Loading...
HomeMy WebLinkAbout1198 GallenIn Re: Michael Gallen 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 98- 059 -C2 Order No. 1198 5/15/01 5/30/01 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 held. The record is complete. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. §1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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 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. Gallen, 98- 059 -C2 Page 2 I. ALLEGATION: That Michael Gallen, a public official in his capacity as a Cumru Township Commissioner, Berks County, violated Section 3(a) of the Ethics Law (Act 9 of 1989) when he used the authority of his office for the private pecuniary benefit of a member of his immediate family and /or a business with which a member of his immediate family is associated by participating in discussions and actions leading to his father's insurance agency being contracted with to provide insurance for the township. 65 P.S. §403(a). Section 3. Restricted activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 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. II. FINDINGS: A. Pleadings 1 Michael J. Gallen ( "Gallen ") has served as a Cumru Township, Berks County, Commissioner from January of 1996 to the present. a. Gallen has served as Vice President of the Board of Commissioners since January of 1997. 2. Gallen has served as liaison between the Board of Commissioners and the township administration since January of 1998. 3. Township Business Manager Shea report[ed] to the entire board of commissioners, including Commissioner Gallen. 4. Joseph J. Gallen is the father of Cumru Township Commissioner Michael J. Gallen. 5. Gallen Insurance was incorporated in the Commonwealth of Pennsylvania on November 1, 1976. 6. Ann Moll, Joseph J. Gallen's daughter and Michael J. Gallen's sister, is President of Gallen, 98- 059 -C2 Page 3 Gallen Insurance, Incorporated. a. Mark Gallen, David Gallen and Joseph Gallen are brothers of Michael J. Gallen and are employed by Gallen Insurance, Incorporated. 7 Cumru Township purchased insurance coverage through the Fioravante Insurance Agency from 1967 to April of 1998. a. Insurance purchased through Fioravante Agency included municipal liability and workmen's compensation, vehicle and property insurance. b. Harleysville Insurance Company provided insurance coverage to the township through the Fioravante Agency. 8. Cumru Township did not generally seek bids or proposals on an annual basis for the insurance provided by the Fioravante Agency. a. The insurance contracts were renewed annually with Fioravante Insurance Agency. 9. In March of 1997, the Cumru Township Board of Commissioners decided to seek requests for proposals for the insurance coverage. 10. On April 1, 1997, representatives of the following insurance companies made presentations to the Board of Commissioners at a commissioners' meeting: a. Mast and Moyer b. Hart, Incorporated c. Gallen Insurance, Incorporated d. Fioravante Insurance Agency. 11. Joseph J. Gallen made the presentation on behalf of Gallen Insurance, Incorporated. 12. Joseph J. Gallen, in his presentation to the board of commissioners requested the board obtain an appraisal of township assets by a professional appraisal service. a. Chairman Stanziola agreed the township should comply with Joseph J. Gallen's request. 13. On April 9, 1997, the board of commissioners voted to renew the insurance contract with the Harleysville Insurance Company through the Fioravante Insurance Agency. a. Commissioner Gallen excused himself from the board meeting during the insurance discussions and vote. 14. A Gallen Insurance Agency letter dated February 10, 1998, was directed to township manager William Shea. 15. [The] February 10, 1998, letter specifically requested the following information from the township in order to submit a proposal: a. 1998 - Annual Budget Report Gallen, 98- 059 -C2 Page 4 b. Current claim report for all lines of coverage, at least 3 years is needed c. Recent professional property appraisal report d. Payroll by Workers' Compensation Classification for upcoming policy period e. Current vehicle and driver schedule. 16. During the week of February 22, 1998, Shea discussed the request with Board of Commissioners President Ray Henry. a. Henry informed Shea that the township did not intend to seek proposals for the township insurance coverage in 1998. b. Henry directed Shea not to respond to Joseph Gallen's letter and to file the document in township files. 17. On March 12, 1998, Commissioner Gallen, in a letter faxed to Business Manager Shea and office secretary Elizabeth Turner from his company's fax machine (Mifflin Valley Reflective Apparel), stated he needed the following information concerning the township's insurance as soon as possible: a. b. c. d. e. 1998 - Annual Budget Report Current claim report for all lines of coverage, at least 3 years is needed Recent professional property appraisal report Payroll by Workers' Compensation Classification for upcoming policy period Current vehicle and driver schedule 18. Gallen directed Shea and Turner to contact him by telephone when the information was ready. 19. Shea delivered the requested documentation to Commissioner Gallen at his place of business, Mifflin Valley Reflective Apparel, on March 13, 1998. 20. Commissioner Gallen contacted Turner by telephone and asked her to obtain the cost to the township of the Harleysville Insurance Company's premiums through the Fioravante Insurance Agency for 1998, as the policy was due to expire on April 13, 1998 (Answer and New Matter to Commission's Investigative Complaint /Findings Report, Paragraph 36). 21. Prior to the April 13, 1998, Public Meeting, a township administrative staff member provided Commissioner Gallen with the Fioravante Agency's 1998 premium figures (Answer and New Matter to Commission's Investigative Complaint/Findings Report, Paragraph 40). 22. On March 31, 1998, Gallen Insurance forwarded a proposal to Cumru Township for insurance coverage for the period of April 13, 1998, to April 13, 1999. 23. The proposal presented by Gallen Insurance indicated the premium cost to the township would be $127,000.00. a. The cost was subsequently lowered, after the contract was awarded, to $110,000.00 due to a reduction in the experience modification rate. Gallen, 98- 059 -C2 Page 5 24. On Wednesday, April 8 [sic], 1998, Commissioner Gallen met with Business Manager Shea and Township Commissioner Carol Foster at the township building to review the proposal submitted by the Gallen Agency. a. Foster also served as a liaison to the township administration. 25. The board of commissioners had not made any decision to review or solicit quotes for the township insurance coverage. 26. At the April 13, 1998, Special Meeting, Commission Gallen reported to the Commissioners that the current insurance policy through Fioravante Insurance Agency had a proposed premium of $197,093.00. a. Commissioner Rowley noted the premium of $197,093.00 for the policy through the Fioravante Insurance Agency was an increase of $15,000 over the previous year's premium. Commissioner Gallen reported that the Gallen Insurance quotation was in the amount of $127,000.00. Coldren also noted that based on the figures presented by Commissioner Gallen the cost of the policy through the Fioravante Insurance Agency would amount to a difference of $13,000 or $14,000 more than the proposal presented by the Gallen Insurance Company. b. c. 27. During the April 13, 1998, Special Meeting, Board President Henry suggested the Gallen Insurance Agency proposal be reviewed and compared to the current policy. a. b. The board voted to accept the proposal from Gallen Insurance by a vote of 3 to 0. Commissioner Gallen abstained from the vote. c. Commissioner Rowley did not participate in the vote as he had to leave the meeting for a previous engagement. 28. The township did not advertise that it was seeking proposals for the 1998 -1999 insurance coverage. 29. David Fioravante appeared before the Cumru Township Board of Commissioners at their April 21, 1998, regularly scheduled meeting. a. Fioravante protested the [board's] handling of the insurance matter and of [sic] the board's failure to give him an opportunity to present a proposal for the current year. 30. Fioravante submitted a proposal for insurance coverage with Harleysville Insurance Company containing a premium cost of $146,395 with a potential rebate of $29,883.00. 31. Fioravante was given the opportunity to present his proposals on May 7, 1998, at a meeting with Shea, Turner, Board President Henry and Board Member Rowley. a. At that time, the decision had already been made to award the insurance contract to Gallen Insurance Agency. Gallen, 98- 059 -C2 Page 6 32. Gallen Insurance wrote the insurance policy for Cumru Township through the Saint Paul Insurance Company and the Cincinnati Insurance Company from [which Gallen Insurance] received $14,373.12 in commissions and fees since 1998. a. Workmen's Compensation: 1998: $2,620.59 1999: $2,135.69 $4,756.28 b. Package: Property, vehicles 1998: $4,597.12 1999: $4, 575.35 $9,172.47 c. Municipal Liability 1998: $ 95.16 1999: $ 99.91 $195.07 d. EDP 1998: 1999: $130.80 $119.10 $249.90 [There is a $.60 disparity in the figures above, which disparity is insignificant.] B. Stipulations Filed 2/5/01 (Regarding Facts) 33. Michael J. Gallen ( "Gallen ") has served as Cumru Township, Berks County, Commissioner from January 1996 until the present. 34. Gallen has served as Vice President of the Board of Commissioners since January 1997. 35. In January 1998, Gallen and fellow Commissioner Carol Foster were appointed to serve as liaison Commissioners between the Board of Commissioners and the Township's administrative department. 36. Commissioners Gallen's and Foster's responsibility as liaisons to Township administration included maintaining contact with the Township administrative employees, including those handling insurance matters. 37. William Shea [was] the Township Manager and report[ed] to the entire Board of Commissioners. 38. Elizabeth Turner, now retired, at all material times relevant hereto, was employed by the Township and was supervised by William Shea. Ms. Turner served as Assistant Secretary. a. All Commissioners, including Gallen, had ultimate supervisory authority over township employees. Gallen, 98- 059 -C2 Page 7 39. Joseph J. Gallen is the father of Cumru Township Commissioner Michael J. Gallen. At all times relevant hereto, Joseph Gallen was the majority shareholder of the Gallen Insurance Agency. Joseph Gallen has been in the business of insurance since 1957 and the agency incorporated in Pennsylvania on November 1, 1976. The Gallen Agency is a licensed agency and brokerage that sells both personal and commercial lines of property and casualty insurance, accident and health, life and annuity and surety bonds. 40. Ann Moll is the daughter of Joseph J. Gallen and the sister of Michael J. Gallen. She has held the position of President of Gallen Insurance, Inc., since 1988. 41. At all times relevant for purposes of this proceeding, Donald Moll, Ann's husband, was the Vice President of the Gallen Agency. 42. It is admitted that Mark Gallen, David Gallen and Joseph Gallen are brothers of Michael J. Gallen and at all times relevant for purposes of this proceeding were employed by Gallen Insurance, Inc. 43. Michael J. Gallen is not employed by, nor does he have any ownership interest in Gallen Insurance, Inc. 44. Cumru Township purchased insurance from the Fioravante Insurance Agency for a number of years until April 1998. The insurance included municipal liability and workers' compensation, vehicle and property insurance. 45. Cumru Township did not seek bids on proposals on an annual basis for insurance, historically provided by the Fioravante Insurance Agency. 46. Competitive bids for insurance were sought approximately three (3) times from 1980 until 1997. 