that it would be a conflict of interest to vote for their appointment to director positions. a. Hoffert was not asked to give a legal opinion regarding the Ethics Act prior to initial appointments to the director positions on January 10, 1997. b. Hoffert was consulted about the propriety of the director positions prior to the approval. 1. Hoffert's advice to the board of supervisors was that their actions were permissible pursuant to provisions of the Second Class Township Code. 17. The appointments of township supervisors to the director positions was again discussed by the board of supervisors during the January 4, 2000, reorganization meeting. a. Cuppels' motion, seconded by Kircher to retain Linda K. Buler as Director of Administration and Parks & Recreation, Gary T. Cuppels as Director of Engineering & Highways, Michelle P. Kircher as Director of Code Enforcement and Water Quality, Lachlan MacBean as Director of Wastewater Treatment and Police and to appoint Deborah D. Fatora as Director of Community Relations and Fire /Ambulance Services for Exeter Township for the year 2000 was carried with Buler, Kircher, Cuppels and Fatora voting in favor. MacBean was absent from the meeting. b. Breneiser was not on the board of supervisors at this time. 18. The township board of auditors annually approved compensation for members of the Exeter Township Board of Supervisors employed by the township. a. Prior to 1997 board members were employed as laborers. b. The auditors approved compensation for members of the board of supervisors working part -time, as laborers for emergencies only. c. The board of auditors also set a salary for supervisor Michelle Kircher serving as landfill inspector. 19. On January 14, 1997, the board of supervisors directed a letter to the township Breneiser, 00- 006 -C2 Page 7 auditors requesting compensation be set for supervisors employed in the various director positions. a. The supervisors suggested compensation at $20 /hour, not to exceed $600.00 /month. 20. The township board of auditors took action approving compensation for supervisors working as Directors of Departments as follows: a. January 17, 1997: $20.00 /hour, cap of $400.00 /month, with the stipulation that auditors meet in six months to review the cap. b. June 25, 1997: $20.00 /hour, cap of $400.00 /month with the exception of a supervisor being called for special projects (labor negotiations, court preparation, etc.) for which the cap may be exceeded by an additional sum not to exceed $200.00 /month. c. January 6, 1998: $20.00 /hour, cap of $400.00 /month d. January 15, 1999: $20.00 /hour, cap of $400.00 /month 21. In 1997, following his appointment as Director of Public Safety and Human Resources, Craig Breneiser began submitting time sheets on a bi- monthly basis documenting hours worked as department head. a. These time sheets completed between January 1, 1997, and December 31, 1999, were used to determine compensation paid to Breneiser. b. Time sheets disclosed hours worked and duties performed. c. The time sheets were not subject to review or approval by any other member of the board. d. Breneiser was the only member of the board to disclose on time sheets specific duties performed. 22. Payments were issued by Exeter Township to Craig Breneiser based on time sheets submitted by Breneiser. 23. Between January 1997 and October 1999 payments were issued to Craig Breneiser for director duties totaling $9,559.40 [sic]. a. 1997: $3,263.40 b. 1998: $3,779.69 c. 1999: $2,516.32 24. Craig Breneiser, in his capacity as an Exeter Township Supervisor, was one of two signatures on checks issued to him for services performed as Director of Public Safety and Human Resources. Date Check No. Amount 02/27/97 27132 $ 88.55 05/22/97 29839 $168.24 Breneiser, 00- 006 -C2 Page 8 07/03/97 28191 $ 70.84 07/17/97 28318 $132.82 11/16/97 29220 $ 97.40 04/23/98 30528 $ 53.13 05/07/98 30643 $132.82 10/08/98 31930 $159.39 Date Check No. Amount 11/05/98 32139 $228.43 11/19/98 32240 $132.82 12/17/98 32484 $132.82 25. Between January 1997 and November 1999 payments made by the township to Craig Breneiser totaled $9,559.40 [sic]. III. DISCUSSION: At all times relevant to this matter, the Respondent, Craig Breneiser, hereinafter Breneiser, has been a public official 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 issue is whether Breneiser violated Section 3(a)/1103(a) of the Ethics Act when he participated in actions of the Board of Supervisors to create a compensated Township position for himself; and when he voted to approve payments to himself as Department Director. Section 3/1103. Restricted activities (a) Conflict of interest. — No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. §403(a)/65 Pa.C.S. §1103(a). The term "conflict of interest" is defined under Act 9 of 1989/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 which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. §402/65 Pa.C.S. §1102. Breneiser, 00- 006 -C2 Page 9 Section 3(a)/1103(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. 