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HomeMy WebLinkAbout1236 Costenbader-JacobsonIn Re: Robin Costenbader- Jacobson File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Susan Mosites Bicket Donald M. McCurdy Michael Healey 00- 068 -C2 Order No. 1236 5/2/02 5/16/02 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 Act, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., by the above -named Respondent. At the commencement of its investi9ation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investi9ation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was waived. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Consent Agreement was subsequently approved. The averments in the Stipulation of Findings are quoted verbatim as the Findings in this Order. 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. §1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Costenbader- Jacobson 00- 068 -C2 Page 2 I. ALLEGATION: That Robin Costenbader - Jacobson, a public official /public employee, in her capacity as the Deputy Executive Director for the Pennsylvania Lottery violated Sections 1103(a); 1104(a) and 1105(b)(5) of the Public Official and Employee Ethics Law 65 Pa.C.S. §§1103(a); 1104(a) and 1105(b)(5) when she used the authority of her office for a private pecuniary benefit by submitting and being reimbursed by the Commonwealth for limousine rentals, mileage subsistence, parking and tolls and lodging unrelated to official Commonwealth travel; when she utilized Commonwealth credit cards for personal purchases; when she utilized Commonwealth cellular telephones for personal use; when she failed to file a Statement of Financial Interests for the 1999 calendar year; and when she failed to disclose sources of income on Statements of Financial Interests filed for the 1997 and 1998 calendar years. II. FINDINGS: 1. Robin Costenbader- Jacobson served as the Deputy Executive Director of the Pennsylvania State Lottery from December 1, 1997 to February 12, 1999. 2. The Pennsylvania State Lottery is a division of the Pennsylvania Department of Revenue. 3. Costenbader- Jacobson reported to Daniel K. Cook, Lottery Executive Director. 4. Lottery employees routinely attend out -of -state conferences directly relating to Lottery issues. a. The conferences regularly attended by Lottery employees include LaFluers, Public Gaming, and the National Association of State and Provincial Lotteries (NASPL). 5. Attendance by lottery employees at an out -of -state conference is to be pre- approved by the Secretary of Revenue and the Lottery Executive Director. a. The Secretary of Revenue must approve all Requests for Out -of -State Travel forms for employees of the Department of Revenue and the Lottery. b. The Lottery Executive Director approves individual attendance by Lottery employees at any conference. 6. Robert A. Judge served as the Secretary of Revenue from January 1995 through September 2000. 7. Costenbader- Jacobson attended five out -of -state conferences while employed by the State Lottery, as follows: a. The Marketing Forum, New York, NY- 05/04/98 — 05/07/98 b. LaFluers Lottery World, Washington, D.C.- 05/10/98 — 05/13/98 c. Public Gaming Lottery Expo, Denver, CO- 07/05/98 — 07/15/98 d. NASPL 1998- Lotteries Making a Difference, Phoenix, AZ - 10/03/98 — 10/07/98 e. LaFluers Strategic Alliance, Baltimore, MD- 11/12/98 — 11/14/98 Costenbader- Jacobson 00- 068 -C2 Page 3 8. Sometime prior to May 4, 1998, Lottery received a brochure and invitation letter for the 1998 Marketing Forum. a. The Forum was described as an annual marketing event held on the Queen Elisabeth II (QE2) cruise ship organized by Richmond Events, Inc., New York, NY. b. The Forum was first held in the United States in 1998. c. There is no registration fee for individuals to attend the Forum, which includes lodging and meals aboard the cruise ship. 1. The Marketing Forum is funded by fees charged to the exhibitors who attend the Forum. 9. Costenbader- Jacobson submitted a Request for Approval of Out of State Travel on April 13, 1998. a. The request identified the marketing forum and dates of May 4, 1998, to May 7, 1998. b. The purpose of the trip was explained as follows: "Marketing Forum 1998 — Senior Executives come together for two highly productive days. Each participant will be able to hear the latest industry thinking and to explore new ideas and make new contacts. There will be an opening address, keynote speakers, seminars, workshops, exhibitors and closing address. Sixty vendors and three hundred plus delegates will be in attendance. There will be opportunity to network and to be involved in strategic discussions, as well as to meet with suppliers. This will allow us to go forward with new marketing ideas. The marketing forum will be held from May 4, 1998, to May 7, 1998. c. Method of transportation was indicated as plane. d. Estimated total costs of $350.00 were identified as transportation $250.00 and meals $100.00. 10. The request was approved and signed by Secretary Judge on April 14, 1998. 11. Costenbader- Jacobson did not obtain the approval of her immediate supervisor, Daniel Cook. 12. Judge approved the out -of -state travel for Costenbader- Jacobson believing that Costenbader- Jacobson had received authorization from Cook to attend. 