47. In response to the 1997 solicitation for bids, four (4) insurance companies made presentations to the Board of Commissioners on April 1, 1997. Those four (4) companies were: Mast & Moyer; Hart, Inc.; Gallen Insurance, Inc.; and Fioravante Insurance Agency. 48. David Fioravante made the presentation on behalf of Fioravante Insurance Agency. The Fioravante Agency's 1997 proposal was in the amount of $182,982, with a potential maximum "dividend" of $54,627 for unused workers' compensation coverage. 49. At a special meeting of the Board on April 9, 1997, at which meeting the Commissioners voted to accept the Fioravante Insurance package, Michael J. Gallen abstained from voting and did not participate in the discussions. 50. Joseph Gallen, in his 1997 presentation to the Board of Commissioners, requested the Board obtain an appraisal of Township assets from a professional appraisal service and the Commissioners agreed to do so. 51. Joseph Gallen's February 10, 1998 letter specifically requested the following information from the Township to assist with submission of a proposal: a. 1998 Annual Budget Report; b. Claim Reports for all lines of coverage, for at least three (3) years; c. Recent professional property appraisal report; Gallen, 98- 059 -C2 Page 8 d. Payroll by workers' compensation classification for upcoming policy; and e. Current vehicle and driver's schedules. 52. Michael J. Gallen and Gallen Insurance, Inc. both reside within Cumru Township. 53. On March 12, 1998, Michael Gallen faxed a letter, on his Company's stationary, to Township Manager Shea and Elizabeth Turner requesting the following information: a. 1998 Annual Budget Report; b. Claim Reports for all lines of coverage, for at least three (3) years: c. Recent professional property appraisal report; d. Payroll by workers' compensation classification for upcoming policy; and e. Current vehicle and drivers' schedules. 54. The policies of insurance, which were in effect through the Fioravante Agency, were due to expire on April 13, 1998. 55. On March 31, 1998, Don Moll of the Gallen Agency submitted a bid for insurance to Cumru Township Manager William Shea. 56. The premiums for Harleysville's policies which were written by the Fioravante Agency for the upcoming year were not provided by the Fioravante Agency to Township Secretary Turner or William Shea until April 6, 1998. 57. At the time that it submitted its proposal, the Gallen Agency did not have access to the Fioravante Agency's projected premium information for 1998, in the preparation of the Gallen Agency insurance proposal for Cumru Township for 1998. 58. The March 31, 1998 proposal submitted by the Gallen Agency stated the annual premium to be $127,000. 59. The premium was subsequently lowered after the contract was awarded to $110,000 due to a reduction in the experience modification rate. 60. On April 8 [sic], 1998, Commissioners Gallen and Foster, as liaison commissioners to the administrative department, met with Business Manager Shea at the Township building to discuss the March 31, 1998, proposal submitted by the Gallen Agency. 61. A special meeting of the Township Commissioners was set for April 13, 1998, to discuss the insurance coverages. 62. At the April 13, 1998, Special Meeting, Board President Henry asked the Township Solicitor to compare the proposal from the Gallen Agency with the current policy of the Fioravante Agency. 63. Township Solicitor Michael Setley compared the proposal with the current policy and made a detailed oral report to the Board. 64. Attorney Setley concluded that the Gallen Insurance proposal provided approximately equivalent coverages with the exception of a difference in the amount of umbrella liability coverage. Gallen, 98- 059 -C2 Page 9 65. Attorney Setley contacted the Gallen Agency to request a premium quote to raise the limit on the umbrella policy to equal that of the Fioravante policy. The additional premium was reported by Attorney Setley to be $1,000, for a total premium of $128,000 by the Gallen Agency. 66. The Commissioners voted 3 -0 to accept the Gallen Agency proposal for insurance for the period April 13, 1998, until April 13, 1999. 67. Commissioner Gallen abstained from voting. 68. Commissioner Rowley had to leave the special meeting early and was unable to vote. 69. David Fioravante appeared before the Township Commissioners at the April 21, 1998, regular meeting and protested the Commissioners' decision. 70. The Gallen Agency insurance policy for Cumru Township was with the St. Paul Insurance Company and the Cincinnati Insurance Company, from [which] the Gallen Agency has received $14,373.12 in commissions for the period of April 1998 to October 6, 1999. 71. The Investigative Division of the State Ethics Commission received a signed, sworn Complaint alleging that Michael Gallen violated provisions of the State Ethics Act (Act 9 of 1989). 72. Upon review of the Complaint the Investigative Division initiated a preliminary inquiry on August 27, 1998. 73. The preliminary inquiry was completed within sixty days. 74. On October 21, 1998, a letter was forwarded to Michael Gallen 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 041 456 148. b. Attempts made to serve the notice by the postal service on 10/23/88 [sic] and 10/28/98 were unclaimed. c. The notice was returned to the Investigative Division of the State Ethics Commission on November 7, 1998. d. The letter was re -sent by certified mail no. P 487 031 942 on November 13, 1998, to Michael Gallen's business address. e. The domestic return receipt bore the signature of T. Ernest with a delivery date of November 16, 1998. 75. On February 12, 1999, the Executive Director of the State Ethics Commission filed an application for a ninety -day extension of time to complete the Investigation. 76. The Commission issued an order on February 26, 1999, granting the ninety -day extension. Gallen, 98- 059 -C2 Page 10 77. On May 8, 1999, the Executive Director of the State Ethics Commission filed an additional application for a ninety -day extension of time to complete the Investigation. 78. The Commission issued an order on May 17, 1999, granting the ninety -day extension. 79. Periodic notice letters were forwarded to Michael Gallen in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 80. The Investigative Complaint was mailed to the Respondent on October 15, 1999. 81. The advertisement of the Special Meeting on April 13, 1998, at 8:00 a.m. appeared in the Reading Eagle Times on Saturday, April 11, 1998. 82. Henry, Coldren and Rowley did not review or see the Gallen Insurance proposal prior to the April 13, 1998, Special Meeting. 83. After April 21, 1998, Fioravante submitted a proposal for insurance coverage with Harleysville Insurance Company containing a premium cost of $146,395 with a maximum potential rebate of $29,883.00. a. Fioravante also submitted a proposal for insurance coverage with Employees Mutual Casualty Company containing a premium cost of $119,958.00 with a maximum potential rebate of $17,107.00. 84. Fioravante was given the opportunity to present his proposals on May 7, 1998, at a meeting in the township building with Business Manager Shea, Office Supervisor Turner, Board President Henry and Board Member Rowley. Filed 2/26/01 (Regarding Testimony) 85. The parties agree that if called to testify at hearing, Timothy Rowley, an adult individual, would testify as follows: a. I am currently a Township Commissioner for Cumru Township, Berks County, Pennsylvania and have been serving as such since 1998. b. I was first elected Township Commissioner and took office on January 5, 1998, at the Cumru Township Board of Commissioners Reorganization Meeting. c. In 1998, Township Commissioner Carol Foster was newly elected and Ray Henry was re- elected; both took office at the January 5, 1998, Reorganization Meeting. d. As a primary effort to save Township dollars, it was my intention and the stated intention of the newly elected Commissioners to review the existing contracts and costs for Township professional service providers and replace the same if it would save money for the Township. e. As such, at the January 5, 1998, Reorganization Meeting, a new Township Solicitor, Michael Setley, Esquire and a new Township Engineer, Spotts, Stevens and McCoy, Inc. were appointed. f. These new appointments were effectuated to save money for the Township. Gallen, 98- 059 -C2 Page 11 g. Because of the size of the Township and as a result of the complexity of the issues involved in running the Township, Township Commissioners are appointed to various committees (i.e. public safety, public services and administration /parks and recreation) to serve as liaisons. h. Liaison Commissioners act as fact finders, information gatherers and preliminary investigators with respect to matters arising within the respective liaison departments. The Liaison Commissioners then report the information to the full board of Township Commissioners for review and subsequent action, if any. Due to the number of departments within the Township, the Liaison Commission structure is a more efficient means of maintaining contact with the respective departments and developing facts on which to base decisions; however, Liaison Commissioners are not empowered to act on behalf of the Township with respect to any action which requires a vote of the Board of Commissioners. J. k. I did not attend the April 6[sic], 1998, meeting between Commissioners Gallen, Foster and Township Manager Shea, nor do I have any information about what transpired at that meeting or how the meeting occurred. Upon returning home from vacation in the Bahamas on April 11 or April 12, 1998, I received a voice mail message that stated that because the Township insurance was set to expire on April 13, 1998, a special meeting had been called on April 13, 1998, to address the issue of Township insurance. q. At the January 5, 1998, Reorganization Meeting, I was appointed to serve as one of the public safety Liaison Commissioners and I continue to serve in this role. At the same January 5, 1998, meeting, Carol Foster and Michael Gallen were appointed as the administration /parks and recreation Liaison Commissioners. m. I do not recall whether it was Jeannie Johnston or Carol Foster who left that voicemail message, but it was one or the other of them. n. The April 13, 1998, meeting was scheduled for 8 a.m. to accommodate my schedule because I had previously scheduled trial in Pottsville, Schuylkill County, Pennsylvania, commencing at 9:30 a.m. o At the April 13, 1998, meeting, the Gallen insurance proposal was discussed, and I specifically inquired whether the coverages between the Gallen Agency and the Fioravante Agency were the same. p. The Gallen Agency proposal had the potential to save the Township a minimum of $10,000 per year and quite possibly up to $100,000 a year, if the coverages were equivalent. At the April 13, 1998, meeting, I stated, as reflected in the Minutes of the Meeting, that if the coverages were the same or better, I would vote for the Gallen Agency proposal because it would save the Township money. r. I did not vote on the insurance proposal because I had to leave the meeting before the vote was taken as a result of the aforementioned Court appearance. Gallen, 98- 059 -C2 Page 12 s. I had no conversations or discussions with Mike Gallen other than the discussion which occurred during the April 13, 1998, Special Meeting regarding or in any way concerning the Gallen Agency insurance proposal. t. At no time did commissioner Gallen (or anyone else) solicit or lobby me to change the Township's insurance policies to those proposed by the Gallen Agency. u. At no time did Mr. Gallen or anyone else state to me that the change from the Fioravante Agency to the Gallen Agency was a "done deal." v. The Board of Commissioners' decision to change insurance companies and subsequently appoint the Gallen Agency was strictly made, in my opinion, in an effort to save the township substantial amounts of tax dollars. 