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HomeMy WebLinkAbout1209 HaydtIn Re: Melissa Haydt File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Louis W. Fryman, Vice Chair John J. Bolger Frank M. Brown Susan Mosites Bicket Donald M. McCurdy 00- 076 -C2 Order No. 1209 8/23/01 9/7/01 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 not filed and a hearing was waived. The record is complete. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Consent Agreement was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. §1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Haydt, 00- 076 -C2 Page 2 I. ALLEGATION: That Melissa Haydt, a public official /public employee, in her capacity as a Child Protective Service Supervisor for the Berks County Children & Youth Services violated Section 3(a)/1103 (a) of the Ethics Act (Act 93 of 1998) when, in her supervisory capacity, she made and /or approved referrals for treatment of youths to Reading specialists at a time when she was employed by Affinity Psychological Services, an entity within Reading Specialists, Inc. II. FINDINGS: 1. Melissa B. Haydt has been employed by the Berks County Children and Youth Services (BCCYS) for approximately 23 years. a. Since 1992 she has served as a Supervisor in the Sexual Abuse Unit of the Berks County Children and Youth Services since 1992. b. BCCYS Director of Intake Services Bette Sands is Haydt's immediate supervisor. c. George M. Kovarie serves as executive director of the BCCYS and is Sands immediate supervisor. 2. In her current position as Supervisor of the Sexual Abuse Unit, Haydt supervises five caseworkers who investigate allegations of sexual abuse of children. 3. Allegations of sexual abuse received by the BCCYS Screening Unit are forwarded to Haydt who assigns a caseworker to investigate the complaint. a. Haydt meets with the caseworker to determine a course of action which may include coordinating the investigation with a law enforcement agency, conducting interviews, providing the services of medical professionals, and providing the services of sexual abuse evaluators and treatment specialists. b. State law mandates that Haydt review the investigations with caseworkers every ten days. c. Haydt, in order to comply with the state regulation, meets with the caseworkers once a week to review the investigations. 4. Haydt's duties also include communicating with the medical professionals who examine and treat sexual abuse victims, informing the community about sexual abuse issues, performing administrative work within the Sexual Abuse Unit and meeting with providers who perform sexual abuse evaluations and treatment. a. Haydt, the case worker and clients work together to select agencies to provide sexual abuse evaluations and treatment. 5. Reading Specialists is a private agency that provides sexual abuse evaluations and treatment in Berks County. a. Robert W. Gill was the sole owner of Reading Specialists from 1988 to 1999. 6. Reading Specialists was the only provider of sexual abuse evaluations and treatment to clients of the BCCYS during 1992, 1993 and 1994. 7 Haydt was employed by Reading Specialist, on a part -time basis, as a sex abuse Haydt, 00- 076 -C2 Page 3 counselor in 1992, 1993 and 1994. 8. Haydt's part -time employment with Reading Specialists, during 1993 and 1994, was approved by BCCYS Executive Director George Kovarie and the Pennsylvania Department of Public Welfare. 9. In 1994 the Pennsylvania Inspector General's office conducted an investigation into a number of issues at the BCCYS, including whether Haydt's part -time employment at Reading Specialists constituted a conflict of interest. a. Inspector General William Chadwick issued a report dated July 8, 1994, which recommended that Haydt end her part -time employment with Reading Specialists. b. Chadwick's recommendation was based on DPW's regulations that management level employees of the county shall not receive remuneration from agencies [with] which the county contracts for children and youth services. 10. On July 13, 1994, Executive Director George Kovarie issued a memo to Haydt directing her to discontinue employment with Reading Specialists effective immediately. a. Kovarie's action was based on Chadwick's report. 11. Haydt ended her employment with Reading Specialists on or about July 13, 1994. 