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HomeMy WebLinkAbout1276 JacksonIn Re: Herman Jackson 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 02- 042 -C2 Order No. 1276 4/4/03 4/18/03 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. The record is complete. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Stipulation of Findings is quoted as the Findings in this Order. 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Jackson, 02- 042 -C2 Page 2 I. ALLEGATION: That Herman Jackson, a (public official /public employee) in his capacity as Superintendent of the Bethlehem Center School District, Washington County, violated Section 3(a)/1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. § 1103(a) when he used the authority of his office for a private pecuniary gain when he retained possession of school district property received as a result of attending district approved training, namely a laptop computer, and subsequently sold that computer to a school district employee for $1,100.00. II. FINDINGS: 1. Herman Jackson has served as the Superintendent of the Bethlehem Center School District, Washington County, since March 1, 2001. a. Jackson previously served as Superintendent of the Jefferson - Morgan School District from November 17, 1998, through February 2001. 2. Jackson, as part of his official duties and responsibilities as superintendent, has attended training and conferences. a. This includes training and conferences sponsored by the Pennsylvania Department of Education (PDE). 3. Since 2000, the Pennsylvania Department of Education, Office of Educational Technology, has sponsored Superintendent Technology Leadership Academies. a. The Department of Education has contracted with the Montgomery County Intermediate Unit (MCIU) No. 23 to serve as the program administrator. 1. MCIU IMS Director Holly Jobe has served as academy project director. b. The first technology academy was scheduled for July 2000. c. Additional academies were scheduled in 2001 from July 18 -21, 2001, and July 23 -26, 2001. 4. The Academy was designed to provide an opportunity for superintendents to learn first hand about uses of technology in education and how to plan, implement, manage and lead it in their schools. 5. The Academy was funded by a Grant from the Bill and Melinda Gates Foundation along with matching funds from the PDE. 6. Funding from the Gates Foundation enabled the PDE to provide participants with laptop computers to facilitate instruction in various technological applications for school districts. a. Instruction provided included: Introduction to the laptop, how to use the Internet, Power Point templates, spreadsheets — basic Word and Excel, and how to use a Palm Pilot. 7. Participants were provided with the opportunity to choose whether they would prefer to work with a Dell or Apple laptop computer, when registering for the academy. 8. Superintendents throughout the state were sent invitation letters to attend the Pennsylvania Superintendent's Technology Leadership Academy (TLA) to be held Jackson, 02- 042 -C2 Page 3 July 23 -26, 2001, at the Hershey Convention Center. a. Registrants were required to attend the entire academy. 9. By way of letter dated April 20, 2001, Jackson and superintendents in school districts throughout Pennsylvania were invited to the Technology Leadership Academy in July 2001. a. The academy was open only to Superintendents, and only to those who had not attended the first Academy in 2000. 10. The April 20, 2001, invitation indicated that a fee of $290.00 charged for the four -day event would include all meals at the Hershey Convention Center, as well as a laptop of the attendee's choice. a. Participants were responsible for their lodging costs. 11. The April 20, 2001, invitation letter addressed the participant's receipt of laptop computers. a. Early registration was recommended to receive "the laptop and prepare for the sessions." b. Upon receipt of the computer participants would be able to access the wireless network for use during the academy. At their districts they will be able to use the built in modem, network card or wireless connection. c. Participants would need to provide their passwords in relation to the technical information that would be used to configure the laptop to receive participant's email. 12. Jackson received a facsimile on May 3, 2001, from Joanna Mangiapane, Director of Information Services for the Intermediate Unit 1, regarding the Technology Leadership Academy. a. The facsimile sent by Mangiapae [sic] was a notification sent out by Holly M. Jobe, Project Director of the Superintendent TLA, and IMS Director for the Montgomery County Intermediate Unit regarding the academy. 13. Jobe's notification which was faxed by Mangiapane to Jackson confirmed that the laptop computers provided at the academy would be available for use in the school districts. The notification included the following: "A nominal fee of $290.00 will be charged for the four -day event and will include all meals at the Hershey Convention Center as well as a laptop of your choice (Dell or Apple) which superintendents will be able to keep after the training for use in their districts." 