86. The parties agree that if called to testify at hearing, Richard Coldren, an adult individual, would testify as follows: a. I am currently a township Commissioner for Cumru Township, Berks County, Pennsylvania, and have been serving as such since 1996. b. In 1998, Township Commissioners Carol Foster and Timothy Rowley were newly elected Commissioners and Ray Henry was re- elected; all three being sworn into office at the January 5, 1998, Board of Commissioners Reorganization Meeting. c. Also at the January 5, 1998, Reorganization Meeting, a new Township Solicitor and new Township Engineer were appointed. d. The new professional appointments were made in an effort to save the Township money on its professional service contracts. e. With the election of the two new Commissioners, it became an overriding objective of the full Board of Commissioners to take affirmative steps to save the Township money. One area of concern involved making certain that the Township's professional service providers were cost effective. f. In fact, I had previously advocated that the Township insurance contract be open for bidding in 1997, because I wanted to be sure that the Township was making good use of taxpayer dollars. The bids received in 1997 were confusing and I was unable to make an informed decision as to the various policies because they were difficult to compare. g. h. As a result of this confusion, the Township simply renewed its insurance contract with the Fioravante Agency in 1997. Due to the time constraints and number of issues that arise as a Township Commissioner, the Commissioners are appointed to serve as liaisons with various departments. These liaisons are appointed to public safety, public services and administration /parks and recreation. Liaison Commissioners simply act as fact finders for the various departments. The Liaison Commissioners then report their findings and information to the full Board of Commissioners for review and subsequent action, if appropriate. Gallen, 98- 059 -C2 Page 13 j. Liaison Commissioners are not permitted to officially act on behalf of the Township, but again, merely serve as preliminary fact finders with respect to matters of interest to the various departments. k. At the January 5, 1998, Reorganization Meeting, I was appointed to serve as one of the Public Services Liaison Commissioners. At the same January 5, 1998, meeting, Carol Foster and Michael Gallen were appointed as the Administration /Parks and Recreation Liaison Commissioners. I did not attend the April 6[sic], 1998, meeting between Commissioners Gallen, Foster and Township Manager Shea, nor do I have any firsthand information about what transpired at that meeting, who said what to whom, or how the meeting occurred. m. I don't recall exactly how I was notified that a meeting had been called for April 13, 1998, but I believe either Jeannie Johnston or Carol Foster notified me of the scheduling. n. I know that the April 13, 1998, Commissioners' meeting was scheduled to accommodate Commissioner Rowley's schedule because he had to be in court that morning. o. Prior to the April 13, 1998, Board of Commissioners meeting, I did not receive, nor did I review the Gallen Agency proposal, but for purposes of casting my vote, I relied upon the Township Solicitor, Michael Setley, Esquire's review of the Gallen Agency proposal and the Fioravante Agency contract. P. q. At the April 13, 1998, meeting, as reflected in the Meeting Minutes, questioned whether the difference between the policies reflected the Fioravante Agency policy that provided a refund based on claims experience. At the April 13, 1998, meeting, I voted in favor of changing the insurance policy from the Fioravante Agency to the Gallen Agency strictly because it would save the Township a substantial sum of money for basically the same coverage. r. I had no conversations or discussions with Mike Gallen, other than the discussion which occurred during the April 13, 1998, Special Meeting, regarding or in any way concerning the Gallen Agency proposal. I am also not aware of any discussions between other Commissioners with regard to this same subject matter before the April 13, 1998, Special Meeting. s. At no time did Commissioner Gallen or anyone else (i.e., other Commissioners or representatives of the Gallen Agency) solicit or lobby me to change the Township's insurance policies to those provided by the Gallen Agency. t. At no time did Mr. Michael Gallen or anyone else state to me that the change from the Fioravante Agency to the Gallen Agency was a "done deal." u. It is my opinion that the Board of Commissioners' decision to change insurance companies from the Fioravante Agency to the Gallen Agency was made in an effort to save the Township money. Gallen, 98- 059 -C2 Page 14 v. On December 22, 1998, I was interviewed by James McGrath as to my knowledge and recollection of the events surrounding the insurance contract and change from the Fioravante Agency to the Gallen Agency. w. I was never shown nor provided a copy of my "statement" as prepared by Mr. McGrath until such time as Kathleen Misturak- Gingrich, Esquire, attorney for Commissioner Gallen, provided me with a copy of the same. x. Upon review of my statement, I noticed an error at page 3, paragraph 7, which reads in pertinent part as follows: Coldren recalled that he made up his mind on the issued based on what Commissioner Michael Gallen said at the meeting. During the interview with Mr. McGrath, I noted that I made up my mind based on what "Mike" said at the meeting. At the time of giving my statement, meant that I based my decision upon what Mike Setley, Esquire, the Township Solicitor, had said at the April 13, 1998, Special Meeting, and not on what Commissioner Mike Gallen had said at that meeting. y. C. Testimon 87. William S. Shea ( "Shea ") served as the township manager of Cumru Township from 1975 to 2000. a. Cumru Township did not solicit proposals for insurance on an annual basis. b. Shea worked with Elizabeth Turner ( "Turner "), the township's Assistant Secretary and Office Supervisor, on township insurance matters. c. In 1998, it was not Shea's intent to solicit proposals for insurance as the township had done in 1997. (1) Shea had not been instructed by the board members to solicit insurance proposals in 1998. (2) Shea felt that it was too soon to solicit proposals again. d. ID -1 is a copy of a Gallen Insurance letter dated February 10, 1998, addressed to Shea (see, Finding 95). (1) Shea received ID -1 on or about February 10, 1998. e. ID -1 requested certain items from the township relative to preparing an insurance proposal for the 1998 -1999 policy period (see, Finding 95 a). (1) Shea /the township had not solicited such a letter from Gallen Insurance. f. When Shea received ID -1, he set it aside temporarily until he could talk to Ray Henry, President of the Cumru Township Board of Commissioners. g. (2) The township had not given any indication that it was going to solicit proposals for insurance in 1998. During the week of February 22, 1998, Shea discussed ID -1 with Henry. Gallen, 98- 059 -C2 Page 15 h. As a result of his conversation with Board President Henry, Shea filed the Gallen Insurance letter (ID -1). The information requested by ID -1 was public information. j. Regardless of the intention of the commissioners as to insurance proposals, Gallen Insurance would have been entitled to the information requested in ID -1. k. ID -2 is a copy of a FAX from Respondent which was received at the township office on March 12, 1998 (see, Finding 96). (1) ID -2 requested the same information that had been requested by ID -1 (see, Finding 96 b). As a result of receiving ID -2, Shea told Turner to get the requested information together for Commissioner Gallen (Respondent). (1) Turner complied with Shea's request. m. Shea did not ask Respondent whether he (Respondent) was requesting the information in his official capacity. n. Shea personally delivered the information requested by ID -2 to Respondent at Respondent's place of business. (1) Shea does not normally personally deliver information to a requestor requesting documents under the Right to Know Law. o. Shea did not charge Respondent for the copies of the requested information. (1) Under the township's Right to Know policy, the township would normally charge private citizens for copies of such information. Shea testified that the fact that Respondent was a township commissioner did play a role in Shea's taking action to respond to Respondent's request for the information (Tr. of 2/6/01 at 78). (1) On direct examination, Shea testified that had it not been Michael Gallen (Respondent) requesting the information, Shea would have responded that the township was not going to supply the information (Tr. of 2/6/01 at 96). (2) On cross - examination, Shea testified that if Respondent had not been a commissioner of Cumru Township, had come to the township offices, and had handed Shea ID -2, Shea would have provided him with the requested information (Tr. of 2/6/01 at 114). p. (1) Shea told Henry that ID -1 had been received, and that based upon the fact that proposals had been solicited in 1997, it seemed like it was too soon to seek proposals again. (2) Henry responded to Shea that the board of commissioners did not intend or desire to receive proposals that year. Shea memorialized Henry's response to Shea by writing it in the upper right -hand corner of ID -1. (3) Gallen, 98- 059 -C2 Page 16 q. (a) This testimony was given in the context of hindsight as to how Shea should have responded to such a request for this publicly available information. (Tr. of 2/6/01 at 113 -114). After Shea had provided to Respondent the items requested in ID -2, Turner indicated that Respondent wanted to obtain what the cost would be for the upcoming insurance from the Fioravante Agency for the period from mid - April of 1998 to mid -April of 1999. r. On April 6, 1998, in a telephone conversation with Fioravante, Shea obtained information regarding the premium for the township insurance through the Fioravante Agency for the period from mid -April of 1998 to mid - April of 1999 . (1) On or about the same day, April 6, 1998, and as a result of that conversation, Shea created the handwritten note in evidence as ID -5. (2) Shea addressed the note to Turner. (3) The note was dated 4/6/98. (4) The note indicates a total premium of $174,093, with a partial breakdown of that premium. Shea gave the note to Turner. (5) s. On April 7, 1998, the day after Shea obtained the insurance premium information from David Fioravante, Respondent and Commissioner Foster met with Shea in Shea's office in the township building. (1) The meeting pertained to the township's insurance and the calling of a meeting relative to the insurance. (2) Both Respondent and Commissioner Foster actively participated in the meeting. Shea indicated to Respondent and Commissioner Foster that the commissioners had received proposals in 1997, and that Shea had not planned on doing anything more and had no indication that the board of commissioners was interested in receiving a proposal. (4) Respondent and Commissioner Foster responded that they thought that there should be a special meeting because they wanted to talk to the rest of the commissioners about insurance. (3) Respondent and Commissioner Foster directed Shea to arrange for a special meeting. (6) Had Respondent and Commissioner Foster been private citizens rather than commissioners, Shea would not have scheduled a special meeting without first speaking with the board president who would then have consulted with the other commissioners on the matter. (5) t. As a result of the April 7, 1998, meeting among Shea, Respondent, and Commissioner Foster, Shea worked with the board secretary, Jeanne Johnston, to schedule a special meeting for April 13, 1998. Gallen, 98- 059 -C2 Page 17 u. ID -4 is an insurance proposal which was received by Cumru Township from Gallen Insurance for the period 4/13/98 to 4/13/99 (see, Finding 98). (1) Shea did not review or analyze the Gallen Insurance proposal prior to the April 13, 1998, Special Meeting. v. ID -13 consists of the official minutes of the April 13, 1998, Special Meeting of the Cumru Township Board of Commissioners (see, Findings 89 h, 92 c, and 100). (1) Respondent reported an amount for the Fioravante premium ($197,093) which was different from the actual amount conveyed to Shea by Fioravante ($174,093) (see, Findings 87 r and 100 d). (2) Respondent also responded to questions posed by other commissioners regarding the Gallen Insurance proposal. The public meeting recessed, and Solicitor Setley was given an opportunity to review and compare the Gallen Insurance proposal and the Fioravante coverage, while the Board met in executive session. (4) When the public meeting reconvened, Setley reported to the board regarding his comparison. The majority of the board then voted to accept the insurance proposal of Gallen Insurance. (3) (5) (6) Respondent abstained from the vote. w. The first time Shea heard of the inaccurate figure ($197,093) for the Fioravante premium was when Respondent reported it at the April 13, 1998, Special Meeting. (1) Shea was not responsible for coming up with the higher, inaccurate figure. (2) Shea asked Turner if she knew where the figure reported by Respondent ($197,093) came from, and Turner indicated that she did not know. x. As a result of the April 13, 1998, Special Meeting, the township changed insurance carriers from the Fioravante Agency to Gallen Insurance. 