12. The BCCYS initiated policy in 1995 gave clients the choice of using the services of one of three sexual abuse evaluators and treatment counselors. a. The BCCYS sexual abuse unit caseworkers provide clients with a printed form listing the names and addresses of the three providers and the clients are given the opportunity to choose one of the providers and inform the caseworker of their choice. b. The three main providers used by BCCYS are: 1. Reading Specialists 2. Berks Counseling Associates P.C. 3. Berkshire Psychiatric and Behavioral Health c. A fourth agency, Alpha Counseling, can be used for Spanish speaking clients. 13. After the client makes an appointment with the provider, the caseworker contacts the provider and confirms the BCCYS approval of the evaluation or treatment. a. The caseworker prepares an authorization form that requires Haydt's authorization before the evaluation can begin. b. After discussing the client's evaluation with the caseworker and meeting with the provider in order to review the details of the client's evaluation, Haydt then authorizes the use of one of the providers, including Reading Specialists. 14. The provider, at the conclusion of the evaluation process, submits a report to the BCCYS outlining their findings and recommending a course of treatment, including Haydt, 00- 076 -C2 Page 4 [the] type of treatment and an estimate of the number of hours required to complete treatment. a. The client is given the opportunity to choose one of the three providers to provide treatment. b. Haydt and the caseworker then approve the hours and type of treatment or set the number of hours they feel will be necessary to successfully complete the treatment. c. Haydt then signs the form authorizing the treatment indicating her approval, before treatment can begin. 15. The BCCYS Sexual Abuse Unit is responsible for the case for a sixty -day period beginning at the time [the] investigation was opened. a. The case is transferred at the end of the sixty -day period to another unit within the BCCYS. b. The treatment period usually extends beyond the sixty -day period and the responsibility for overseeing the process is transferred to a caseworker and supervisor in the new unit. 16. Susan E. Kraus, is a psychologist employed by Reading Specialists, who developed a number of clients for the firm in the Lehigh County, Northampton County, and Bucks County areas. 17. In 1995, Robert Gill and Susan Kraus started Affinity Psychological Services, a sexual abuse evaluation and treatment service for clients in the Lehigh County, Northampton County, and Bucks County areas. 18. Affinity Psychological Services was a separate business entity from Reading Specialists. a. On a PA Department of State Application For Registration of Fictitious Name form, the address of 142 N. 11 Street, Reading, PA is listed as Affinity Psychological Services' principal place of business. b. Reading Specialists listed the address of 142 N. 11 Street, Reading, PA as their principal place of business on a 1994 PA Department of State Application for Registration of Fictitious Name form. 19. In December of 1996, Kraus offered Haydt a part -time position with Affinity Psychological Services to provide sexual abuse counseling in Affinity's Allentown, PA office. a. Haydt was informed she would not work with clients from Berks County or those referred through the BCCYS. b. This was done to avoid a conflict of interest as previously determined by the Office of Inspector General in 1994. 20. Haydt requested permission to work for Affinity Psychological Services from Executive Director Kovarie. a. Kovarie approved Haydt's part -time employment with Affinity. Haydt, 00- 076 -C2 Page 5 21. By letter dated December 9, 1996, Kovarie sought permission for Haydt's employment with Affinity from the PA Department of Welfare. a. The PA Department of Welfare did not respond to Kovarie's request. 22. Haydt did not take the position with Affinity Psychological Services in December 1996, based on the Department of Welfare's lack of response. 23. Kraus, in April of 1998, again offered Haydt a part -time position with Affinity Psychological Services. 24. On April 21, 1998, Haydt submitted a memorandum to Kovarie explaining that she had been offered a part -time position with Affinity and saw no conflict of interest with respect to DPW regulations as BCCYS does not have any contact with Affinity. 25. Kovarie forwarded Haydt's memorandum to Scott Semmel, Regional Representative of the PA Department of Welfare Children, Youth and Families on April 22, 1998, and sought Semmel's approval of Haydt's request. 26. On May 12, 1998, Semmel replied that based on the information contained in Kovarie's letter he did not see any regulatory concerns in reference to Haydt's employment with Affinity Psychological Services. 