13. Costenbader- Jacobson attended the 1998 Marketing Forum that was held on Monday, May 4, 1998 to Thursday, May 7, 1998. 14. The itinerary for the marketing form included the following: a. May 4, 1998: Registration from 3:00 p.m. until 5:00 p.m. b. May 4, 1998: A keynote address between 5:00 p.m. and 7:00 p.m. Date Ex • ense Amount 05/04 126 Personal Vehicle Miles .39.06 05/04 Limousine Rental- J & J Leasing 228.85 05/04 New York Helmsley Hotel 262.48 05/04 Parking Garage 41.50 05/05 Work Related Phone Calls 5.42 05/06 Subsistence 40.00 05/06 New York Turnpike Charges 2.80 05/06 Lincoln Tunnel Charge 4.00 05/07 Subsistence 40.00 05/07 Taxi from Pier to Hotel 10.00 05/08 Subsistence 47.00 05/08 126 Personal Vehicle Miles 39.06 Total: $760.17 Costenbader- Jacobson 00- 068 -C2 Page 4 c. May 4, 1998: Departure of the QE2 from the Manhattan Pier at approximately 7:30 p.m. d. May 5 -6, 1998: One -on -one meetings, group meetings, and speaker presentations. e. May 7, 1998: Return of the QE2 to the Manhattan Pier at approximately 7:30 a.m. 1. All delegates were required to exit the ship by 9:30 a.m. on May 7, 1998. 15. On May 19, 1998, Costenbader - Jacobson prepaid and submitted Form STD -191 Travel Expense Voucher (TEV) No. 502817 for reimbursement to the Bureau of Commonwealth Payroll Operations (BCPO). a. This TEV included Costenbader - Jacobson's travel expenses in relation to the Marketing Forum. b. The front page of the TEV was completed by Anna Horton based on information provided by Costenbader- Jacobson. 1. Horton served as the secretary for the Director of Marketing and Games for the PA Lottery. c. The back page (purpose of travel section) of the TEV was completed by Cheryl Swain based on information provided by Costenbader- Jacobson. 1. Swain served as Costenbader - Jacobson's secretary. d. The form was signed as approved by Cook on May 19, 1998. 1. Cook approved the TEV based on Judge's authorization for Costenbader - Jacobson's out -of -state travel. 16. Costenbader- Jacobson submitted and was reimbursed for the following expenses in relation to the Marketing Forum as outlined on TEV No. 502817: 17. Costenbader- Jacobson received payment for these expenses with Commonwealth Treasury Check No. 08009289 in the amount of $1,672.21. Costenbader- Jacobson 00- 068 -C2 Page 5 a. This check also included payment for other travel related expenses claimed by Costenbader- Jacobson for Lottery business. b. The check was endorsed by Costenbader- Jacobson and deposited into a personal account at National Penn Bank. 18. Costenbader- Jacobson was authorized to travel to New York via air transportation by Transportation Order No. 682015. a. The transportation order approved air travel for Costenbader- Jacobson to travel from Reading, PA to Newark, NJ on May 4, 1998. b. The cost of the airfare was $243.00. 19. Costenbader- Jacobson did not utilize Transportation Order No. 682015. a. Costenbader- Jacobson canceled the air reservation and traveled to New York by limousine. 20. Costenbader- Jacobson rented a limousine from J & J Limousine that picked her up from her residence on May 4, 1998, at 11:15 a.m. and drove her to the QE2 at the New York City pier. a. The cost of the limousine rental with gratuity totaled $228.85. b. Costenbader paid for the limousine rental using her Commonwealth issued American Express Credit. 21. Commonwealth of Pennsylvania Management Directive No. 230 (Amended) governs travel and subsistence allowances and outlines reimbursable expenses for officials and employees in agencies under the Governor's jurisdiction. a. Lottery is under the Governor's jurisdiction. 22. Section 09 (d) of Management Directive No. 230 relates to car rentals and states, in part: "Use of rental cars or other special conveyances will be allowed only when a Commonwealth -owned vehicle, private vehicle, or other public means of transportation is not available. All such expenditures must be justified. Itemized receipts are required for rental cars, for gas and /or other emergency repairs. Rental car selection is limited to compact or intermediate unless a larger car can be justified." a. This section does not provide for or prohibit limousine rentals. b. The section does allow for "special conveyances" when justified. c. Costenbader- Jacobson had a permanently assigned State automobile at that time which was available for her use. 23. Costenbader- Jacobson believed that she would not have been permitted to travel with a state vehicle out of state and that the cost of using the automobile and the cost of parking the vehicle in New York City for several days would have exceeded the cost actually incurred by the rental. Costenbader- Jacobson 00- 068 -C2 Page 6 24. Costenbader- Jacobson also submitted for and was reimbursed $78.12 for round trip personal vehicle mileage in association with her travel to the Marketing Forum even though she utilized the services of a limousine service for transportation to New York. a. Costenbader- Jacobson listed and was reimbursed $39.06 for 126 personal vehicle miles for travel from Reading to New York on May 4, 1998. b. Costenbader- Jacobson did not incur personal mileage expense on May 4, 1998. c. Costenbader- Jacobson listed and was reimbursed $39.06 for 126 personal vehicle miles for travel from New York to Reading on May 8, 1998. 