88. Elizabeth A. Turner ( "Turner ") was previously employed by Cumru Township as Assistant Secretary and Office Supervisor. a. Turner retired from the township in September 1998. b. For years in which the township did not solicit proposals for insurance, Turner was involved in the annual renewal of the insurance with the Fioravante Agency. c. In the normal course of business between the township and the Fioravante Agency, it was very close to the township policy expiration date or sometimes beyond the policy expiration date when Turner would find out what the renewal premium would be. Gallen, 98- 059 -C2 Page 18 g. J. (1) Turner received assurances that the township had coverage, no matter what. d. In 1997, the township solicited proposals for the insuran (1) Turner gathered the information for the insurance going to submit proposals. e. ID -11 consists of the official minutes of the April 1, 1997, the Cumru Township Board of Commissioners. (1) Prior to presentations being made by various insurance carriers submitting proposals for the township insurance, then Board Chairman Carmen F. Stanziola asked that since one of the insurance companies, Gallen Insurance, was related to one of the commissioners, Commissioner Gallen (Respondent) step down and not engage in any conversation with the public (ID -11 at 1). (a) Respondent agreed (ID -11 at 2). (2) The township chose Fioravante Agency to provide insurance in 1997. f. In 1997, the Cumru Township Commissioners stated that they did not want to solicit insurance proposals every year. In 1998, the township did not solicit insurance proposals. ce. agencies that were Regular Meeting of h. The information requested by Gallen Insurance on ID -1 was updated but was otherwise similar to the information Turner had gathered in 1997 for the insurance carriers which submitted proposals at that time. Respondent's letter in evidence as ID -2 was received by Turner at the township office. (1) When Turner received ID -2, she discussed it with Shea. (2) Per Shea's instructions, Turner gathered the information requested by Respondent in ID -2. Respondent Gallen contacted Turner at the township office and asked Turner what the cost of the insurance through the Fioravante Agency would be. (1) It was Turner's understanding that Respondent was asking what the cost for the insurance through the Fioravante Agency would be for the coming year (1998- 1999). k. ID -3 is a memo of a telephone call by which Respondent attempted to contact Turner at the township office regarding the township insurance premium (see, Finding 97). (1) The memo was provided to Turner by a township employee who had received the call. (2) The memo indicates that Mike Gallen (Respondent) had called Turner and that his suggestion was for Turner to call the insurance agent and get the figures. Gallen, 98- 059 -C2 Page 19 Turner discussed Respondent's request for the Fioravante Agency premium information with Shea. m. Turner contacted David Fioravante of the Fioravante Agency and told him that Commissioner Gallen said that she (Turner) needed to get the figures. (1) Turner told Fioravante to give the figures to Shea if Turner was not in the office. n. ID -5 is a memo from Shea to Turner (see, Finding 87 r). (1) Shea gave ID -5 to Turner. o. When Turner received ID -5, she telephoned Respondent Gallen and gave him amount(s) as the township's insurance premiums through the Fioravante Agency. p. The amount reported by Respondent at the April 13, 1998, special meeting as the insurance premium with Fioravante ($197, 093) was different than the figure on Shea's note to Turner as to what the Fioravante premium would be ($174,093). (ID -5; ID -13 at 2). q. Turner was not certain where the $197,093 figure came from or whether she provided that figure to Respondent. 89. Carol Foster ( "Foster ") is a Cumru Township Commissioner, having served in that capacity since January 1998. a. At the January 5, 1998, Cumru Township Reorganization Meeting, Foster and Gallen were appointed to serve as the board's liaisons to the administrative department of the township. (1) Foster testified that liaison commissioners had no greater ability to affect policy or take official action than any other commissioner in an individual capacity. b. In 1998, the primary staff contact for the administrative liaisons was Township Manager Shea. c. Gallen, Foster, and Shea met in early April 1998. d. Prior to the Gallen- Foster -Shea meeting in early April 1998, Foster had no involvement as a township commissioner in researching the township's insurance policies with the Fioravante Agency or in taking any action to seek proposals or quotes from other insurance providers. e. During the course of the Gallen- Foster -Shea meeting in early April 1998, Foster became aware for the first time that one of the issues to be discussed was the cost of the township's insurance. (1) Gallen, Foster, and Shea all actively participated in a discussion regarding the cost of the township's insurance. (2) It was at this meeting that Foster first learned what the various insurance cost proposals would be. Gallen, 98- 059 -C2 Page 20 (3) (a) Foster was not the source of this information. It was determined that the cost of the Gallen Insurance proposal in evidence as ID -4 was less than the cost of the township's insurance through the Fioravante Agency. (4) There was discussion regarding informing the rest of the commissioners about the insurance information. (5) (6) It was Foster's understanding that if the township did not take action by April 13, 1998, with respect to the insurance, the township would not have insurance. (7) Foster learned during the meeting that the township's insurance with the Fioravante Agency would expire within a few days, on April 13, 1998. A decision was made to go forward with trying to set up a meeting of the board of commissioners. f. As the result of the Gallen- Foster -Shea meeting in early April 1998, a special meeting of the Cumru Township Board of Commissioners was held the following week on April 13, 1998. Between the Gallen- Foster -Shea meeting in early April 1998 and the special meeting of the Cumru Township Board of Commissioners on April 13, 1998, Foster did not do any research or analysis of the Gallen Insurance proposal (ID -4) or the cost figures discussed at the Gallen- Foster -Shea meeting in early April 1998. h. ID -13 consists of the official minutes of the April 13, 1998, Special Meeting of the Cumru Township Board of Commissioners (see, Findings 87 v, 92 c, and 100). (1) The references in the minutes to "Mr. Gallen" are to Commissioner Michael Gallen (Respondent). (2) The board decided to change insurance carriers to Gallen Insurance. Foster testified that Gallen did not speak to her about insurance prior to the Gallen- Foster -Shea meeting in early April 1998. g. J. Foster testified that Gallen never lobbied her on behalf of Gallen Insurance or asked her to vote on behalf of Gallen Insurance. 90. Ray Henry ( "Henry ") is President of the Cumru Township Board of Commissioners, having served in that officer position since August of 1997. a. Liaison commissioners were given the task of gathering information and making recommendations to the board regarding their assigned areas. b. The board was not required to accept the information or recommendations submitted by the liaison commissioners. c. The township's insurance was renewable on an annual basis. d. The township did not solicit insurance proposals every year. Gallen, 98- 059 -C2 Page 21 e. The township did solicit insurance proposals in 1997. f. Henry discussed with Shea the February 10, 1998, letter from Gallen Insurance that is in evidence as ID -1. (1) Henry expressed to Shea his (Henry's) opinion that the township did not intend or desire to seek proposals for insurance. (2) Henry did not discuss the matter with other commissioners to see whether they were interested in pursuing it. g. Henry did not do any research or comparisons regarding any proposals from Gallen Insurance and coverage through Fioravante for 1998. h. The April 13, 1998, meeting was a special meeting called to discuss the township insurance. (1) The township changed its insurance provider to Gallen Insurance. Prior to the April 13, 1998, Special Meeting, Respondent Gallen did not solicit Henry to support the Gallen Insurance proposal. 91. David Fioravante ( "Fioravante ") is president of Fioravante Group, Inc. (also referred to herein as the Fioravante Agency). a. The Fioravante Agency provided various insurance to Cumru Township for 31 years. b. Cumru Township typically did not solicit insurance proposals on an annual basis. c. Most years, the township simply renewed its insurance through the Fioravante Agency. d. The bulk of the township's insurance policies came due for renewal on April 13 of each year. (1) Two auxiliary policies came due at other times. e. Prior to the April 13 policy expiration /renewal date, Fioravante would work with Cumru Township staff to update the insurance - related information and determine any necessary increases in coverage. f. Fioravante would typically have the new premium information for Cumru Township on or after the April 13 renewal date. Fioravante testified that even though the township's new premium might not be determined by April 13, the township would not be without insurance on April 13. g. h. Absent any instruction from the township to the contrary, the expiring Cumru Township policies would automatically be renewed on April 13. In 1997, Cumru Township solicited insurance proposals. Gallen, 98- 059 -C2 Page 22 j. In 1997, Fioravante submitted to Cumru Township the two insurance proposals which are in evidence as ID -9. (1) The proposal for insurance through Harleysville provided for a potential "dividend" to be returned to the insured depending upon claims submitted. k. In 1997, the Fioravante Agency was awarded the township's insurance business. In 1998, Fioravante was not asked to submit any insurance proposals to Cumru Township. m. Approximately one week to ten days prior to the April 13, 1998, expiration/ renewal date, Fioravante received a telephone call from Turner asking for the amount of the renewal premiums. (1) Fioravante did not have the renewal premium information at that time. (2) Fioravante asked Turner why she needed the premium information at that time, and Turner responded that she was asked by Michael Gallen (Respondent) to provide these figures. n. As a result of Fioravante's telephone conversation with Turner, Fioravante telephoned his underwriter and obtained an approximate premium figure of $174,093. (1) Fioravante and the underwriter did not discuss the potential dividend to the township based upon submitted claims. o. Fioravante provided the premium information which he obtained from the underwriter to Cumru Township Manager Shea. On April 13, 1998, Fioravante received a telephone call from Shea informing him that per a meeting that day, Cumru Township was going to place its insurance with Gallen Insurance. p. q. (1) One or two days later, Fioravante received a letter from the township to the same effect. The following week, Fioravante attended the April 21, 1998, meeting of the Cumru Township Board of Commissioners. (1) Fioravante presented comments to the board regarding the township's change of insurance carriers. r. Fioravante was subsequently given an opportunity to submit an insurance proposal to the township. s. ID -7 and ID -8 are the proposals submitted by Fioravante to Cumru Township for 1998 -1999. t. The township did not accept the Fioravante proposals. 