27. On June 1, 1998, Haydt entered into a consultant agreement with Affinity Psychological Services, 142 N. 11 Street, Reading, PA. a. The agreement stated that the relationship between Affinity and Haydt was that of an independent contractor and set Haydt's compensation at $35.00, per hour, for her work. 28. The consultant agreement was signed by Robert W. Gill and Susan E. Kraus on behalf of Affinity Psychological Services, and Melissa B. Haydt, consultant. 29. From June 1, 1998, through June 1999 Haydt provided counseling services, for Affinity Psychological Services, to clients at an office on 13 Street, in Allentown, PA. a. Both Kraus and Gill assigned clients to Haydt. 30. Haydt's duties included counseling clients and preparing her own documentation in reference to those sessions. a. None of Haydt's clients were [sic] referrals from Berks County Children and Youth Services. b. Haydt, in her capacity as a BCCYS Supervisor did not authorized [sic] any clients of BCCYS to be evaluated or treated by Affinity. 31. Haydt was compensated for her work by checks drawn on the account of Affinity Psychological Services at the Pennsylvania National Bank, Wyomissing, PA. a. Either Robert W. Gill or Susan E. Kraus signed the checks. b. Haydt was not provided medical benefits, retirement benefits, or leave benefits as a result of her business relationship with Affinity Psychological Services. Haydt, 00- 076 -C2 Page 6 32. Haydt was provided 1099 -Misc income forms, at the end of 1998 and 1999, showing income from Affinity Psychological Services, as non - employee compensation, in the following amounts: a. 1998 - $1,602.50 b. 1999 - $2,450.00 33. All payments received by Haydt from Affinity in 1998 and 1999 were not related to any clients of BCCYS. 34. Sometime prior to August 1999, Berks County Commissioner Glenn Reber began questioning Haydt's employment with Affinity Psychological Services. a. Reber believed that since the same parties owned both Reading Specialists and Affinity, conflicts for Haydt could exist. 35. In or about August 1999, the contract between Reading Specialists and Berks County was pending renewal. 36. Glenn Reber met with Gill and Kraus, owners of Reading Specialists and Affinity Psychological Services, and informed them that he felt Haydt's relationship with Affinity Psychological Services amounted to a conflict of interest as Reading Specialists had a contract with the County to provide evaluation and treatment services to clients provided through BCCYS. a. Reber informed Kraus and Gill that the County would not renew its contract with Reading Specialist unless Affinity Psychological Services terminated its contract with Haydt. 37. At the time of Reber's review of the Berks County contract with Reading Specialists and his meeting with Gill and Kraus, the BCCYS had jurisdiction in matters involving Reber's immediate family. 38. Michael J. Cammarano, an attorney representing Reading Specialists and Affinity Psychological Services, informed Haydt by letter dated August 3, 1999, that Berks County Commission[er] Reber considered her contract with Affinity Psychological Services to be a conflict of interest with her employment with BCCYS. a. Cammarano's letter further stated that he (Reber) intended to withhold renewal of Reading Specialist's contract with the county unless Affinity terminated its contract with Haydt. b. Cammarano's letter concluded that based on Reber's demands, Affinity was terminating its contract with Haydt effective immediately. 39. In March of 2000, attorneys representing Melissa Haydt filed a civil action (Number 00 -604) in the United States District Court for the Eastern District of Pennsylvania, alleging that Berks County Commissioners Glenn Reber and Randy Pyle, acting under the color of their positions as County Commissioners, forced Reading Specialists and Affinity Psychological Services to fire her in retaliation for her exercise of First Amendment activity, specifically the duties assigned to her by BCCYS and required by the Pennsylvania Child Protective Services Law and her truthful testimony provided in Court as a result of those duties. 40. On March 21, 2001, attorneys representing Berks County's errors and omissions insurance carrier and counsel for Haydt entered into an agreement resulting in Haydt, 00- 076 -C2 Page 7 Haydt receiving a $60,000 settlement and withdrawing her complaint. 41. Haydt's contract with Affinity Psychological Services has not been renewed. 