14. The Bethlehem Center School District paid expenses for Jackson's attendance at the academy, including registration, room deposit and an advance of expenses. 15. On or about June 22, 2001, Jackson received a confirmation letter for his attendance of the conference which contained the following information. a. You will be expected to attend all of the academy sessions. You will be billed for services that you miss. Jackson, 02- 042 -C2 Page 4 b. Attendance will be taken so that Act 48 credits could be received. 16. The Academy was held at the Hershey Lodge & Convention Center, Hershey, PA, from July 23 to July 26, 2001. a. Attendance at the entire academy was mandatory to receive the laptop computers and the Act 48 credits. b. Sessions were scheduled during days and evenings. c. Participants were encouraged not to use the Academy as a family vacation. 17. The schedule for the first day of the academy session attended by Jackson, Monday, July 23, 2001, was as follows: 8:30 - 9:45 a.m. Registration and picture taking 10:00 - 11:45 a.m. Computer pickup and computer boot camp 12:00 - 1:45 p.m. Lunch and keynote speaker 2:00 - 2:30 p.m. Creating Information 1 2:45 - 3:45 p.m. Vision and Constructive Learning 3:45 - 4:15 p.m. Break 4:15 - 5:00 p.m. Creating Information 2 5:00 - 6:00 p.m. Personal Time 6:00 - 6:30 p.m. Reception 6:45 - 9:00 p.m. Dinner, welcome 9:00 p.m. Cyber Pub (optional) 18. On the first day of the Academy, an announcement was made advising the participants that the laptop computers were to remain the property of their respective districts should the superintendent leave or move to another district. a. The announcement was made by Julie Tritt Schell, Pennsylvania Department of Education, Director, Office of Educational Technology, shortly after 1:00 p.m. b. The announcement was made in conjunction with the guidelines for the conference, which included mandatory attendance at the sessions. c. Jackson was present when Schell's announcement was made. d. Jackson has asserted that he did not hear during the course of the four (4) day Academy any announcement regarding the ownership of the laptop computer. 19. During the conference, Jackson was provided with a black Dell 600 -C laptop computer with a wireless network access and DVD, serial number was [sic] Dell 1 KHMMO1. 20. Upon returning to the district following the academy, Jackson arranged for District Technology Technician Rich Thomas to interface the laptop with the Novell Network used by the District for Internet and Email access, because the district did not use wireless technology. a. Jackson informed Thomas that he had received the laptop at the Technology Leadership Academy. 21. Jackson did not use the laptop computer for school district related matters after he returned to the District. 22. On Monday, December 10, 2001, Jackson asked Technology Coordinator Joseph Jackson, 02- 042 -C2 Page 5 Matesich to look at his laptop computer because he could not gain access to it. a. Jackson could not access the laptop because he had forgotten his password. b. The battery was dead from lack of charge and the clear plastic shipping pads were still in place on the arm rests. c. Jackson wanted access to the computer because he was intending to sell it to a school district employee. 23. During the conversation with Matesich, Jackson asked his opinion as to the value of the laptop computer. a. Matesich gave his opinion that the computer was worth approximately $2,200 to $2,500 based on the options that the laptop was equipped with. b. The purpose of Jackson's question was he wanted to set a price for the sale of the computer. 24. Matesich spent approximately three (3) hours working on the laptop. a. Matesich earns $50.00 /hour. 25. On or about December 11, 2001, Jackson sold the laptop computer to Ronald Calhoun. a. Calhoun gave Jackson $1,100.00 at that time. 1. Jackson did not deposit the money in his personal checking account. b. Calhoun did not take possession of the computer at that time. 1. Matesich was servicing the computer at that time. 26. On December 12, 2001, Calhoun advised Matesich that he purchased the laptop from Jackson for 1,100.00. a. Calhoun requested that Matesich load any software on the laptop that he thought Calhoun could use. 27. While working on the laptop, Matesich became aware that the laptop Jackson was selling to Calhoun was the same laptop Jackson had received at the Technology Leadership Academy. 28. Matesich returned the laptop to Jackson's secretary on the morning of December 14, 2001. a. Matesich did not give the laptop to Calhoun because he believed that the laptop belonged to the district. b. The laptop was eventually given to Calhoun by district business manager Jody Nepa. 29. As a result of his questions regarding the ownership of the computer, Matesich contacted Holly Jobe, Information Management Systems Director of the MCIU, and Julie Tritt Schell, Director of the PDE Office of Educational Technology. Jackson, 02- 042 -C2 Page 6 a. Matesich was attempting to determine whether computers were the property of the school district or became the property of the superintendent following completion of the academy. 30. In January 2002 Jobe forwarded an e-mail to Matesich stating the laptops were given to the superintendents for their use, but were the property of the district. 