92. Michael Setley ( "Setley ") is the solicitor of Cumru Township, having served in that capacity since approximately January of 1998. Gallen, 98- 059 -C2 Page 23 a. It is Setley's opinion that at all times relevant to this case, Cumru Township was not required to seek competitive bids for insurance contracts. b. It is Setley's opinion that the April 13, 1998, Special Meeting of the Cumru Township Board of Commissioners was properly noticed. c. ID -13 consists of the official minutes of the April 13, 1998, Special Meeting of the Cumru Township Board of Commissioners (see, Findings 87 v, 89 h, and 100). (1) Setley testified that the minutes at 2 -3 pertaining to township insurance coverage accurately reflect what occurred during the meeting. d. During the April 13, 1998, Special Meeting, Henry proposed a review and comparison of the Gallen Insurance proposal and the then existing township insurance policies with the Fioravante Agency. (1) Setley conducted a review based upon the declaration sheets that were provided to him for the then existing coverage through the Fioravante Agency and the proposed coverage through Gallen Insurance. e. Setley testified that other than in the context of the April 13, 1998, Special Meeting, Respondent never spoke with Setley regarding the Gallen Insurance proposal. f. Setley testified that the documents requested by the Gallen letter in evidence as ID -1 would have been publicly available in 1998 under the Pennsylvania Right to Know Law except for any identifying information about individual employees, such as Social Security Numbers. Setley testified that in his professional opinion, Cumru Township was obligated to provide the information requested by ID -1 to Gallen Insurance in 1998. g. h. Setley testified that it would be easier for a Cumru Township commissioner to obtain information from a township employee than for a "person off the street" to do so. J. Prior to April 13, 1998, Setley played no role in reviewing Cumru Township's commercial insurance policies. Prior to April 13, 1998, Setley was not asked by anyone at the Cumru Township Board to review insurance proposals from Gallen Insurance, the Fioravante Agency, or any other agency. k. Prior to April 13, 1998, Setley did not play any role in bringing the matter of the township insurance before the commissioners. I. The first time Setley saw the Gallen Insurance proposal dated March 31, 1998, in evidence as ID -4 was April 13, 1998. m. Setley has no personal knowledge of how the Gallen Insurance proposal dated March 31, 1998 (ID -4) was brought before the Cumru Township Board. Gallen, 98- 059 -C2 Page 24 93. Donald H. Moll, Jr. ( "Moll ") was formerly employed by Gallen Insurance from approximately 1987 until February 1, 1999. a. Moll had sole responsibility for preparing the Gallen Insurance proposal that was submitted to Cumru Township in 1997. b. Moll testified that he made the decision to submit an insurance proposal to Cumru Township in 1998. (1) Moll testified that he never personally discussed this decision with Respondent. c. Moll authored and typed the Gallen Insurance letter in evidence as ID -1. (1) The letter was signed by Joseph Gallen. d. When Gallen Insurance did not receive a response from Cumru Township with respect to ID -1, Joseph Gallen told Moll that he (Joseph Gallen) would try to get the information. e. Moll subsequently received a telephone call from Respondent indicating that Respondent had the information that had been requested by ID -1. (1) Respondent provided the information to Moll. f. Moll prepared the Gallen Insurance proposal that is in evidence as ID -4. (1) In preparing the proposal, Moll used the township information that had been requested by ID -1 and provided to Moll by the Respondent. g. Moll submitted the proposal that is in evidence as ID -4 to Cumru Township. h. Moll testified that following the submission of the proposal to Cumru Township, he did not speak with Respondent regarding the proposal. Setley telephoned Moll regarding the specifics of the Gallen Insurance coverage as outlined in ID -4. (1) Setley asked Moll whether the Gallen Insurance coverage could provide a $10 million umbrella. (2) Moll told Setley that a $10 million umbrella could be provided for an additional $1,000. In 1998, Gallen Insurance would have received commissions directly from the Cincinnati Insurance Company, but the commissions for the St. Paul insurance program would have been paid through and shared with Sedgwick of Pennsylvania, Inc. ( "Sedgwick "). (1) At that time, Sedgwick was the managing general agent for the St. Paul Insurance program. (2) Gallen Insurance was a broker as to the insurance through the St. Paul Insurance Company. 94. Jeanne E. Johnston ( "Johnston ") is the township secretary for Cumru Township, having served in that capacity since August 4, 1997. J. Gallen, 98- 059 -C2 Page 25 a. Johnston testified that on April 1, 1998, or April 2, 1998, she observed Board President Henry and Shea talking in the township office. (1) Johnston testified that Henry and Shea had the Gallen Insurance proposal (ID -4) with them. (2) Johnston testified that she stated, "I know what you're looking at," because she could see it upside down, and that Henry replied, "I guess we got to look at it, the price is right." (Tr. of 2/26/01 at 149). (a) Johnston testified, "I remember that specifically him saying that." (Tr. of 2/26/01 at 149). b. Johnston's testimony as set forth in Finding 94 a above is not credible. (1) Johnston's testimony is contradicted by the Stipulation of the parties that Henry did not review or see the Gallen Insurance proposal prior to the April 13, 1998, Special Meeting (see, Finding 82). (2) Johnston's testimony is contradicted by the testimony of Shea that Shea did not review or analyze the Gallen Insurance proposal prior to the April 13, 1998, Special Meeting (see, Finding 87 u). c. Johnston's testimony is not credible. D. Documents 95. ID -1 is a copy of a Gallen Insurance letter dated February 10, 1998, addressed to Shea (see, Findings 87 d and 93 c). a. The letter requests the following information to assist with submitting a proposal to Cumru Township for the policy period of 4/13/98 to 4/13/99: (1) 1998- Annual Budget Report; (2) Current claim report for all lines of coverage, for at least 3 years; (3) Recent professional property appraisal report; (4) Payroll by Workers Compensation Classification for upcoming policy period; and (5) Current vehicle and driver schedule. b. The letter is signed "Joseph J. Gallen." c. In the upper right -hand corner of ID -1 is the following handwritten notation: Week of 22 Feb 98 Discussed with Ray Henry Twp does not intend /desire to seek proposals for insurance. (ID -1). 96. ID -2 is a copy of a FAX from Respondent to Cumru Township which was received at the township office on March 12, 1998 (see, Finding 87 k). a. The letter is directed to "Bill or Betty." b. The letter requests the same information that was requested by ID -1. Gallen, 98- 059 -C2 Page 26 c. The letter indicates that Respondent needs the information as soon as possible, and it directs Shea and Turner to contact Respondent by telephone when the information is ready (see, Findings 17 -18). 97. ID -3 is a memo of a telephone call from Respondent to Turner at the township office regarding the township insurance premium (see, Finding 88 k). a. The time and date indicated on the memo of the call is "3.31 12:18." b. The memo states: Bette Mike Gallen His suggestion is to call INS. Agent & get figures Becky (ID -3). 98. ID -4 is a copy of a 10 -page insurance proposal dated March 31, 1998, which was received by Cumru Township from Gallen Insurance (see, Finding 87 u). a. The policy term is designated 4 -13 -1998 to 4 -13 -1999. b. The proposal is for the following types of coverage: (1) a "Commercial Package" including commercial property, contractor equipment, underground sewer line, boiler and machinery, crime, and commercial general liability insurances; (2) commercial automobile insurance; (3) workers' compensation insurance; and (4) a commercial umbrella. c. The total annual premium is stated to be $127,000. 99. ID -12 consists of the official minutes of the April 9, 1997, Special Joint Meeting of the Cumru Township Board of Commissioners, Park and Recreation Board and Shade Tree Commission. a. Regarding the township insurance coverage, the minutes provide as follows: Mr. Gallen excused himself from the Board during insurance discussions. ON MOTION OF MR. HENRY, SECOND OF MR. COLDREN, A UNANIMOUS VOTE TO RENEW THE INSURANCE POLICY WITH HARLEYSVILLE INSURANCE COMPANIES. (ID -12 at 2). 100. ID -13 consists of the official minutes of the April 13, 1998, Special Meeting of the Cumru Township Board of Commissioners (see, Findings 87 v, 89 h, and 92 c). a. The stated purpose of the meeting was to review township insurance coverage and any other business that might have come before the board. Gallen, 98- 059 -C2 Page 27 b. Five Commissioners were in attendance, specifically, President Ray Henry, Vice President Michael Gallen (Respondent), and Commissioners Coldren, Foster, and Rowley. c. The minutes indicate that no members of the public were present. d. Regarding the matter of the township insurance coverage, the minutes provide as follows: NEW BUSINESS A) Township Insurance Coverage 1) Letter and Insurance Summary from Donald H. Moll, Jr., of Gallen Insurance, dated 3/31/98 Mr. Gallen reported that the current insurance through Fioravante Insurance Agency had a proposed premium for this year of $197,093.00. He reported that an agent within Cumru Township, Gallen Insurance, submitted a proposal for this year at $127,000.00 for slightly better coverage, a savings to the taxpayers of $70,000. Mr. Rowley asked if the coverage was the same. Mr. Shea indicated that he had not had a chance to compare the Gallen Insurance proposal against what the Township currently has. Mr. Rowley noted that the Fioravante premium increased by $15,000 from last year. Mr. Coldren pointed out that the stated difference did not reflect the current policy that gave a refund based on claims; last year's refund was around $40,000. "Even assuming the rebate, there is still a substantial difference of $13,000 - $14,000." He asked if, with the Gallen proposal, the Township would be assessed if a number of claims got filed. Mr. Gallen said, "No, it's a flat rate." When Mr. Rowley asked if the Gallen proposal assumes the risk up front, Mr. Gallen said, "Yes." Mr. Henry stated that the proposal should be reviewed and compared against the current policy. Mr. Gallen said that today was the due date. Mr. Setley offered to compare the coverages during a recess. Indicating the Gallen proposal, Mr. Rowley stated, "If everything is the same or better, I would vote for it." 8:18 a.m. — Mr. Rowley stated a need to leave the meeting and was excused by the Board 8:20 a.m. — The meeting recessed. 8:33 a.m. — The meeting reconvened. 8:34 a.m. — The Board went into Executive Session. Mr. Henry stated that the Board would discuss a personnel matter. 