42. Reading Specialists and Affinity Psychological Services merged in December of 1999 and is doing business as Reading Specialists. a. Reading Specialists is now owned jointly by Robert W. Gill and Susan E. Kraus. III. DISCUSSION: At all times relevant to this matter, the Respondent, Melissa Haydt, hereinafter Haydt, has been a public employee subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, et seq., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegation is that Haydt, in her capacity as a Child Protective Service Supervisor for the Berks County Children & Youth Services, violated Section 3(a)/1103 (a) of the Ethics Act when she made or approved referrals for treatment of youths to Reading Specialists at a time when she was employed by Affinity Psychological Services, an entity within Reading Specialists. Pursuant to Section 3(a)/1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows: Section 2/1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. §402/65 Pa.C.S. §1102. 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. Haydt, 00- 076 -C2 Page 8 As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are reproduced above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Haydt has been employed by the Berks County Children and Youth Services (BCCYS) for 23 years and has served as the Supervisor in the Sexual Abuse Unit since 1992. Haydt supervises five caseworkers who investigate allegations of sexual abuse of children. Haydt's duties and responsibilities include communicating with medical professionals who examine and treat sexual abuse victims, informing the community about sexual abuse issues, and performing administrative work for the unit, including meeting with providers who perform evaluations and treatment. Reading Specialists (RS) is a private agency that provides sexual abuse evaluations and is owned by Robert W. Gill (Gill). RS was the only provider of sexual abuse evaluations and treatments to BCCYS clients from 1992 through 1994. Haydt was employed by RS on a part -time basis as a sexual abuse counselor from 1992 through 1994. Although Haydt's part -time employment with RS during 1993 and 1994 was approved by the executive director of BCCYS and the Pennsylvania Department of Public Welfare (DPW), the Pennsylvania Inspector General's Office conducted an investigation in 1994 and then issued a report recommending that Haydt end her part -time employment with RS. The BCCYS executive director then issued a memo to Haydt directing her to discontinue her employment with RS, which she did on or about July 13, 1994. In 1995, BCCYS initiated a policy of giving clients a choice of using the services of one of three sexual abuse evaluators and treatment counselors. The three main providers used by BCCYS were RS, Berks Counseling Associates, P.C., and Berkshire Psychiatric and Behavioral Health. After a client makes an appointment with the provider, the caseworker contacts the provider and confirms BCCYS's approval of the evaluation or treatment. At the conclusion of the evaluation process, the provider submits a report to BCCYS outlining its findings and recommending a course of treatment. During the process, it is the client who is given the opportunity to choose one of the three providers for treatment. Haydt and the caseworkers then approve the hours and type of treatment or set the number of hours which are believed necessary to successfully complete the treatment. Susan E. Kraus (Kraus), a psychologist employed by RS, and Gill started Affinity Psychological Services (APS), a sexual abuse evaluation and treatment service for clients in Lehigh, Northampton, and Bucks Counties. APS was a separate business entity from RS. In December 1996, Kraus offered Haydt a part -time position with APS to provide sexual abuse counseling. Haydt was informed that she would not work with clients from Berks County or those referred through BCCYS so as to avoid conflicts of interest. Haydt then requested permission to work for APS from the BCCYS executive director who approved the part -time employment. The executive director then sought permission for Haydt's employment from DPW, which did not respond. Haydt did not take the position with APS based upon the lack of response from DPW. In April 1998, Krause again offered Haydt a part -time position with APS. Haydt submitted a memorandum to the BCCYS executive director advising that the part -time position with APS would not have a conflict under DPW regulations and that BCCYS did not have any contact with APS. The executive director forwarded the memo to DPW which responded that there were no regulatory concerns with Haydt's employment with APS based upon the information she provided. Haydt, 00- 076 -C2 Page 9 From June 1998 through June 1999, Haydt provided consulting services to APS which included counseling clients and preparing documentation in reference to her sessions. None of