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. Breneiser served as a member of the Board of Supervisors of Exeter Township from January 1993 until he resigned on November 15, 1999. The Board consists of five Supervisors. In 1996 and 1997, Breneiser and the other Board members discussed the possibility of Supervisors serving as Department Directors. At the January 13, 1997 regular meeting, Breneiser made a motion to appoint individual Supervisors to head various Township departments. Breneiser's motion included his appointment as Director of Public Safety and Human Resources. The motion was approved by a vote of 5 to 0. In 1998 and 1999, the Board appointed Breneiser to the position of Director of Human Resources and Emergency Services. In both years, Breneiser participated in the vote to approve his appointment /reappointment to that position. For the years 1997, 1998 and 1999, the Township Auditors set the compensation of Supervisors working as Department Directors at $20 /hour with a cap of $400 /month based upon a maximum of 20 hours /week. In addition, the Auditors established an additional cap of $200 in June of 1997 for any special projects that a Supervisor would be required to undertake. In 1997, 1998 and 1999, Breneiser submitted timesheets to the Township documenting the hours he worked as a Department Director and, as a Township Supervisor, co- signed checks issued to him for his services as a Department Director. Between January 1997 and November 1999, Breneiser received payments from the Township totaling $9,559.41. 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 an unintentional violation of Section 3(a) of the Ethics Act in relation to the allegation that Breneiser participated in discussions and votes of the Board resulting in his appointment to a compensated Department Director position, and co- signed checks authorizing payments to himself; and that Breneiser pay $500 within 30 days of the issuance of this Order through this Commission to Exeter Township. As to Section 3(a)/1103(a) of the Ethics Act, Breneiser participated in Board discussions regarding Supervisors serving as Department Directors which resulted in his appointment to the compensated positions of Director of Public Safety and Human Resources and Director of Human Resources and Emergency Services. Further, Breneiser made the motion and /or voted to appoint /reappoint himself to those positions in 1997, 1998 and 1999. Finally, Breneiser co- signed checks issued to himself for his services as Department Director. Such actions of Breneiser were uses of authority of office. See, Juliante, Order 809. The uses of authority of office by Breneiser resulted in a private pecuniary benefit to himself in the amount of $9,559.41. Accordingly, Breneiser Breneiser, 00- 006 -C2 Page 10 unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he participated in Board discussions regarding Supervisors serving as Department Directors which resulted in his appointment to the compensated positions of Director of Public Safety and Human Resources and Director of Human Resources and Emergency Services, and co- signed checks issued to himself for his services as Department Director. As to the Stipulation of Findings and Consent Agreement, we believe that the Consent Agreement is the proper disposition of this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, Breneiser is directed to make a payment of $500 within 30 days of the issuance of this Order through this Commission to Exeter Township. Compliance with the foregoing will result in the closing of this case with no further action. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Breneiser, as a Supervisor of Exeter Township, is a public official subject to the provisions of Act 9 of 1989/Act 93 of 1998. 2. Breneiser unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he participated in Board discussions and actions regarding Supervisors serving as Department Directors, which resulted in his appointment to the compensated positions of Director of Public Safety and Human Resources and Director of Human Resources and Emergency Services; and when he co- signed checks issued to himself for his services as Department Director. In Re: Craig Breneiser ORDER NO. 1181 File Docket: 00- 006 -C2 Date Decided: 2/26/01 Date Mailed: 3/12/01 1 Breneiser, as a Supervisor of Exeter Township, unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he participated in discussions and actions of the Board regarding Supervisors serving as Department Directors, which resulted in his appointment to the compensated positions of Director of Public Safety and Human Resources and Director of Human Resources and Emergency Service; and when he co- signed checks issued to himself for his services as Department Director. 2. As per the Consent Agreement, Breneiser is directed to make payment of $500 within 30 days of the date of issuance of this Order through this Commission to Exeter Township. 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