9:34 a.m. — The meeting reconvened. Mr. Henry stated that the Board discussed a personnel matter in Executive Session that is still pending. Gallen, 98- 059 -C2 Page 28 Mr. Setley stated that he reviewed the Fioravante coverage and the Gallen proposal. He reported that there were a couple of minor differences, but only two significant differences: 1) Commercial Property Blanket Coverage Gallen proposal — over $3,000,00 [sic] Fioravante coverage — under $2,500,000 Mr. Setley stated that Gallen provided broader coverage on property. 2) Umbrella Liability Coverage Gallen proposal - $5,000,000 with $10,000 retainage Fioravante coverage - $10,000,000 with $10,000 retainage Mr. Setley reported he had already checked with Gallen Insurance to find out the difference if the proposal was changed to a $10 million umbrella: it is $1,000 a year. He suggested that the Board of Commissioners could accept the Gallen proposal as presented or, if the Board wanted the $10 million umbrella to make it equal with the existing coverage, it could be accepted for $1,000 additional premium. In summary, Mr. Setley stated that, based on his review this morning, they were approximately equivalent coverages with the one exception of the umbrella liability; it clearly appeared to be a cost savings to go with the proposal. ON MOTION OF MR. COLDREN, SECOND OF MRS. FOSTER, A MAJORITY VOTE ACCEPTING THE INSURANCE PROPOSAL FROM GALLEN INSURANCE AS OF THIS DATE FOR A PREMIUM OF $127,000. ROLL CALL: MR. GALLEN — ABSTAIN; MR. COLDREN — YES; MRS. FOSTER — YES; MR. HENRY — YES. ON MOTION OF MR. COLDREN, SECOND OF MRS. FOSTER, A MAJORITY VOTE AUTHORIZING AN INCREASE IN THE UMBRELLA LIABILITY COVERAGE THROUGH GALLEN INSURANCE FROM $5,000,000 TO $10,000,000 FOR AN ADDITIONAL COST OF $1,000. ROLL CALL: MR. GALLEN — ABSTAIN; MR. COLDREN — YES; MRS. FOSTER — YES; MR. HENRY — YES. (ID -13 at 2 -3). 101. ID -16 consists of invoices for various Cumru Township insurance policies through the St. Paul Insurance Company. a. With respect to the policy period 4/13/98 through 4/13/99, the invoices reflect commissions to Gallen Insurance in the total amount of $7311.36. b. With respect to the policy period of 4/13/99 through 4/13/00, the invoices reflect commissions to Gallen Insurance in the total amount of $6011.82. 102. R -3 is an endorsement to Cumru Township Policy # SMP OU 50 83 through Fioravante Agency. Gallen, 98- 059 -C2 Page 29 a. The policy expiration date is stated to be 4/13/98. 103. R -4 is a Notice pertaining to Cumru Township's workers' compensation insurance Policy # OU 50 83 through Fioravante Agency. a. The policy expiration date is stated to be 04/13/98. III. DISCUSSION: Respondent Michael Gallen (also referred to herein as "Respondent" or "Gallen "), has at all times relevant to these proceedings 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 collectively referred to herein as the "Ethics Act." 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. The issue before us is whether Gallen violated Section 3(a)/1103(a) of the Ethics Act when he used the authority of his office for the private pecuniary benefit of a member of his immediate family and /or a business with which a member of his immediate family is associated by participating in discussions and actions leading to his father's insurance agency being contracted with to provide insurance for the township. We shall now summarize the relevant facts. Respondent has served as a Cumru Township Commissioner from January 1996 to the present. Respondent has served as vice president of the Cumru Township Board of Commissioners since January 1997. When Respondent took office in 1996 as a Cumru Township Commissioner, the township had a long history of purchasing its insurance through the "Fioravante Group, Inc." (also referred to herein as the "Fioravante Insurance Agency" and the "Fioravante Agency "). For approximately 30 years, specifically, since 1967, Cumru Township had purchased its insurance exclusively through the Fioravante Agency. The township's insurance was renewable on an annual basis. However, the township did not solicit proposals for insurance on an annual basis. Most years, the township simply renewed its insurance through the Fioravante Agency. In fact, competitive bids for insurance were sought only about three (3) times from 1980 to 1997. In April of 1998, the year after Respondent Gallen took office, the township switched insurance carriers to the "Gallen Insurance Agency" (also referred to herein as "Gallen Insurance" or "Gallen Insurance, Inc. "). The events surrounding the change in the township's insurance carriers form the basis of this matter now before us. Gallen Insurance is a business with which various of Respondent's immediate family members are associated. Respondent's father, Joseph Gallen, was at all times relevant to these proceedings the majority shareholder of Gallen Insurance. Respondent's sister, Ann Moll, was President of Gallen Insurance, having held that position since 1988. At all times relevant to this case, Respondent's brothers were employed by Gallen Insurance. Gallen, 98- 059 -C2 Page 30 Though not an immediate family member of Respondent, Donald Moll, Respondent's brother -in -law, was Vice President of Gallen Insurance during the time period under review in this case. Respondent himself is not employed by Gallen Insurance, and he does not have any ownership interest in it. The actions of Respondent which are to be reviewed by this Commission occurred in 1998 but have been contrasted to events which took place in 1997, shortly after Respondent assumed office. In March of 1997, the Cumru Township Board of Commissioners decided to seek requests for proposals for the township's insurance coverage. In response to the 1997 solicitation for bids, four (4) insurance companies made presentations to the board of commissioners at the board's April 1, 1997, Regular Meeting. The four (4) companies were: Mast & Moyer; Hart, Inc.; Gallen Insurance, Inc.; and the Fioravante Agency. The minutes of the April 1, 1997, meeting are in evidence as ID -11. Prior to the insurance presentations, then Board Chairman Carmen F. Stanziola noted that one of the insurance companies, Gallen Insurance, was related to one of the commissioners, and asked Respondent to step down and not engage in any conversation with the public (ID -11 at 1). Respondent agreed (ID -11 at 2). At a subsequent meeting held shortly thereafter, the board of commissioners voted to renew the insurance contract through the Fioravante Agency. Respondent abstained from voting and did not participate in the discussions. In 1998, the make -up of the board of commissioners had changed. There was testimony that in 1998, with the election of two new commissioners (Carol Foster and Timothy Rowley), and the re- election of Ray Henry, who had taken over as board president in August of 1997, it became an overriding objective of the full board of commissioners to take affirmative steps to save the township money. One area of concern was making certain that the township's professional service providers were cost effective. However, the township did not solicit insurance proposals for the 1998 -1999 insurance coverage. As noted above, the township had rarely solicited insurance proposals in the past, and proposals had just been solicited the prior year. William S. Shea ( "Shea "), who served as the township manager of Cumru Township from 1975 to 2000, and who worked on township insurance matters with Elizabeth Turner ( "Turner "), then the assistant secretary of the township, testified that in 1998, it was not his intent to solicit proposals for insurance as the township had done in 1997. Shea had not been instructed by the board members to solicit insurance proposals in 1998, and Shea felt that it was too soon to solicit proposals again. It is also noteworthy that in 1997, the commissioners had stated that they did not want to solicit insurance proposals every year. The bulk of the township's insurance policies which were in effect through the Fioravante Agency were due to expire on April 13, 1998. Absent any instructions to the contrary from the township, those policies would have been renewed automatically. On or about February 10, 1998, Shea received a letter from Gallen Insurance. The letter was signed by Joseph Gallen and requested certain items from the township relative to preparing an insurance proposal for the 1998 -1999 policy period. The letter is in evidence as ID -1. The information requested by ID -1 was updated but was otherwise similar to the information that had been gathered in 1997 for the insurance carriers (including Gallen Insurance) which had submitted proposals at that time. The Gallen Insurance letter was unsolicited, and the township had not given any indication that it was going to solicit proposals for insurance in 1998. When Shea received Gallen, 98- 059 -C2 Page 31 the Gallen Insurance letter, he set it aside temporarily until he could talk to Ray Henry, president of the board of commissioners. The evidence establishes that during the week of February 22, 1998, Shea discussed the letter with Henry and was directed by Henry not to respond to the letter. The evidence on this point consists of the testimony of Shea and Henry (the parties to the conversation), a note which Shea wrote on ID -1 to memorialize the conversation, and a deemed admission from the pleadings which appears as Finding 16 b above (see, Answer and New Matter to Commission's Investigative Complaint /Findings Report, Paragraph 28). Shea testified that he told Henry that the Gallen Insurance letter (ID -1) had been received, and that based upon the fact that proposals had been solicited in 1997, it seemed like it was too soon to seek proposals again. Shea testified that Henry responded that the township did not intend or desire to receive proposals for the township insurance coverage in 1998. Shea testified that he (Shea) memorialized Henry's response by writing it in the upper right -hand corner of the letter. There is in fact a handwritten notation in the upper right -hand corner of ID -1, which notation states: (ID -1). Week of 22 Feb 98 Discussed with Ray Henry Twp does not intend /desire to seek proposals for insurance. Per Finding 16 b, Henry directed Shea not to respond to Joseph Gallen's letter and to file the document in township files. Shea similarly testified that as a result of his conversation with Henry, he (Shea) filed the Gallen Insurance letter. Henry's testimony is consistent with Shea's testimony and Finding 16 b. Henry testified that he discussed the February 10, 1998, Gallen Insurance letter (ID -1) with Shea. Henry testified that he expressed to Shea his (Henry's) opinion that the township did not intend or desire to seek proposals for insurance. Henry did not discuss the matter with any other commissioners to see whether they were interested in pursuing the matter. Henry's testimony, Shea's testimony, the notation on ID -1, and Finding 16 b are consistent. We find that evidence to be credible. However, the evidence also establishes that the information requested by ID -1 was public information, and that regardless of the intention of the commissioners as to insurance proposals, Gallen Insurance would have been entitled to the information requested by ID -1. Among others who testified on this point, Cumru Township Solicitor Setley testified that in his professional opinion, Cumru Township was obligated to provide the information requested by ID -1 to Gallen Insurance in 1998. Setley acknowledged that it would nevertheless be easier for a Cumru Township commissioner to obtain information from a township employee than for a "person off the street" to do so. When Gallen Insurance did not receive a response from Cumru Township with respect to ID -1, Joseph Gallen told Donald Moll that he (Joseph Gallen) would try to get the information. According to the evidence before us, it was at this point that Respondent became involved in assisting Gallen Insurance as it sought to prepare an insurance proposal for Cumru Township. On March 12, 1998, Respondent faxed a letter from his company's fax machine, on his company's stationary, directed to Shea and Turner requesting the same information Gallen, 98- 059 -C2 Page 32 