25. Costenbader- Jacobson noted on the purpose of travel section of TEV No. 502817 that her husband drove a personal vehicle to New York City to pick her up and return to Reading, PA on May 8, 1998, two days after the end of the conference. 26. Costenbader- Jacobson would have been authorized to reimbursement for return transportation to her residence. 27. Costenbader- Jacobson would not have been authorized to claim reimbursement for her husband's mileage to [sic] New York on May 8, 2998 [sic], in the amount of $39.06. 28. Costenbader- Jacobson erroneously claimed the 126 personal vehicle miles traveled to New York on TEV No. 502817 as being incurred on May 4, 1998, rather than May 8, 1998, as noted on the purpose section of the expense voucher and the actual date the miles were traveled. 29. Costenbader- Jacobson submitted expense reimbursement for subsistence expenses while attending the marketing forum even though meals were included as part of the forum. 30. Costenbader- Jacobson submitted for and was reimbursed $40.00 for subsistence expenses incurred on May 6, 1998. a. Meals on May 6, 1998, on the QE2 were provided as part of the marketing forum. 31. During the ship cruise, Costenbader- Jacobson was ill and was required to take medication. She also took liquids to assist her in dealing with her illness and was charged by the ship for that expense. a. The total expense for the medical charge and the liquids totaled $37.95. 32. Commonwealth of Pennsylvania travel policies prohibit employees from seeking or receiving reimbursement for meals when provided by another source. 33. Section 03 (d) of Management Directive No. 230 relates to general travel policy and states, in part: "Employees will not be eligible for reimbursement of meals or lodging when furnished by the Commonwealth without charge or when furnished free by friends, relatives, or any other source. Meals or lodging which are provided free must be noted on the daily purpose of the travel section of the Travel Expense Voucher" Costenbader- Jacobson 00- 068 -C2 Page 7 34. Reimbursement for medical expenses are not an authorized travel expense for which Respondent may be claimed. a. Medical expenses are not considered subsistence. 35. Costenbader- Jacobson did not list on TEV No. 502817 that all meals were included as part of the Marketing Forum. 36. The Marketing Forum ended on the morning of May 7, 1998, and all passengers were required to exit the QE2 by 9:30 a.m. 37. Costenbader- Jacobson exited the QE2 by 9:30 a.m. on May 7, 1998, and did not return to Pennsylvania on May 7, 1998. 38. Costenbader- Jacobson stayed overnight in New York City after the completion of the Marketing Forum. 39. Costenbader- Jacobson submitted on expense voucher No. 502817 expenses she incurred during the additional day that she spent in New York after the forum including hotel, subsistence, parking, and telephone. 40. Costenbader- Jacobson stayed in the New York Helmsley Hotel, 212 East 42 Street, New York, NY, from May 7, 1998, to May 8, 1998 as indicated by hotel Folio No. 5K2RL. a. Costenbader- Jacobson attempted to check into the hotel at 9:40 a.m. on May 7, 1998. 1. Costenbader - Jacobson's room was not available at that time. 2. Check -in time at the hotel is 3:00 p.m. b. The registration card and hotel folio indicate husband also stayed in the hotel. 41. The total amount of $333.76 contained on Folio No. charges: Room (w /taxes)- Parking - Food /Beverage- Phone - Total: $262.48 41.50 24.36 5.42 $333.76 that Costenbader - Jacobson's 5K2RL included the following 42. Costenbader- Jacobson paid for the hotel charges using her Commonwealth American Express Credit Card. 43. Costenbader- Jacobson reported the expense of $262.48 for the hotel room on TEV No. 502817 as being incurred on May 4, 1998, rather than May 7, 1998, as noted on the hotel folio. 44. Costenbader- Jacobson did not request or receive government rates for the New York Helmsley Hotel. a. The government rate at the hotel was approximately $150.00 per night in 1998. Costenbader- Jacobson 00- 068 -C2 Page 8 b. The cost of Costenbader - Jacobson's room was over $100.00 more per night than the cost of a room at the government rate. c. No justifications for exceeding the government rate were provided as required by management directive. 45. Commonwealth Travel Policy, Section 10 (a) of Management Directive No. 230, which requires travelers to seek government rates provides as follows: "Government rates must be requested by all travelers and confirmed at the time reservations are made and at the time of check -in." 46. Costenbader- Jacobson submitted on TEV No. 502812 parking expenses of $41.50 for overnight parking at the New York Helmsley Hotel. a. Costenbader- Jacobson noted on the purpose of travel section of TEV No. 502817 that her husband drove a personal vehicle to New York to pick her up and return to Reading, PA on May 8, 1998. b. Costenbader - Jacobson's husband's personal vehicle was parked overnight from May 7, 1998, to May 8, 1998, at the New York Helmsley Hotel. 47. Costenbader- Jacobson submitted reimbursement for subsistence on TEV No. 502817 totaling $87.00 on May 7, 1998, and May 8, 1998, while in overnight travel status. a. The expenses claimed were incurred after the marketing forum ended. b. Costenbader- Jacobson submitted and was reimbursed $40.00 for subsistence on May 7, 1998, while staying in New York after the Marketing Forum. 