Haydt's clients was a referral from BCCYS. Haydt did not authorize any clients of BCCYS to be evaluated or treated by APS. All of the payments received by Haydt for performing consulting services for APS did not involve any BCCYS clients. In August 1999, Berks County Commissioner Glenn Reber began questioning Haydt's employment with APS based upon the concern that the same parties owned both RS and APS. Reber then met with Gill and Kraus and informed them that he believed Haydt's relationship with APS amounted to a conflict as to RS which had a contract with BCCYS to provide evaluation and treatment services to clients. Reber concluded that the county would not renew its contract with RS unless APS terminated its contract with Haydt. Thereafter, an attorney representing APS and RS informed Haydt that Reber considered her contract with APS to be a conflict with her BCCYS employment. The attorney then advised Haydt that APS was terminating its contract immediately in light of Reber's intention to withhold the renewal of the RS contract unless APS terminated its contract with Haydt. In March 2000, attorneys for Haydt filed a civil action in U.S. District Court alleging that Berks County Commissioners Reber and Randy Pyle forced Reading Specialists and APS to fire her in retaliation for the exercise of First Amendment activity. That case was subsequently settled with Haydt receiving a monetary settlement followed by the withdrawal of her complaint. At the present time, Haydt's contract with APS, which has merged with RS, has not been renewed. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations. The Consent Agreement proposes that this Commission find that no violation of Section 3(a)/1103(a) occurred when Haydt approved referrals for treatment to Reading Specialists because Haydt was not employed by Reading Specialists at the time of the referrals and no payments were made to Haydt by Reading Specialists for her actions as a BCCYS employee. In applying Section 3(a)/1103(a) of the Ethics Act to the instant matter, any violation must be based upon a use of authority of office to obtain a private pecuniary benefit for the public employee, a member of his /her immediate family, or business with which he /she or an immediate family member is associated. If any of the elements is missing, there is no legal basis for finding a violation of Section 3(a)/1103(a). See, McGuire and Marchitello v. SEC, 657 A.2d 1346 (Pa. Commw. 1995). Further, the Ethics Act requires that any violation be based upon clear and convincing proof, which is a higher standard than substantial evidence. Based upon the above criteria, we find no violation of Section 3(a)/1103(a) of the Ethics Act based upon the lack of any use of authority of office or private pecuniary benefit. First, given the five -year statute of limitations within the Ethics Act, we are precluded from reviewing the conduct of Haydt as to her part -time employment with RS from 1992 through 1994. The only other private benefit received by Haydt was from APS which occurred between June 1, 1998 and June of 1999. While at APS, none of Haydt's clients was a BCCYS referral. See, Fact Finding 30. Further, all the payments received by Haydt from APS were for services unrelated to BCCYS clients. See, Fact Finding 33. Accordingly, Haydt did not violate Section 3(a)/1103(a) of the Ethics Act in that she neither used the authority of office nor received a private pecuniary benefit as to referrals of BCCYS clients to a business with which she provided consultant services. Haydt, 00- 076 -C2 Page 10 We determine that the Consent Agreement submitted by the parties sets forth the proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. IV. CONCLUSIONS OF LAW: 1. Haydt, as a Child Protective Service Supervisor for the Berks County Children & Youth Services, is a public employee subject to the provisions of Act 9 of 1989/Act 93 of 1998. 2. Haydt did not violate Section 3(a)/1103(a) of the Ethics Act in that Haydt neither used the authority of office nor received a private pecuniary benefit as to referrals of BCCYS clients to a business with which she provided consultant services. In Re: Melissa Haydt ORDER NO. 1209 File Docket: 00- 076 -C2 Date Decided: 8/23/01 Date Mailed: 9/7/01 1 Haydt, as a Child Protective Service Supervisor for the Berks County Children & Youth Services, did not violate Section 3(a)/1103(a) of the Ethics Act in that Haydt neither used the authority of office nor received a private pecuniary benefit as to referrals of BCCYS clients to a business with which she provided consultant services. BY THE COMMISSION, DANEEN E. REESE, CHAIR