that had been requested by Gallen Insurance in ID -1. Respondent's letter is in evidence as ID -2. The letter indicated that Respondent needed the information as soon as possible. The letter directed Shea and Turner to contact Respondent by telephone when the information was ready. The letter did not state in what capacity Respondent was requesting the information from Cumru Township, and Shea did not ask Respondent whether he was requesting the information in his official capacity. The Investigative Division has emphasized that in 1998, Respondent was not only a commissioner and vice president of the board of commissioners, but he was also one of the two designated "Liaison Commissioners" between the board of commissioners and the township's administrative department. The other Liaison Commissioner to the administrative department was Commissioner Carol Foster ( "Foster "). As Liaison Commissioners assigned to the township's administrative department, Respondent's and Foster's responsibilities included maintaining contact with the township administrative employees, including Shea and Turner who handled insurance matters. However, all Commissioners, including Respondent, had ultimate supervisory authority over these and other township employees. As a result of receiving ID -2, Shea told Turner to get the requested information together for Respondent. Turner complied with Shea's request. On March 13, 1998, the day after receiving Respondent's FAX, Shea personally delivered the information to Respondent at Respondent's place of business. Shea does not normally personally deliver information to a requestor who requests documents under the Right to Know Law. Shea did not charge Respondent for the copies of the requested information. Under the township's Right to Know policy, the township would normally charge private citizens for copies of such information. Shea testified that the fact that Respondent was a township commissioner did play a role in Shea's taking action to respond to the request for the information (see, Finding 87 p). Respondent has argued that his request was made on behalf of his father as an individual in Cumru Township to get publicly available information that should have been provided to Gallen Insurance in response to ID -1; that his request was not made in his official capacity; and that he is not responsible for assumptions that may have been made by the employees of the township's administrative department (see, Tr. of 2/6/01 at 32, 35- 36, 38 -39; Michael Gallen's Post - Hearing Memorandum of Law, at 10 -11, 22 -23). After Shea delivered the information to Respondent, Respondent provided the information to his brother -in -law, Donald Moll of Gallen Insurance, who used the information to prepare an insurance proposal for Cumru Township. The Gallen Insurance proposal was submitted to the township on March 31, 1998, and is in evidence as ID -4. Meanwhile, Respondent contacted Turner at the township office and asked her to find out what the township's premiums would be through the Fioravante Agency for 1998, as the policy was due to expire on April 13, 1998. One such contact is documented by ID- 3. ID -3 is a memo of a telephone call from Respondent to Turner at the township office. The memo was provided to Turner by a township employee who had received the call. The memo indicates that Mike Gallen (Respondent) had called Turner and that his suggestion was for Turner to call the insurance agent and get the figures. The date of this particular contact, March 31, 1998, was the very date that Gallen Insurance submitted its insurance proposal for 1998 -1999 to Cumru Township. The premiums for 1998 -1999 were not provided by the Fioravante Agency to Turner or Shea until April 6, 1998. Fioravante testified that approximately one week to ten days prior to the April 13, 1998, expiration /renewal date, he received a telephone call from Turner asking for the amount of the township's renewal premiums. Fioravante did not yet Gallen, 98- 059 -C2 Page 33 have the renewal premium information. Fioravante asked Turner why she needed the premium information at that time, and Turner indicated that she was asked by Michael Gallen (Respondent) to provide these figures. Turner told Fioravante to give the figures to Shea if Turner was not in the office. Fioravante telephoned his underwriter and obtained an approximate premium figure of $174,093 for the period from mid -April of 1998 to mid -April of 1999. Fioravante and the underwriter did not discuss the potential dividend to the township based upon submitted claims. On April 6, 1998, Fioravante provided the premium information which he obtained from his underwriter to Cumru Township Manager Shea. On or about the same day, April 6, 1998, and as a result of that conversation, Shea created the handwritten note in evidence as ID -5. Shea addressed the note to Turner. The note is dated 4/6/98. The note indicates a total premium of $174,093, with a partial breakdown of that premium. When Turner received ID -5, she telephoned Respondent and gave him amount(s) as the township's insurance premiums through the Fioravante Agency. Respondent then took action in his official capacity to bring the matter of the Gallen Insurance proposal before the board of commissioners for consideration. Respondent has attempted, through the testimony of Jeanne E. Johnston, the township secretary, to suggest that the Gallen Insurance proposal was reviewed by Henry and Shea on April 1 or April 2 and would have come before the board regardless of Respondent's actions detailed herein. Ms. Johnston's testimony is not credible for the reasons set forth in Finding 94. It was the Respondent who effectuated bringing the Gallen Insurance proposal before the Cumru Township Board of Commissioners. On April 7, Respondent and Foster, as liaison commissioners to the administrative department, met with Shea at the Township building. The Gallen Insurance proposal was discussed at this meeting. Respondent was the participant responsible for causing the insurance discussions to occur, which discussions resulted in the scheduling of a Special Meeting of the board to review the Gallen Insurance proposal. Foster did not even know prior to the April 7, 1998, meeting that the township's insurance was going to be discussed at it. Foster had no involvement prior to the April 7, 1998, meeting in researching the township's insurance policies with the Fioravante Agency or in taking any action to seek proposals or quotes from other insurance providers. It was at the April 7, 1998, meeting that Foster learned for the first time that the township's insurance with the Fioravante Agency would expire within a few days, on April 13, 1998. Foster also learned for the first time what the various insurance cost proposals would be. Foster was not the source of this information. Shea's testimony clearly established that he had no intention of pursuing a change in the township's insurance. In fact, Shea had already been instructed by Board President Henry that the board did not intend or desire to receive insurance proposals that year. During the April 7, 1998, meeting, Shea indicated to Respondent and Foster that the commissioners had received proposals in 1997, and that Shea had not planned on doing anything more and had no indication that the board of commissioners was interested in receiving a proposal. Clearly it was not Shea who was advancing the insurance issue. Since neither Foster nor Shea initially advanced the insurance issue at the April 7, 1998, meeting, the necessary conclusion is that the only remaining participant —the Respondent —was the one pursuing the insurance issue in order to secure a review by the full board of the Gallen Insurance proposal. Gallen, 98- 059 -C2 Page 34 Of course, once Respondent initiated the process, Foster did join with him in advocating a review by the board. Both Respondent and Foster directed Shea to arrange for a special meeting. An ordinary citizen, as opposed to a township commissioner, could not have simply directed the township manager to schedule a special meeting of the board of commissioners. As a direct result of the April 7, 1998, meeting among Respondent, Foster, and Shea, a special meeting of the Cumru Township Board of Commissioners was scheduled and held the following week on April 13, 1998. The stated purpose of the meeting was to review township insurance coverage and any other business that might have come before the board. Although various witnesses testified that they believed the township would be without insurance on April 13, 1998, unless the board took action by that date, there was in fact no basis for any such fear. Absent any instruction from the township to the contrary, the expiring Cumru Township policies with the Fioravante Agency would have been automatically renewed on April 13. The official minutes of the April 13, 1998, Special Meeting of the Cumru Township Board of Commissioners are in evidence as ID -13 (see, Finding 100). Five Commissioners were in attendance, specifically, President Ray Henry, Vice President Michael Gallen (Respondent), and Commissioners Coldren, Foster, and Rowley (ID -13 at 1). The parties have stipulated that Board President Henry and Commissioners Coldren and Rowley did not review or see the Gallen Insurance proposal prior to the April 13, 1998, Special Meeting. As set forth in the minutes, Respondent led the discussions regarding insurance. The minutes provide, in part, as follows: NEW BUSINESS A) Township Insurance Coverage 1) Letter and Insurance Summary from Donald H. Moll, Jr., of Gallen Insurance, dated 3/31/98 Mr. Gallen reported that the current insurance through Fioravante Insurance Agency had a proposed premium for this year of $197,093.00. He reported that an agent within Cumru Township, Gallen Insurance, submitted a proposal for this year at $127,000.00 for slightly better coverage, a savings to the taxpayers of $70,000. Mr. Rowley asked if the coverage was the same. Mr. Shea indicated that he had not had a chance to compare the Gallen Insurance proposal against what the Township currently has. Mr. Rowley noted that the Fioravante premium increased by $15,000 from last year. Mr. Coldren pointed out that the stated difference did not reflect the current policy that gave a refund based on claims; last year's refund was around $40,000. "Even assuming the rebate, there is still a substantial difference of $13,000 - $14,000." He asked if, with the Gallen proposal, the Township would be assessed if a number of claims got filed. Mr. Gallen said, "No, it's a flat rate." When Mr. Rowley asked if the Gallen proposal assumes the risk up front, Mr. Gallen said, "Yes." Mr. Henry stated that the proposal should be reviewed and compared against the current policy. Mr. Gallen said that today was the due date. Mr. Gallen, 98- 059 -C2 Page 35 Setley offered to compare the coverages during a recess. Indicating the Gallen proposal, Mr. Rowley stated, "If everything is the same or better, would vote for it." 8:18 a.m. — Mr. Rowley stated a need to leave the meeting and was excused by the Board 8:20 a.m. — The meeting recessed. 