1. This included $24.36 for food and alcoholic beverages charged to Costenbader - Jacobson's hotel room. c. Costenbader- Jacobson submitted and was reimbursed $47.00 for subsistence on May 8, 1998, the second day after the Marketing Forum ended. 48. Commonwealth Travel Policy, Section 03 (a) and (c) of Management Directive No. 230 provides as follows regarding reimbursements: a. Part (a) states, in part: "Employees shall be entitled to receive reimbursement of for out -of- pocket expenses incurred in the performance or their duties within the prescribed maximums." b. Part (c) states, in part: "Alcoholic beverages are strictly prohibited from reimbursement." c. Costenbader- Jacobson was not performing official Commonwealth business on May 7, 1998, and May 8, 1998. 49. Costenbader- Jacobson would have been authorized for subsistence reimbursement during her return travel to residence or headquarters. Costenbader- Jacobson 00- 068 -C2 Page 9 50. Costenbader- Jacobson claimed reimbursement on TEV No. 502817 of $10.00 for taxi fare from the New York Pier to the New York Helmsley Hotel on May 7, 1998. 51. Section 03 (a) of Commonwealth Management Directive No. 230 relating to general travel policy provides, in part, the following regarding reimbursement for out of pocket expenses: "Employees shall be entitled to receive reimbursement of for out -of- pocket expenses incurred in the performance or their duties within the prescribed maximums." 52. The following were not authorized expenses pursuant to Commonwealth policy. Mileage (one way for husband) Medical expenses Parking (husband's vehicle) Excess room rate Food with alcoholic beverage $ 39.06 40.00 41.50 112.48 24.36 $257.40 The following findings relate to the allegation that Robin Costenbader- Jacobson used Commonwealth Voyager Credit Card to make fuel purchases for personal vehicles. 53. Robin Costenbader- Jacobson was assigned a Commonwealth vehicle for use in her position as Lottery Deputy Executive Director. a. Costenbader- Jacobson was assigned Equipment, a 1993 Dodge Dynasty. 54. A Commonwealth issued Voyager Credit Card was assigned to Costenbader- Jacobson when she was assigned the Commonwealth vehicle. a. The credit card was to be used for expenses related specifically to the operation of the Commonwealth vehicle assigned to Costenbader - Jacobson. 55. Costenbader - Jacobson's Commonwealth Voyager Gas Card was used to purchase automobile fuel not used in her permanently assigned state vehicle. 56. Section 03 (I) of Commonwealth Management Directive No. 230 relating to general travel policy provides in part the following regard: "Employees are responsible for ensuring that expenses claimed on Form STD - 191 are proper, accurate, and incurred in accordance with this directive. The careless, fraudulent, or negligent preparation of Form STD -191 will require financial restitution and may result in disciplinary action. In addition, a traveler who knowingly presents a false, fictitious, or fraudulent claim against the Commonwealth may be subject to penalties under criminal statutes. The offense becomes a felony when the traveler had the intent to defraud." 57. Voyager Vehicle Reports for Voyager Card confirm that Costenbader- Jacobson made purchases of diesel fuel totaling $27.85 using her Commonwealth Voyager Gas Card. a. Costenbader - Jacobson purchased 12.4 gallons of diesel fuel totaling $16.75 at a cost of $1.351 per gallon on May 27, 1998. Costenbader- Jacobson 00- 068 -C2 Page 10 b. Costenbader- Jacobson purchased 11.2 gallons of diesel fuel totaling $11.10 at a cost of $.991 per gallon on October 13, 1998. c. The diesel fuel purchases were made from Kirns Service Station, 450 West Lancaster Road, Shillington, PA 19607. 58. Monthly Automotive Activity Reports, STD -554, were completed and submitted by Costenbader- Jacobson when operating her state assigned vehicle. a. The 1993 Dodge Dynasty assigned to Jacobson did not use diesel fuel. 59. Monthly Automotive Activity Report completed by Costenbader- Jacobson for May 1998 reflects use of a state vehicle to travel from Reading to Harrisburg and back to Harrisburg on May 27, 1998. a. 12.4 gallons of fuel are reported to be purchased on May 27, 1998, a Wednesday. b. Entered on May 26, 1998, and May 28, 1998, by Costenbader- Jacobson is "own car used" indicating that a Commonwealth vehicle was not used on the days before and after the gas purchase. 60. Monthly Automotive Activity Report for October 1998 completed by Costenbader- Jacobson confirms a reported fuel purchase of 11.2 gallons of gasoline on October 13, 1998. a. Costenbader- Jacobson reported using her state vehicle to travel from Reading to Harrisburg. 61. The total charges made on Costenbader - Jacobson's Commonwealth Voyager credit card to purchase diesel fuel totaled $27.85. The following findings relate to the allegation that Robin Costenbader- Jacobson used Commonwealth provided cellular telephones for personal telephone calls. 62. Costenbader- Jacobson was assigned a Commonwealth owned cellular phone for use while on official business during the period of her employment with the State Lottery. a. Service for the cellular hone issued to Costenbader - Jacobson was provided by Cellular One and billed at Account No. 200 - 179 -5017. 