31. On January 3, 2002, Julie Tritt Schell provided an e-mail to Matesich stating the following in regard to the ownership of the laptop computers provided to the participants of the Technology Leadership Academy's [sic] for Superintendents. "I'm writing to let you know that it's our policy that the laptops that are provided to superintendents during training at the technology leadership academies are the property of their school district and if they leave the district, the laptop must remain. This policy is stated very clearly at the beginning of each TLA. If you need additional information, please let me know!" 32. On or about January 2, 2002, Jackson requested information from Julie Tritt - Schell regarding the ownership of the laptop computer. 33. By way of letter dated January 2, 2002, Julie Tritt Schell responded to Jackson's request for information regarding the laptop computers provided to the superintendents at the 2001 Academy. Schell provided the following: a. The Superintendents were provided with a Dell or Apple laptop computer to be used both during and after the conference. b. The intent was to provide the superintendents with equipment to use as an aid during the conference and to promote continued learning about the benefits of this technology after the conference adjourned. c. The laptops were purchased with state funds, therefore, during the opening session an announcement was made that the laptops could be used for whatever purpose the attendees desired after the conference, but that the laptop would become district property if the superintendent left the district. No written literature stated his [sic] fact. d. The superintendents were not required to sign a statement explicitly acknowledging that the laptops were to become district property at the end of the superintendent's tenure. 34. On or about January 15, 2002, Jackson returned the $1,100.00 to Calhoun. a. Jackson advised Calhoun to retain the use of the laptop for his position with the district. 35. The Bethlehem Center School Board authorized Solicitor Dennis Makel to conduct an investigation into the sale of the laptop computer by Jackson to Ronald Calhoun. 36. Solicitor Dennis Makel issued a findings report to the board which confirmed Jackson received the laptop through is [sic] public position and that he subsequently sold the laptop to Calhoun. 37. On or about July 15, 2002, the board authorized a Letter of Reprimand be issued to Jackson and put in his personnel file. Jackson, 02- 042 -C2 Page 7 a. The board concluded Jackson obtained a laptop computer obtained through his attendance at a seminar for school district superintendents and then sold the laptop to a school district employee for $1,100.00. III. DISCUSSION: At all times relevant to this matter, the Respondent, Herman Jackson (also referred to herein as "Respondent" or "Jackson") has been a public official /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 seq., § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegation is that Jackson, a public official /public employee in his capacity as Superintendent of the Bethlehem Center School District, Washington County, violated Section 3(a)/1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he used the authority of his office for a private pecuniary gain when he retained possession of school district property received as a result of attending district approved training, namely a laptop computer, and subsequently sold that computer to a school district employee for $1,100.00. 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: 65 Pa.C.S. § 1102. Section 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms pertaining to conflicts of interest are defined under the Ethics Act as follows: Section 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. The term 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. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. Jackson, 02- 042 -C2 Page 8 Section 3(a)/1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are reproduced above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Jackson has served as the Superintendent of the Bethlehem Center School District since March 1, 2001. As part of his official duties and responsibilities as Superintendent, Jackson attended the Pennsylvania Superintendent's Technology Leadership Academy (TLA) held July 23 -26, 2001, at the Hershey Convention Center. The TLA was open only to superintendents. It was sponsored by the Pennsylvania Department of Education (PDE) and was funded by a grant from the Bill and Melinda Gates Foundation and matching funds from the PDE. Funding from the Gates Foundation enabled the PDE to provide TLA participants with laptop computers to facilitate instruction in applications for school districts. The April 20, 2001, invitation letter for the TLA mentioned that participants would receive laptop computers. Additionally, on May 3, 2001, Jackson received a facsimile from Holly M. Jobe ( "Jobe "), Project Director of the Superintendent TLA and IMS Director for the Montgomery County Intermediate Unit, confirming that the laptop computers rovided at the TLA would be available