8:33 a.m. — The meeting reconvened. (ID -13 at 2). As set forth in the above quoted excerpt from the minutes, Respondent not only led the insurance discussions but he reported an amount for the Fioravante premium ($197,093) which was higher than the actual amount conveyed to Shea by Fioravante and recorded by Shea on ID -5 ($174,093). It is not clear whether Respondent was responsible for the inaccuracy of the figure. Shea testified that he was not responsible for coming up with the higher, inaccurate figure. However, Turner testified that she was not certain where the $197,093 figure came from or whether she may have provided that figure to Respondent. When the April 13, 1998, Special Meeting reconvened, Respondent did not participate further. Township Solicitor Setley compared the Gallen Insurance proposal with the then current policy through the Fioravante Agency and made an oral report to the Board. Setley concluded that the Gallen Insurance proposal provided approximately equivalent coverages with the exception of a difference in the amount of umbrella liability coverage. Setley had contacted Gallen Insurance to request a premium quote for raising the limit on the umbrella policy to equal that of the Fioravante policy. The additional premium was reported by Setley to be $1,000, for a total premium of $128,000 for insurance through Gallen Insurance. The board of commissioners voted 3 -0 to accept the insurance proposal from Gallen Insurance. Respondent abstained from the vote. Rowley did not participate in the vote as he had left for a previous engagement. Various commissioners testified that they voted in favor of changing the insurance carrier from the Fioravante Agency to Gallen Insurance in order to save the township money. The Gallen Insurance coverage for Cumru Township was with the St. Paul Insurance Company and the Cincinnati Insurance Company, from which the parties have stipulated that Gallen Insurance has received $14,373.12 in commissions for the period of April 1998 to October 6, 1999. Having highlighted the facts and issues, we preliminarily note that Respondent has raised a Motion to Dismiss alleging a lack of clear and convincing evidence to support a violation of Section 3(a)/1103(a) of the Ethics Act (Tr. of 2/6/01 at 282; Tr. of 2/26/01 at 177 -178). We deny Respondent's Motion to Dismiss, based upon the disposition below. In applying the facts to the allegation, based upon our review of the record, we find that there is clear and convincing evidence that Respondent violated Section 3(a)/1103(a) of the Ethics Act when he used the authority of his office for the private pecuniary benefit of a member of his immediate family and /or Gallen Insurance, a business with which Respondent's father and various other members of Respondent's immediate family are associated, by participating in discussions and actions leading to Gallen Insurance being contracted with to provide insurance for Cumru Township. Absent Respondent's actions in 1998 in the matter of the township's insurance, the township would not have changed insurance carriers from the Fioravante Agency to Gallen Insurance. Gallen, 98- 059 -C2 Page 36 The uses of authority of office which support the violation certainly include: (1) Respondent's participation at the April 7, 1998, meeting among Respondent, Foster and Shea, in which Respondent advanced a review of the township's insurance and, together with Foster, directed Shea to schedule a special meeting of the board of commissioners to review the township's insurance coverage; and (2) Respondent's participation in the board's discussions regarding the insurance and the Gallen Insurance proposal specifically at the Special Meeting on April 13, 1998, as reflected in the minutes. As for the former, but for Respondent's actions as a commissioner /Liaison Commissioner at the April 7, 1998, meeting, no special meeting of the board would have been scheduled, and the township would have continued to purchase its insurance from the Fioravante Agency rather than from Gallen Insurance. With regard to the latter, in reviewing the substance of Respondent's commentary at the Special Meeting, we find that Respondent's participation amounted to advancing and advocating in favor of the Gallen Insurance proposal, in contrast to the nondescript participation of the public official in Yarnall, Order 996, cited by Respondent. See, Michael Gallen's Post - Hearing Memorandum of Law, at 31 -33. As for the remaining alleged uses of authority of office, we shall address them, given that the parties have expended a great deal of time and effort on them, but we emphasize that they are not necessary to support the violation of Section 3(a)/1103(a) of the Ethics Act by Respondent in this matter. The element of use of authority of office has already been fully established by the above. For the record, we determine that Respondent did not use the authority of office in obtaining the township records requested by ID -2 for Gallen Insurance because the records were public documents, Respondent (and anybody else) was entitled to them in a private capacity, Respondent did nothing to indicate that he was requesting the documents in an official capacity, and Respondent is not accountable for the assumptions of township staff in that regard. However, we conclude that Respondent did use the authority of office in directing Turner to get the Fioravante premium information for the township for 1998. Regardless of the fact that the information was not obtained until after the Gallen Insurance proposal had been submitted, it was obtained and used by Respondent — albeit inaccurately —at the April 13, 1998, Special Meeting of the board. The use of the inaccurate figure may not have been Respondent's doing. Nevertheless, directing Turner to obtain a premium figure from Fioravante and using such a figure — accurately or inaccurately —for comparison to the Gallen Insurance proposal was a use of the authority of Respondent's public office and provides additional support for our finding of a violation of Section 3(a)/1103(a) of the Ethics Act by Respondent. We would note that it is not significant to our analysis whether the insurance through Gallen Insurance or through the Fioravante Agency was a "better deal" for the township. See, Zangrilli, Order 949 at 143 ( "A 'good' illegal deal is still an illegal deal. ") What is significant is that Respondent used the authority of his public office for the private pecuniary benefit of a member of his immediate family and /or Gallen Insurance, a business with which Respondent's father and other immediate family members are associated. Similarly, testimony that commissioners voted for the Gallen Insurance proposal to save the township money does not affect the outcome of this case. But for Respondent's intercessions, the matter of changing insurance carriers would not have come before the board for a vote. Moreover, while it is clear to us that Respondent's actions taken in his official capacity did affect the outcome of the township's choice of insurance carriers, we would parenthetically note that the case law is clear that the participation of a public Gallen, 98- 059 -C2 Page 37 official with a private pecuniary interest need not affect the outcome of his board's vote in order to violate the Ethics Act. Snyder v. State Ethics Commission, 686 A.2d 843 (Pa. Cmwlth. 1996), alloc. den., 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). Finally, we would note that Respondent's abstention from the board's vote on April 13, 1998, does not shield him from the obvious conclusion that he violated Section 3(a)/1103(a) of the Ethics Act. Use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No.809. Use of authority of office includes, for example, discussing, conferring with others, and lobbying for a particular result. Respondent engaged in all of these. By the time of the vote, Respondent had already "used the authority of office" sufficiently to support a violation of Section 3(a)/1103(a) of the Ethics Act. Respondent's uses of the authority of his office were for the private pecuniary benefit of one or more members of his immediate family and /or for Gallen Insurance, a business with which Respondent's father and various other members of Respondent's immediate family are associated. The resulting private pecuniary benefit consists of the commissions to Gallen Insurance relative to the Cumru Township insurance coverage, which the parties have stipulated total $14,373.12 for the period of April 1998 to October 6, 1999. Based upon all of the above, we find that there is clear and convincing evidence to support each element of a violation by the Respondent of Section 3(a)/1103(a) of the Ethics Act with regard to the allegation before us. Section 407(13)/1107(13) of the Ethics Act empowers this Commission to impose restitution in instances where a public official /public employee has obtained a financial gain in violation of the Ethics Act. Restitution in the amount of the commissions which have been received by Gallen Insurance is warranted. See, Kurtz, Order 1116. Accordingly, Respondent shall be ordered to pay restitution in the amount of $14,373.12 to Cumru Township through this Commission within 30 days of the mailing date of this Order. Non - compliance will result in the institution of an order enforcement action. Gallen, 98- 059 -C2 Page 38 IV. CONCLUSIONS OF LAW: 1. Michael Gallen ( "Gallen "), as a Commissioner for Cumru Township, was at all times relevant to this case a public official 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 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 collectively referred to herein as the "Ethics Act." 2. Gallen violated Section 3(a)/1103(a) of the Ethics Act when in 1998, he used the authority of his office for the private pecuniary benefit of a member of his immediate family and /or Gallen Insurance, a business with which Respondent's father and other members of Respondent's immediate family are associated, by participating in discussions and actions leading to Gallen Insurance being contracted with to provide insurance for Cumru Township. 3. The above violation is fully supported by the following uses of authority of office: (1) Respondent's participation at the April 7, 1998, meeting among Respondent, Foster and Shea, in which Respondent advanced a review of the township's insurance and, together with Foster, directed Shea to schedule a special meeting of the board of commissioners to review the township's insurance coverage; and (2) Respondent's participation in the board's discussions regarding the insurance and the Gallen Insurance proposal specifically at the board's Special Meeting on April 13, 1998, as reflected in the minutes. 4. An additional use of authority of office supporting the above violation consists of Respondent's direction to Cumru Township Assistant Secretary Turner to obtain a premium figure from the then carrying insurance agent for 1998, which information Respondent subsequently used — albeit inaccurately —for comparison to the Gallen Insurance proposal at the April 13, 1998, Special Meeting of the Cumru Township Board of Commissioners. 5. Respondent did not use the authority of office in obtaining the township records requested by ID -2 for Gallen Insurance, where the records were public documents, Respondent was entitled to them in a private capacity, Respondent did nothing to indicate that he was requesting the documents in an official capacity, and Respondent is not accountable for the assumptions of township staff in that regard. 6. The private pecuniary benefit element of Respondent's above violation of Section 3(a)/1103(a) of the Ethics Act consists of the resulting commissions to Gallen Insurance from the insurance coverage provided to Cumru Township, which commissions totaled $14,373.12 for the period of April 1998 to October 6, 1999. 7 Restitution is warranted in this case. In Re: Michael Gallen : File Docket: 98- 059 -C2 : Date Decided: 5/15/01 : Date Mailed: 5/30/01 ORDER NO. 1198 1 Michael Gallen ( "Gallen "), as a Commissioner for Cumru Township, Berks County, Pennsylvania, violated Section 3(a)/1103(a) of the Public Official and Employee 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 collectively referred to herein as the "Ethics Act," when in 1998, he used the authority of his office for the private pecuniary benefit of a member of his immediate family and /or Gallen Insurance (also referred to herein as "Gallen Insurance Agency" or "Gallen Insurance, Inc. "), a business with which Respondent's father and other members of Respondent's immediate family are associated, by participating in discussions and actions leading to Gallen Insurance being contracted with to provide insurance for Cumru Township. 2. Respondent is ordered to pay restitution in the amount of $14,373.12 to Cumru Township through this Commission within 30 days of the mailing date of this Order. a. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, DANEEN E. REESE, CHAIR