63. Costenbader- Jacobson used her Commonwealth cellular phone to make calls of a personal nature to her husband, her daughter, and her daughter's caregiver. 64. By memorandum dated October 23, 1998, Thomas Shaub, Director of the Bureau of Fiscal Management, advised Costenbader- Jacobson to review her cellular phone bills and reimburse the Department of Revenue for any personal calls. a. Shaub also referred Costenbader- Jacobson to review applicable sections of the Department's Standards of Conduct for Employees of the Department of Revenue. 65. On October 27, 1998, Costenbader- Jacobson reimbursed the Department of Revenue $283.53 for personal use the Commonwealth cellular telephone. Costenbader- Jacobson 00- 068 -C2 Page 11 a. In correspondence submitted with the reimbursement, Costenbader- Jacobson indicated that she was unfamiliar with the policy and obtained a copy of the Standards of Conduct for Employees of the Department of Revenue subsequent to Shaub's October 23, 1998, memorandum. 66. Costenbader- Jacobson actually received a copy of the Standards of Conduct for Employees of the Department of Revenue on December 1, 1997, her first day of employment with the State Lottery. 67. Costenbader- Jacobson signed a Distribution and Acknowledgement of Handbook form verifying receipt of a copy of the Standards of Conduct for Employees of the Department of Revenue that was placed in her official personnel folder. a. The Distribution and Acknowledgement of Handbook form states, in part: "You are cautioned to read and become familiar with the contents of this manual since violations may result in disciplinary action, including suspension, dismissal, or criminal prosecution, if warranted." b. The form is signed and dated by Costenbader- Jacobson on December 1, 1997. The following findings relate to the allegation that Robin Costenbader- Jacobson failed to file a Statement of Financial Interests for the 1999 calendar year and failed to disclose sources of income on Statements of Financial Interests filed for the 1997 and 1998 calendar years. 68. Costenbader- Jacobson, in her capacity as the Deputy Executive Director of the State Lottery, filed Statements of Financial Interests for calendar years 1997 and 1998. a. Costenbader- Jacobson was employed in this capacity from December 1, 1997 through February 12, 1999. 69. Costenbader - Jacobson's Statements of Financial Interests filed in 1999 for calendar year 1998, and in 1998 for 1997 did not list information as follows: a. Costenbader- Jacobson filed a Statement of Financial Interests for calendar year 1998 on April 27, 1999. 1. Costenbader- Jacobson failed to list the Commonwealth, Department of Revenue, or State Lottery as a direct or indirect source of income on line 10. 2. Costenbader- Jacobson failed to list any source(s) income on line 10. b. Costenbader- Jacobson filed a Statement of Financial Interests for calendar year 1997 on May 14, 1998. 1. Costenbader- Jacobson failed to list the Commonwealth, Department of Revenue, or State Lottery as a direct or indirect source of income on line 10. 2. Costenbader- Jacobson filed after the May 1, 1998, deadline. 3. The late filing may have been occasioned by clerical error. Costenbader- Jacobson 00- 068 -C2 Page 12 70. Costenbader- Jacobson did not file Statements of Financial Interests by May 1, 2000, for calendar year 1999. a. Costenbader- Jacobson did not file a Statement of Financial Interests by May 1, 2000, one year after leaving her State employment. III. DISCUSSION: At all times relevant to this matter, the Respondent, Robin Costenbader- Jacobson, hereinafter Costenbader- Jacobson, has been 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 referred to herein as the "Ethics Act." The issues are whether Costenbader- Jacobson, as the Deputy Executive Director for the Pennsylvania State Lottery, violated Sections 1103(a), 1104(a) and 1105(b)(5) of the Ethics Act as to the allegations that she: (1) used the authority of her office for a private pecuniary benefit when she submitted a Commonwealth travel expense voucher for limousine rentals, mileage, subsistence, parking, tolls, and lodging unrelated to official Commonwealth travel for which she received reimbursement from the Commonwealth, utilized Commonwealth credit cards for personal purchases, and utilized Commonwealth cellular telephones for personal use; (2 failed to file a Statement of Financial Interests for the 1999 calendar year; and (3) failed to isclose sources of income on Statements of Financial Interests filed for the 1997 and 1998 calendar years. 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 f of ce 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. Costenbader- Jacobson 00- 068 -C2 Page 13 Section 4/1104. Statement of financial interests required to be filed (a) Public official or public employee. - -Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. 65 P.S. § 404(a)/65 Pa.C.S. §1104(a). Section 4(a)/1104(a) of the Ethics Act requires that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Section 5/1105. Statement of financial interests (b) Required information. - -The statement shall include the following information for the prior calendar year with regard to the person required to file the statement. (5) The name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. However, this provision shall not be construed to require the divulgence of confidential information protected by statute or existing professional codes of ethics or common law privileges. 65 P.S. § 405(a)/65 Pa.C.S. §1105(b)(5). Section 5(b )/1105(b) of the Ethics Act requires that every public official /public employee and candidate list the name and address of any direct or indirect source of income totaling in the aggregate of $1,300 or more. 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. From December 1997 to February 12, 1999, Costenbader- Jacobson served as the Deputy Executive Director of the Pennsylvania State Lottery (State Lottery), a division of the Pennsylvania Department of Revenue (Revenue). As Deputy Executive Director, Costenbader- Jacobson reported to the State Lottery Executive Director. Costenbader- Jacobson 00- 068 -C2 Page 14 While employed by the State Lottery, Costenbader- Jacobson would frequently attend out -of -state conferences, for which she would be required to obtain the approval of the Secretary of Revenue and the State Lottery Executive Director. From May 4, 1998 to May 7, 1988, Costenbader- Jacobson attended the 1998 Marketing Forum (Forum), an annual marketing event held on the Queen Elisabeth II cruise ship, which departed from and returned to the Manhattan Pier in New York City, New York. Costenbader- Jacobson only obtained approval to attend the Forum from the Secretary of Revenue; she did not obtain approval from her immediate supervisor, the State Lottery Executive Director. After returning from the Forum, Costenbader- Jacobson submitted Commonwealth Travel Expense Voucher (TEV) No. 502817 for expenses she claimed were related to her attendance at the Forum. TEV No. 502817 included expenses for limousine rental, personal vehicle miles, subsistence, lodging, telephone calls, parking, taxi fare, and tolls. Costenbader- Jacobson received payment for these expenses from the Commonwealth in the amount of $1,672.21, which amount also included payment for other travel related expenses for which she requested reimbursement. As to the individual expenses claimed on TEV No. 502817, the Stipulation of Findings reflects the following. Although Costenbader- Jacobson was authorized to travel to New York by air to attend the Forum, she canceled her air reservation and chose instead to travel by limousine. On May 4, 1998, a limousine picked Costenbader- Jacobson up from her residence in Reading and drove her to the Queen Elisabeth 11 cruise ship in New York City. Costenbader- Jacobson paid the $228.85 limousine fare with her Commonwealth issued credit card. Management Directive No. 230, which relates to car rentals, permits use of "other special conveyances" only when a Commonwealth -owned vehicle, private vehicle, or other public means of transportation is not available. Costenbader- Jacobson had a permanently assigned Commonwealth vehicle, which was available for her use at that time. Costenbader- Jacobson requested reimbursement on TEV No. 502817 for 126 personal vehicle miles, which she claimed she incurred in relation to her travel from Reading to New York on May 4, 1998, and from New York to Reading on May 8, 1998. Costenbader- Jacobson did not incur any personal mileage expenses on May 4, 1998 because, as noted above, she utilized limousine services to transport her from Reading to New York City that day. Costenbader- Jacobson noted that her husband had driven his personal vehicle to New York City to pick her up and return to Reading, Pennsylvania on May 8, 1998, two days after the Forum had ended. Even though meals were included in the Forum, Costenbader- Jacobson submitted reimbursement for subsistence expenses in the amount of $40.00 for May 6, 1998. The "subsistence" expenses claimed by Costenbader- Jacobson were, in fact, expenses for medication totaling $37.95 that she was required to take for an illness during the cruise. On May 7, 1998, the Forum concluded. However, Costenbader- Jacobson did not return to Pennsylvania that day, but stayed overnight at the New York Helmsley Hotel in New York City from May 7, 1998 to May 8, 1998. The cost of the hotel room at the Helmsley exceeded the $150.00 per night government rate for hotel rooms in 1998 by approximately $112.00. The hotel folio for Costenbader - Jacobson's stay at the Helmsley reflected a total charge of $333.76, including the following charges: room, $262.48; parking, $41.50; food/ beverage, $24.36; and telephone, $5.42. Costenbader- Jacobson included all of the charges on the hotel folio on TEV No. 502817; however, none of them were incurred in connection with her attendance at the Forum. The parking charge was for her husband parking his personal vehicle at the Helmsley Hotel from May 7, 1998 to May 8, 1998. The subsistence expenses for May 7, 1998, Costenbader- Jacobson 00- 068 -C2 Page 15 included the $24.36 food /beverage charge, which was actually a charge for food and alcoholic beverages charged to Costenbader - Jacobson's hotel room during her stay at the Helmsley. Costenbader- Jacobson included this expense in spite of Management Directive No. 230, which