for use in the school districts. The notification specifically stated: "A nominal fee of $290.00 will be charged for the four -day event and will include all meals at the Hershey Convention Center as well as a laptop of your choice (Dell or Apple) which superintendents will be able to keep after the training for use in their districts." The Bethlehem Center School District paid expenses for Jackson's attendance at the TLA, including his registration and room deposit and an advance of expenses. At the conference, Jackson was provided with a black Dell 600 -C laptop computer with a wireless network access and DVD, serial number Dell 1 KHMMO1. On the first day of the TLA, an announcement was made advising the participants that the laptop computers were to remain the property of their respective school districts should the superintendent leave or move to another district. Jackson was present when this announcement was made. However, Jackson has asserted that he did not hear any announcement during the course of the TLA regarding ownership of the laptop computer. Following the TLA, Jackson arranged for District Technology Technician Rich Thomas ( "Thomas' ) to interface the laptop with the network used by the school district. Jackson informed Thomas that he had received the laptop at the TLA. On December 10, 2001, Jackson asked Technology Coordinator Joseph Matesich ( "Matesich ") to look at his laptop computer because he could not gain access to it. Per the stipulated Findings, Jackson wanted access to the computer because he was intending to sell it to a school district employee. Jackson asked Matesich his opinion as to the value of the laptop computer. Jackson asked the question for the purpose of setting a price for the sale of the computer. Matesich gave his opinion that the computer was worth approximately $2,200 to $2,500. Matesich spent approximately three (3) hours working on the laptop. Matesich earns $50.00 /hour. On or about December 11, 2001, Jackson sold the laptop computer to school district employee Ronald Calhoun ( "Calhoun ") for $1,100.00. Calhoun gave Jackson the $1,100.00 Jackson, 02- 042 -C2 Page 9 for the computer but did not take possession of the laptop at that time because Matesich was servicing it. On December 12, 2001, Calhoun advised Matesich that he purchased the laptop from Jackson for $1,100.00. Calhoun asked Matesich to load any software on the laptop that he thought Calhoun could use. While working on the laptop, Matesich became aware that the laptop Jackson was selling to Calhoun was the same laptop Jackson had received at the TLA. On December 14, 2001, Matesich returned the laptop to Jackson's secretary. He did not give the laptop to Calhoun because he believed that the laptop belonged to the school district. The school district business manager eventually gave the laptop to Calhoun. Matesich contacted Jobe and Julie Tritt Schell ( "Schell "), Director of the PDE Office of Educational Technology, regarding ownership of the computers received by superintendents at the TLA. Jobe replied that the laptops were given to the superintendents for their use, but were the property of the district. (Finding 30). Schell's reply to Matesich stated, inter alia, the following: "I'm writing to let you know that it's our policy that the laptops that are provided to superintendents during training at the technology leadership academies are the property of their school district and if they leave the district, the laptop must remain. This policy is stated very clearly at the beginning of each TLA. (Finding 31). At or about the same time, Jackson also requested information from Schell regarding ownership of the laptop computer. By letter dated January 2, 2002, Schell replied indicating, inter alia: the laptops were purchased with state funds; during the opening session an announcement was made that the laptops could be used for whatever purpose the attendees desired after the conference, but that the laptop would become district property if the superintendent left the district; no written literature stated this fact; and the superintendents were not required to sign a statement explicitly acknowledging that the laptops were to become district property at the end of the superintendent's tenure. (Findings 33 c -d). On or about January 15, 2002, Jackson returned to Calhoun the $1,100.00 Calhoun had paid for the laptop. Jackson advised Calhoun to retain the use of the laptop for his position with the school district. 