strictly prohibits reimbursement of alcoholic beverages. The subsistence charges for May 7th and 8th as well as the $5.42 telephone charge, erroneously reported as having been made on May 5, 1998, were incurred after the Forum event had ended. Costenbader- Jacobson claimed reimbursement for a $10.00 taxi fare from the New York Pier to the New York Helmsley Hotel on May 7, 1998. Management Directive No. 230 provides that employees shall be entitled to reimbursement for out -of- pocket expenses incurred in the performance of their duties. The cost of the taxi ride to the Helmsley was not a work - related expense. In addition to claiming and receiving reimbursement for expenses unrelated to official Commonwealth travel, the Stipulation of Findings also reflects that Costenbader- Jacobson purchased fuel for her personal vehicle using her Commonwealth issued credit card. On Monthly Automotive Activity Reports for May and October 1998, Costenbader- Jacobson indicated that she had purchased with her Commonwealth assigned credit card a total of $27.85 worth of diesel fuel for her Commonwealth assigned vehicle, a 1993 Dodge Dynasty. The Dodge Dynasty, however, did not use diesel fuel. Further, Costenbader- Jacobson used her Commonwealth assigned cellular telephone to make personal calls. Commonwealth assigned cellular telephones were only to be used for work related calls. After the Director of the Bureau of Fiscal Management advised Costenbader- Jacobson to review her cellular telephone bills and reimburse the Department of Revenue for any personal calls, she reimbursed Revenue $283.53 on October 27, 1998. On Statements of Financial Interests filed by Costenbader- Jacobson as Deputy Executive Director of State Lottery for the 1997 and 1998 calendar years, she failed to list the Commonwealth, Department of Revenue or the State Lottery as a direct or indirect source of income on line 10. In addition, Costenbader- Jacobson failed to file a Statement of Financial Interests for calendar year 1999 by May 1, 2000, the year after leaving Commonwealth employment. 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: (a) technical violations of Section 1103(a), as to Costenbader - Jacobson's receipt of reimbursement for certain expenses as identified in Finding No. 52, use of a Commonwealth cellular telephone for personal purposes, and use of a Commonwealth credit card to purchase fuel that was not for a Commonwealth vehicle; (b) no violation of Section 1105(b)(5) of the Ethics Act, as to Costenbader- Jacobson's failure to disclose the Pennsylvania Department of Revenue as a source of income on Statements of Financial Interests filed for the 1997 and 1998 calendar years, as such was inconsequential in that the Department of Revenue was listed as a place of employment on those forms; (c) a violation of Section 1104(a) of the Ethics Act, as to Costenbader - Jacobson's failure to file a Statement of Financial Interests for calendar year 1999; (d) an agreement by Costenbader- Jacobson to make payment in the amount of $500.00 within thirty (30) days of the issuance of this Order through this Commission to the Commonwealth of Pennsylvania; and (e) an agreement by Costenbader- Jacobson to file a Statement of Financial Interests for calendar year 1999 within thirty (30) days of the date of the issuance of this Order. As to Section 1103(a), Costenbader- Jacobson, as Deputy Executive Director of the State Lottery, submitted a Commonwealth travel expense voucher for expenses unrelated to Costenbader- Jacobson 00- 068 -C2 Page 16 Commonwealth travel, utilized a Commonwealth issued credit card to purchase fuel for her personal vehicle, and utilized a Commonwealth cellular telephone to make personal calls. Such actions by Costenbader- Jacobson were uses of authority of office. See, Juliante, Order 809. The uses of authority of office by Costenbader- Jacobson resulted in private pecuniary benefits to herself consisting of payments by the Commonwealth of her personal travel, fuel, and telephone expenses. As to the travel expenses, the Stipulation of Findings reflect that Costenbader - Jacobson failed to obtain the approvals of both the Director of Revenue and the Executive Director of the State Lottery to attend the Forum, an out -of -state conference. In that Costenbader- Jacobson was not authorized to attend the Forum without the requisite approvals, the expenses incurred in relation to the Forum were not authorized as well. The Stipulation of Findings also reflects that Costenbader- Jacobson erroneously submitted information on TEV No. 502817 as to the dates on which certain expenses were incurred, making it appear that those expenses were related to official Commonwealth business. Since the expenses on TEV No. 502817 were not related to Costenbader - Jacobson's attendance at the Forum, she was not authorized to receive reimbursement from the Commonwealth. As to the fuel purchases, the Stipulation of Findings indicates that Costenbader - Jacobson erroneously submitted information on Monthly Automotive Activity Reports, making it appear as though she had purchased fuel for her Commonwealth assigned vehicle. Such activity constituted a use of governmental property for private use as did Costenbader - Jacobson's utilization of the Commonwealth's cellular telephone for personal calls. Accordingly, as to the above, we find that Costenbader- Jacobson technically violated Section 1103(a) of the Ethics Act when she used the authority of office to obtain private pecuniary benefits for herself by submitting a Commonwealth travel expense voucher for certain expenses as identified in Fact Finding No. 52 and receiving reimbursement from the Commonwealth for the same when such expenses were unrelated to official Commonwealth business; utilizing a Commonwealth issued credit card to purchase fuel for her personal vehicle; and utilizing a Commonwealth cellular telephone to make personal calls. Regarding the above, our decision is consistent with prior precedent that a public official /public employee may only receive that which is authorized in law. See, Choura, Order 942. In this case, Costenbader- Jacobson submitted and received financial gains for expenses that were not related to her position as Deputy Executive Director of the State Lottery. Further, a review of the record reflects that this was not a case of inadvertent action or misunderstanding on Costenbader - Jacobson's part. To the contrary, Costenbader- Jacobson submitted expenses as to which she knew she was not entitled. Costenbader - Jacobson's actions were contrary to the letter and spirit of the Ethics Act. As to Section 1105(b)(5), although this section requires a public official /public employee to list his governmental body as a direct or indirect source of income if such income totals $1,300 or more, we will accept the parties' Consent Agreement in this instance based upon their statement that Costenbader- Jacobson did, in fact, list the Department of Revenue as her place of employment on her Statements of Financial Interests for the 1997 and 1998 calendar years. Finally, the Stipulation of Findings reflects that Costenbader- Jacobson terminated Commonwealth employment on February 12, 1999, but failed to file a Statement of Financial Interests by May 1 of 2000, the year after she left her position. Accordingly, Costenbader - Jacobson violated Section 1104(a) of the Ethics Act when she failed to file a Statement of Financial Interests for the 1999 calendar year by May 1 of 2000. 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 Costenbader- Jacobson 00- 068 -C2 Page 17 the totality of the facts and circumstances. Accordingly, Costenbader- Jacobson is directed to make payment in the amount of $500.00, payable to the Commonwealth of Pennsylvania through this Commission and to file a Statement of Financial Interests for calendar year 1999, within thirty (30) days of the date of the issuance (mailing) of the final adjudication in this matter. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Costenbader- Jacobson, as the Deputy Executive Director for the Pennsylvania Lottery, was a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Costenbader- Jacobson technically violated Section 3(a)/1103(a) of the Ethics Act as to the receipt of reimbursement for certain expenses as identified in Finding No. 52; the use of a Commonwealth cellular telephone for personal purposes; and the use of a Commonwealth credit card to purchase fuel that was not for a Commonwealth vehicle. 3. Costenbader- Jacobson did not violate Section 5(b)/1105(b)(5) of the Ethics Act regarding her failure to disclose the Pennsylvania Department of Revenue as a source of income on Statements of Financial Interests filed for the 1997 and 1998 calendar years in that she listed the Pennsylvania Department of Revenue as a place of employment. 4. Costenbader- Jacobson violated Section 4(a)/1104(a) of the Ethics Act when she failed to file a Statement of Financial Interests for calendar year 1999 by May 1 of 2000, the year after she left her Commonwealth position. In Re: Robin Costenbader- Jacobson ORDER NO. 1236 File Docket: 00- 068 -C2 Date Decided: 5/2/02 Date Mailed: 5/16/02 1. Costenbader- Jacobson, as the Deputy Executive Director for the Pennsylvania Lottery, technically violated Section 3(a)/1103(a) of the Ethics Act as to the receipt of reimbursement for certain expenses as identified in Finding No. 52; the use of a Commonwealth cellular telephone for personal purposes, and the use of a Commonwealth credit card to purchase fuel that was not for a Commonwealth vehicle. 2. Costenbader- Jacobson did not violate Section 5(b)/1105(b)(5) of the Ethics Act regarding her failure to disclose the Pennsylvania Department of Revenue as a source of income on Statements of Financial Interests filed for the 1997 and 1998 calendar years in that she listed the Pennsylvania Department of Revenue as a place of employment. 3. Costenbader- Jacobson violated Section 4(a)/1104(a) of the Ethics Act when she failed to file a Statement of Financial Interests for calendar year 1999 by May 1 of 2000, the year after she left her Commonwealth position. 4. Per the Consent Agreement of the parties, Costenbader- Jacobson is directed to make payment in the amount of $500.00, payable to the Commonwealth of Pennsylvania through this Commission and to file a Statement of Financial Interests for calendar year 1999 within thirty (30) days of the date of the issuance (mailing) of the final adjudication in this matter. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, LOUIS W. FRYMAN, Chair