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 Jackson committed an unintentional violation of Section 1103(a) of the Ethics Act when he retained possession of school district property, a laptop computer, which was received as a result of Jackson attending district approved training, and subsequently sold said computer to a school district employee, all funds received from said sale having been previously returned to the purchaser and the computer placed in the possession of the school district. Jackson agrees to make payment in the amount of $500.00 in settlement of this matter, payable to the Commonwealth of Pennsylvania and forwarded to this Commission within 30 days of the issuance of the final adjudication in this matter. In considering the Consent Agreement, it is clear that Jackson violated Section 1103(a) of the Ethics Act when he sold the laptop computer to Calhoun. Items received by a public official /public employee incident to the performance of his public duties are the property of the Jackson, 02- 042 -C2 Page 10 governmental body. See, e.q., Stefanko, Opinion 90 -015 (frequent flyer credits received in connection with official travel). Jackson received the laptop through the use of the authority of his public position. But for being a school district superintendent; Jackson could not have attended the TLA, at school district expense, to receive the laptop. The laptop was school district property. Jackson's sale of the school district's laptop to Calhoun resulted in a private pecuniary benefit to Jackson in the amount of $1,100.00. Intent is not a requisite element for a violation of the Ethics Act. See, e.q., Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Cmwlth. 1987) (holding that the township supervisor in that case violated Section 3(a) of the Ethics Act even if he did not intend to do so). Nevertheless, it would seem that the aforesaid violation was unintentional. First, Jackson has asserted that he did not hear any announcement during the course of the TLA regarding the ownership of the laptop computer. (Finding 18 d). Second, Schell, Director of the PDE Office of Educational Technology, confirmed that there was no written literature stating the content of the announcement, and the superintendents were not required to sign a statement explicitly acknowledging that the laptops were to become district property at the end of their tenure. (Findings 33 c -d). Third, it is possible that the May 3, 2001, facsimile referenced in Finding 13 could generate confusion as to the ownership of the laptops provided at the TLA: "A nominal fee of $290.00 will be charged for the four -day event and will include all meals at the Hershey Convention Center as well as a laptop of your choice (Dell or Apple) which superintendents will be able to keep after the training for use in their districts." (Finding 13) (Emphasis added). Finally, although Jackson has asserted that he did not hear the announcement at the opening session of the TLA regarding ownership of the laptops, we would parenthetically note that the announcement as set forth in Finding 33 c (that the laptops could be used for whatever purpose the attendees desired after the conference, but that the laptop would become district property if the superintendent left the district) would be inaccurate. The laptop was the school district's property from the moment Jackson received it, and as such, it could only be used for school district purposes (see, e.q., Caqno, Order 1204; Sullivan, Order 1245, and cases cited therein). Based upon the above analysis, we agree with the parties that Jackson committed an unintentional violation of Section 1103(a) of the Ethics Act when he retained possession of school district property, a laptop computer, which was received as a result of Jackson attending district approved training, and subsequently sold said computer to a school district employee, all funds received from said sale having been previously returned to the purchaser and the computer placed in the possession of the school district. We determine that the Consent Agreement submitted by the parties sets forth the proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, Jackson is directed to make payment in the amount of $500.00 to the Commonwealth of Pennsylvania through this Commission within 30 days of the mailing date of this Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: Jackson, 02-042-C2 Page 11 1. Herman Jackson ( "Jackson "), as Superintendent of the Bethlehem Center School District, is a public official /public employee subject to the provisions of the Ethics Act. 2. Jackson committed an unintentional violation of Section 1103(a) of the Ethics Act when he retained possession of school district property, a laptop computer, which was received as a result of Jackson attending district approved training, and subsequently sold said computer to a school district employee, all funds received from said sale having been previously returned to the purchaser and the computer placed in the possession of the school district. In Re: Herman Jackson ORDER NO. 1276 File Docket: 02- 042 -C2 Date Decided: 4/4/03 Date Mailed: 4/18/03 1. Herman Jackson ( "Jackson "), as Superintendent of the Bethlehem Center School District, committed an unintentional violation of Section 1103(a) of the Ethics Act when he retained possession of school district property, a laptop computer, which was received as a result of Jackson attending district approved training, and subsequently sold said computer to a school district employee, all funds received from said sale having been previously returned to the purchaser and the computer placed in the possession of the school district. 2. Per the Consent Agreement of the parties, Jackson is directed to make payment in the amount of $500.00 to the Commonwealth of Pennsylvania through this Commission within 30 days of the mailing date of this Order a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair