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HomeMy WebLinkAbout1163 ShanerIn Re: Janet Shaner File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Vice Chair Julius Uehlein John J. Bolger Frank M. Brown Susan Mosites Bicket 99- 015 -C2 Order No. 1163 9/20/00 10/5/00 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation as to the above -named Respondent 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., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., which inter alia provides for the completion of pending matters under that Act. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was waived. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Consent Agreement was subsequently approved and the Stipulation of Findings appears as the Findings in this adjudication. 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 the Ethics Act. 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. Shaner, 99- 015 -C2 Page 2 I. ALLEGATION: That Janet Shaner, a public official /public employee in her capacity as an assistant to the superintendent of the West Chester School District Superintendent, violated provisions of the State Ethics Act (Act 93 of 1998) Sections 3(a) and 3(c) when she used the authority of her office for a private pecuniary benefit when she solicited and accepted anything of monetary value including gifts, based on the understanding that her vote, official action or judgment would be influenced thereby soliciting and accepting gifts in her official capacity from a construction manager overseeing district construction projects that Shaner was supervising; when she failed to disclose on Statements of Financial Interests for the 1996 and 1997 calendar years all forms of income received in excess of $1,300; and when she failed to disclose the source of all gifts received in excess of $250 on Statements of Financial Interests for the 1994, 1995, 1996, 1997 and 1998, calendar years. II. FINDINGS: 1. Janet P. Shaner was employed by the West Chester Area School District from September 1, 1975, to July 23, 1999. 2. Shaner held the following positions while employed by the school district. Time Period 09/01/75 to 07/01/86 07/01/86 to 07/01/88 07/01/88 to 07/01/97 07/01/97 to 07/23/99 Position Physical Education Teacher Assistant Principal Assistant to the Superintendent for Elementary School Education Superintendent 3. On November 28, 1988, Thomas Kent, then Superintendent of the West Chester Area School District (WCASD) appointed two assistants to the superintendent. a. Kent appointed assistant superintendents for both elementary and secondary WCASD education. 4. Shaner was appointed Acting Administrative Assistant from July 1, 1988 until November 28, 1988. On November 28, 1988, the position title was changed to Assistant to the Superintendent for Elementary Education. 5. Robert Fithian was appointed to the position of Assistant to the Superintendent for Secondary School Education at the same time Shaner was appointed to her position. 6. Shaner's duties as Assistant to the Superintendent for Elementary School Education included responsibility for all asppgcts of the education process for grades kindergarten through 5', curriculum, handling staffing and overseeing the disciplinary process. a. In July 1988, Shaner was appointed project director by Acting School Superintendent Thomas Kent to oversee the new elementary school being built. Shaner, 99- 015 -C2 Page 3 7. Prior to March 1989, the WCASD was considering renovating school buildings as part of a major capital building project. a. On March 27, 1989, the WCASD board of directors approved a resolution authorizing long term financing for capital building projects in the amount of $20,680,000. 8. On or about March 27, 1989, the WCASD board of directors made a decision to hire a Clerk of the Works to oversee construction and renovation of school district buildings. 9. During the March 27, 1989, WCASD board meeting, Daniel Passarelli was appointed to the position of Clerk of the Works for the WCASD, by the West Chester Area School Board. a. Prior to the board actions, Passarelli was interviewed by Business Manager Donald Howland and approved by Superintendent Thomas Kent. b. At the time of his selection, Passarelli was working as a consultant for a school district contractor who was constructing temporary classrooms. c. Passarelli's duties as Clerk of the Works were to oversee renovations and construction at four WCASD buildings. 10. Passarelli's compensation as Clerk of the Works was set at an hourly rate of $27.50, up to a total of $30,000. a. The salary was established by Superintendent, Thomas Kent, and Business Manager, Donald Howland, and approved by the Board of Directors. 11. The WCASD Board of Directors approved bids for renovations for Fern Hill Elementary School and p Westtown - Thornbury School during meetings held on March 29, 1989, and April 20, 1989. a. Oversight of construction at both schools was part of Passarelli's duties as Clerk of the Works. 12. Other schools for which Passarelli had oversight duties as Clerk of the Works were East Bradford and Pennwood Elementary. 13. On or about October 23, 1989, the WCASD Board of Directors approved construction of a new elementary school on 37.9 acres north of Stetson Middle School. a. The school was later named the Sarah Starkweather Elementary School. 14. The Property and Finance Committee of the school board reviewed options to monitor and manage the construction of the new elementary school and determined that a construction manager be hired to oversee the construction. 15. On November 27, 1989, Passarelli was appointed, as an independent contractor, by the West Chester Area School Board to Shaner, 99- 015 -C2 Page 4 the position of Construction Manager for construction of a new elementary school building. a. Passarelli's duties as Construction Manager included reviewing construction documents, both architectural and mechanical; assisting in bid preparation and bid analysis; and overseeing, coordination and evaluating the work performed at the job site in accordance with the bid specifications and change orders approved by the Board of School Directors. b. The board approved Passarelli's compensation as Construction Manager at $1,100 per week. This translated into the same hourly rate which was paid to Passarelli on the earlier projects that year. 1. The $1,100 per week computed to a 40 -hour work week at $27.50 per hour. 16. At the time of his selection as Construction Manager, Passarelli's duties as Clerk of the Works were concluding. 17. As project manager, Shaner was responsible for overall supervision of the construction projects including assessing the school district's needs; meeting with the architect to discuss the project; participating in the bid review process; deciding the colors of carpet, tiles and other materials for use in the school building; holding regular meetings with the contractors, the construction manager, and interested school district employees to discuss the building project; reviewing and approving payment of contractors' invoices, reporting to the Superintendent at weekly staff meetings on the events and conditions at the construction sites and the performance of the contractors. a. These responsibilities were never delineated in a written job description. b. Passarelli, in his position as Construction Manager directly reported to the Project Managers. 1. All contractors on the construction projects reported to the Construction Manager. 18. In Shaner's role as Project Manacer oversight responsibility of Passarelli, serving as Construction IVanager, included but were not limited to the following: a. Meeting with Passarelli on a daily basis to review status of projects, scheduled work and costs. b. Reviewing invoices submitted by Passarelli to insure [sic] hours worked were accurate. 19. The WCASD initiated various construction projects relating to the district's buildings from 1989 to 2000. 20. Passarelli performed the duties of Construction Manager, during the years 1989 to 1998. Shaner, 99- 015 -C2 Page 5 21. The Sarah Starkweather Elementary School Building project started in November of 1989 with actual construction beginning in 1990. 22. From December 1989 until August 30, 1995, Passarelli was compensated as Construction Manager for all the district construction projects at the $27.50/ hour rate approved by the WCASD Board on November 27, 1989. a. This included the Starkweather Elementary School. b. The school board approved additional construction/ renovation projects for which Passarelli acted as construction manager. 23. No specific action was taken by the board approving Passarelli as construction manager for the additional capital projects. 24. During the Property and Finance Committee meeting of April 8, 1991, Superintendent Thomas Kent presented the revised Five (5) Year Capital Plan. a. The committee committed to spend $2.5 million in year one and retain Dan Passarelli to administrate future building projects. b. Janet Shaner and other central office staff were present during this meeting. 25. On April 23, 1991, the Property and Finance Committee's report to retain Passarelli for future building projects was discussed at the full board meeting. a. No vote of the board was taken to approve the committee recommendation. 26. Passarelli would submit bi- weekly invoices to the WCASD documenting hours worked, projects worked and total amount due. a. From 1989 to 1993, the invoices were submitted to Don Howland, business manager for the WCASD. 1. From 1993 to 1998 invoices were sent to Suzanne Moore, who replaced Howland as business manager. b. The invoices included hours worked as Construction Manager for the Starkweather Elementary School and other school projects. 27. From December 1989 until April 1992 Howland would forward Passarelli's invoices to Shaner and Fithian for review in their capacities as Project Managers, prior to authorizing payment. a. The majority of the construction projects were related to elementary schools and were the responsibility of Shaner to review. Shaner, 99- 015 -C2 Page 6 28. In April of 1992, Howland started the practice of submitting Passarelli's original invoices to Shaner and Fithian for their review and signature prior to paying the bills. a. Elementary school invoices were referred to Shaner, secondary school invoices went to Fithian. 29. Shaner and Fithian had responsibility for reviewing bills submitted by contractors involved in the various construction projects and approving payment of the invoices. a. Shaner was to review all elementary school invoices while Fithian would review invoices for secondary school project invoices. b. There would be instances when Shaner and Fithian would review invoices for each other. 1. This would occur when either was unavailable to review invoices. 30. From 1989 to 1998, payments were issued to Passarelli by the WCASD based on the approvals by Howland, Moore, Shaner and Fithian and the subsequent vote of the school board. a. Howland and Moore would not initial Passarelli invoices for elementary projects until they were reviewed by Shaner. 31. Passarelli began invoicing the WCASD for hours worked as Construction Manager for the Starkweather School on December 18, 1989. a. The invoices covered the time period from December 4, 1989, through December 17, 1989. b. The invoice totaled $2,200.00 for eighty hours work at $27.50 per hour. 1. These were the terms of the November 27, 1989, agreement. 32. Passarelli invoiced the WCASD for eighty (80) hours work on a bi- weekly basis until March 11, 1990, when his invoice increased to eighty -three (83) hours. a. Eighty (80) of the 83 hours were approved for payment by the WCASD. b. Three (3) hours were disapproved based upon Shaner's direct knowledge of actual hours worked and the directive of Dr. Kent requiring extra hours to be documented. 33. Passarelli submitted an invoice dated April 23, 1990, for the time period April 9, 1990, through April 23, 1990, for 109 hours at $27.50 /hour totaling $2,997.50. a. The amount was initialed for payment by Business Manager Don Howland, following Shaner's review. Shaner, 99- 015 -C2 Page 7 b. The payment was subsequently approved by the school board. 34. The invoices submitted by Passarelli after April 23, 1990, increased from 80 hours per invoice to hours in excess of 130 per invoice. a. There were no specific school board approvals granting compensation for the increased hours. b. Shaner and /or Fithian approved the increased billings. 35. Between December 1989 and 1996 Shaner routinely reviewed invoices submitted for payment by Passarelli. a. Shaner approved these ayments in her capacity as Assistant to the Superintendent and project manager. b. Shaner stated that she based her approval of Passarelli's invoices on her personal observation of Passarelli's work and information obtained from other school district employees concerning the hours Passarelli worked. c. Beginning in 1991, Shaner would initial invoices indicating her approval. 1. From 1989 to 1991, prior to payment, Shaner would review Passarelli invoices but not affix her signature thereon. d. The invoices would then be sent to the business office for further processing. e. Payments would be submitted to the board for final approval. 36. Beginning with the invoice dated April 24, 1991, Shaner initialed Passarelli invoices for payment which included the increased hours. a. Shaner's initials "JPS" or "Ok to pay JPS" along with the date would appear on the invoices, indicating her approval. b. Shaner initialed an invoice dated April 24, 1991, in an amount of $1,481.16 submitted by Passarelli. c. One other invoice was initialed by Shaner in September 1991. 37. Beginning in April 1992 and continuing through March 1, 1994, Shaner initialed 156 of Passarelli invoices for payments totaling $181,947.87. a. During this 99 week period, the average payment to Passarelli was $1,838 per week. 38. From April 1994 through May 1995, Janet Shaner 63 initialed invoices submitted by Dan Passarelli to be approved for payment by the WCASD totaling $86,811.81. Shaner, 99- 015 -C2 Page 8 a. During this 56 week period, the average payment to Passarelli was $1,550 per week. 39. Shaner reviewed or initialed Passarelli's invoices from April 25, 1990, through September 1995 which exceeded the amounts approved by the school board and which totaled $574,251.25. 40. From April 1990 to September 1995 the time period that she had responsibility for reviewing and approving Passarelli invoices, Janet Shaner initialed and approved invoices to Passarelli in excess of the amounts approved by the school board on November 27, 1989. a. The board action of November 27, 1989, authorized payments of $1,100.00 per week. 1. This amount equaled forty (40) hours per week at the rate of $27.50 /hour. 41. No formal school board action was taken increasing Passarelli's compensation beyond the $1,100 per week. 42. Janet Shaner only disapproved one invoice submitted by Passarelli from 1989 to 1995. a. The one invoice was disapproved due to the fact that said invoice did not match the hours reflected in the daily log record. b. This was prior to the time that Shaner was offered and accepted gifts from Passarelli. c. Shaner never disapproved an invoice from Passarelli for excess hours after he provided gifts to her, even though he invoiced for excess hours totaling $574,251.25. 43. In June 1993 Suzanne Moore replaced Donald Howland (retired) and assumed the duties of Business Manager and continued the policy of having Shaner and Fithian review and initial the construction manager's invoices. 44. In 1994 Suzanne Moore investigated and raised the issue of excess payments to Passarelli under the school district contract. 45. Moore prepared and forwarded a memorandum to Janet Shaner and Robert Fithian dated December 2, 1994, which noted that the Construction Manager's responsibilities have increased resulting in compensation being paid beyond what the board approved on November 27, 1989. a. Moore advised that the administration must establish updated responsibilities and compensation for the level of services received. b. Moore stated the most important issue was whether to change the position to employee rather than independent contractor. Shaner, 99-015-C2 Page 9 c. Moore provided an American Institute of Architects (AIA) document for Construction Management Services to use as a guideline when revising duties and compensation of the Construction Manager. 46. Between January 1995 and August 1995 Moore, Shaner, Fithian and School District Solicitor Ross Unruh met to discuss and prepare a contract for Dan Passarelli, in his capacity as Construction Manager. 47. Janet Shaner participated in the discussions, meetings and decisions, with the above identified individuals, regarding a new contract for Passarelli serving as Construction Manager. 48. On August 28, 1995, the WCASD and Passarelli signed the agreement regarding his continued services and compensation as construction manager. 49. The WCASD board of directors approved the new contract for Passarelli as Construction Manager, on August 28, 1995. 50. As a result of the new contract negotiated by the WCASD administrators, including Shaner, Passarelli's compensation as Construction Manager increased from the $2,200 bi- weekly previously approved by the board to a percentage of the contracts. 51. Passarelli was issued IRS form 1099 - Miscellaneous Income by WCASD for compensation paid during the years 1989 to 1999 as follows: a. 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 Total $ 48,290.50 $ 92,070.38 $ 152,441.64 $ 91,715.94 $ 107,984.09 $ 100,358.00 $ 159,325.15 $ 386,405.60 $ 398,543.60 $ 271,735.03 $ 16,402.00 $1,825,271.90 52. Suzanne Moore began reviewing and approved Passarelli's invoices after the new contract was approved. a. Moore would review the invoices and approve payments based on the provisions of the contract. b. Moore prepared timetables for distribution of payments to Passarelli. 53. Janet Shaner continued to have direct oversight responsibility for Passarelli until May 1997. a. Upon becoming superintendent, Respondent appointed Robert Perzel, maintenance director, as the individual with responsibility for the oversight of Passarelli. Shaner, 99- 015 -C2 Page 10 b. Robert Perzel, WCASD maintenance director, and Suzanne Moore assumed direct oversight of the construction manager. c. Perzel and Moore would then report to Shaner regarding Passarelli's performance as construction manager. 54. Effective July 1, 1997, Shaner was appointed Superintendent of the WCASD by the board. a. In this position, Shaner had overall responsibility for all building projects in the district. 55. During the period from 1989 through 1998 while serving as Clerk of the Works and Construction Manager for the WCASD, Dan Passarelli provided gifts to administrators and employees of the school district. a. Administrators receiving gifts included Superintendent Thomas Kent and Assistants to the Superintendent Robert Fithian and Janet Shaner. b. Passarelli also provided gifts to Shaner after she was appointed. 56. Gifts provided to Kent, Fithian and other administration employees included boxes of chocolates, cologne, bottles of wine and hard liquor. 57. Gifts provided by Passarelli to Janet Shaner included meals, tickets to sporting events and other events, jewelry, flowers, books and gift certificates to Doneckers, an upscale department store located in Ephrata, Pennsylvania. 58. The Doneckers' gift certificates were in the denominations of $300 or greater and in the aggregate totaled over $15,000 from 1989 to 1998. 59. Passarelli first purchased a gift certificate for Shaner in December 1989 in an amount of $300.00. a The gift certificate was purchased less than one Shaner was appointed Passarelli's immediate su 60. Shaner accepted the gifts from Passarelli during the that she served as Assistant to the Superintendent manager supervising Passarelli's work and approving the various construction projects for the WCASD. 61. Janet Shaner received Doneckers gift certificates Passarelli from 1989 to 1998 as follows: December 1989: December 1990: January 1991: December 1991: December 1992: January 1993: $300.00 $400.00 $500.00 $500.00 $500.00 $500.00 month after pervisor. time period and project invoices on from Dan Shaner, 99-015-C2 Page 11 December 1993: January 1994: December 1994: January 1995: December 1995: January 1996: December 1996: January 1997: December 1997: January 1998: December 1998: TOTAL $500.00 $400.00 $500.00 $500.00 $600.00 $500.00 $600.00 $500.00 $400.00 $500.00 $500.00 $500.00 $500.00 $500.00 $400.00 $500.00 $500.00 $500.00 $500.00 $500.00 $600.00 $600.00 $500.00 $500.00 $300.00 $15,100.00 62. Passarelli purchased accessories from Doneckers for Shaner in 1995, 1997 and 1998, as follows: 12/18/95 $127.20 01/23/97 $189.00 01/22/98 $136.74 02/03/98 $ 96.67 63. The gifts received by Shaner from Passarelli in the aggregate exceeded $250.00 for each calendar year from 1989 to 1999. 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 $ 300.00 $ 400.00 $1,300.00 $ 500.00 $1,400.00 $1,600.00 $2,000.00 $2,900.00 $1,600.00 $1,600.00 $ 300.00 64. Shaner filed Statements of Financial Interests with the WCASD in her capacity as Assistant to the Superintendent and as Superintendent of the WCASD. Calendar Year Date Filed 1991 04/08/92 1992 Not Filed Shaner, 99- 015 -C2 Page 12 1993 04/28/94 1994 04/12/95 1995 04/01/96 1996 04/04/97 1997 04/09/98 1998 04/29/99 1999 04/13/00 65. On Statements of Financial Interests filed for the 1992, 1993, and 1996 calendar years, Shaner did not disclose any direct or indirect income on Item No. 11. a. On forms filed for calendar years 1994 and 1995, Shaner disclosed the WCASD as a source of income. b. Shaner disclosed Immaculata College as a source of income for the 1997 and 1999 calendar years. 1. Shaner did not disclose the WCASD as a source of income on that form. 66. Between 1991 and 1999, Shaner failed to disclose the receipt of gifts from Dan Passarelli on all Statements of Financial Interests. 67. In May 1997 questions regarding Passarelli's performance as Construction Manager increased. 68. Additional questions regarding Passarelli's performance resulted in the school board seeking Requests for Proposals for Construction Manager Services in March 1998. 69. On May 26, 1998, the school board approved hiring O'Brien - Kreitzburg Inc. for Construction Management Services. 70. Since May 1998, Passarelli's sole role is to complete projects which were the part of prior contracts. a. Passarelli no longer serves as Construction Manager for the school district. 71. After his termination as Construction Manager, Passarelli reduced the value of his gifts given to Janet Shaner. III. DISCUSSION: At all times relevant to this matter, the Respondent, Janet Shaner, hereinafter Shaner, 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 issue is whether Shaner violated Sections 1103(a) and 1103(c) of the Ethics Act as to the allegations that she, as an assistant superintendent, used the authority of her office for a private pecuniary benefit when she solicited and accepted anything of monetary value based on the understanding that her vote, official action or judgment would be influenced thereby, by soliciting and accepting gifts in her official capacity from a construction manager overseeing Shaner, 99- 015 -C2 Page 13 district construction projects that Shaner was supervising; and violated Sections 1105(b)(5) and (6) when she failed to disclose on Statements of Financial Interests for the 1996 and 1997 calendar years all income received in excess of $1,300 and failed to disclose the source of all gifts received in excess of $250 on Statements of Financial Interests for the 1994, 1995, 1996, 1997, and 1998 calendar years. 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 term "conflict of interest" is 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. 65 Pa.C.S. §1102. Section 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. Section 1103. Restricted activities. (c) Accepting improper influence. - -No public official, public employee or nominee or candidate for public office shall solicit or accept, anything of monetary value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding of that public official, public employee or nominee that the vote, official action, or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 Pa.C.S. §1103(c). Shaner, 99-015-C2 Page 14 Section 1103(c) of the Ethics Act provides in part that a public official /public employee shall not solicit or accept anything of monetary value based upon any understanding that his vote, official action or judgement would be influenced thereby. Section 1105 Statement of financial interests (b) 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. (6) The name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more and the circumstances of each gift. This paragraph shall not apply to a gift or gifts received from a spouse, parent, parent by marriage, sibling, child, grandchild, other family member or friend when the circumstances make it clear that the motivation for the action was a personal or family relationship. However, for the purposes of this subsection the term "friend" shall not include a registered lobbyist or an employee of a registered lobbyist. this paragraph shall not be applied retroactively. Section 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. Section 1105(b)(6) of the Ethics Act requires that every public official/ public employee and candidate list the name and address of the source and amount of any gift valued in the aggregate of $250 or more and the circumstances of each gift. Having noted the issues and applicable law, we shall now summarize the relevant facts. Shaner was employed by the West Chester Area School District (District) from September 1975 to July 1999. Shaner was appointed as the acting Administrative Assistant for the District until November 1988 when her position title was changed to Assistant to the Superintendent for Elementary Education. Robert Fithian held the comparable position for Secondary Education. As part of a major capital building project, the West Chester Area School Board (School Board) at a March 1989 meeting decided to hire a Clerk of the Works to oversee construction and renovation of school district buildings. The School Board then appointed Daniel Passarelli for that position. During the March and April 1989 meetings, the School Board approved bids for renovations at two schools. Passarelli's duties as Clerk of Works were Shaner, 99- 015 -C2 Page 15 the oversight of the construction at both of those schools. Passarelli also had oversight duties at two other schools. At an October 1989 School Board meeting, construction was approved for a new elementary school. Shaner was appointed Project Director to oversee the building of the new elementary school. The School Board appointed Passarelli as Construction Manager for the construction of a new school in November 1989. Passarelli's duties included reviewing construction documents, assisting in bid preparation and analysis, and overseeing /coordinating /evaluating the work performed at the job site. As Project Manager, Shaner was responsible for the overall supervision of the construction projects for the District. Passarelli, in his position as Construction Manager, reported directly to the Project Managers. Shaner as Project Manager had oversight responsibility of Passarelli which entailed meeting with him on a daily basis and reviewing invoices submitted by Passarelli to ensure the accuracy of the hours worked. Passarelli submitted biweekly invoices to the District to document the hours he worked, the project worked and the total amount due. From 1989 to 1993, Passarelli's invoices were submitted to the District Business Manager. Beginning in April 1992, the Business Manager started the practice of submitting Passarelli's invoices for elementary schools to Shaner prior to paying the bills. The Business Manager forwarded Passarelli's invoices to Shaner or Fithian for review in their capacities as Project Managers. Shaner and Fithian had the responsibility for reviewing the bills submitted by the contractors and approving the payment of the invoices. The majority of the construction projects involved the elementary schools which were within the responsibility of Shaner for review. From 1989 to 1998, payments issued to Passarelli by the District were based upon approvals by the Business Manager, Shaner or Fithian followed by a vote of the School Board. Passarelli invoiced the District for the hours he worked as Construction Manager beginning in December 1989. Initially, Passarelli submitted an invoice for $2,200 for 80 hours of work at $27.50 per hour as per the terms of his agreement with the District. Thereafter, Passarelli submitted an invoice based upon 83 hours of work which invoice was disapproved based upon Shaner's knowledge of the actual hours worked and the lack of documentation. Passarelli then submitted an invoice for the period of April 9 -23, 1990, for 109 hours totaling $2,997.50. That amount was initialed for payment by the Business Manager following Shaner's review. The invoices submitted by Passarelli after April 1990 increased to hours in excess of 130 per bi- weekly invoice. Although there was no School Board action to approve the compensation for increased hours, Shaner or Fithian approved the increased billings. Between December 1989 and 1996 Shaner routinely reviewed invoices submitted for payment by Passarelli. The invoices would then be sent to the business office for processing followed by the submission to the School Board for final approval. Beginning with an invoice dated April 24, 1991, Shaner initialed Passarelli's invoices for payment which included increased hours. Shaner reviewed or initialed Passarelli's invoices between April 1990 through September 1995 which exceeded the amounts approved by the School Board. The sum of such invoices totaled $574,251.25. In June 1993 after the Business Manager retired, the replacement, Susanne Moore, investigated and raised the issue of excess payments to Passarelli. Between January and August 1995, Moore met with Shaner, Fithian and the School District Solicitor to prepare a contract for Passarelli in his capacity as Construction Manager. In August 1995 the School Board and Passarelli signed an agreement regarding his continued services and compensation as Shaner, 99- 015 -C2 Page 16 Construction Manager. Under the new contract, Passarelli's compensation increased from $2,200 bi- weekly to a percentage of the construction contracts. The total compensation paid by the District to Passarelli from 1989 through 1999 totaled $1,825,271.90. Moore reviewed and approved Passarelli's invoices after the new contract was approved. Shaner, however, continued to have direct oversight responsibility for Passarelli until May 1997 when Shaner became Superintendent and appointed the Maintenance Director to oversee Passarelli. With Shaner's appointment as Superintendent, which was effective July 1997, she had overall responsibility for all building projects in the District. During the construction period from 1989 through 1998, Passarelli provided gifts to administrators and employees of the School District. Administrators receiving gifts included Superintendent Thomas Kent and Assistants to the Superintendent, Fithian and Shaner. Passarelli also provided gifts to Shaner after she was appointed Superintendent. Between 1989 and 1998 the gifts from Passarelli to Shaner included meals, tickets to sporting and other events, jewelry, flowers, books, gift certificates to Doneckers (an upscale department store), the totals of which exceeded $15,000. Shaner accepted these gifts from Passarelli during the time that she was Assistant Superintendent and Project Manager supervising Passarelli's work and approving his invoices. In 1997, questions regarding Passarelli's performance as a Construction Manager increased. As a result, the School Board sought RFP's for a Construction Manager in March 1998. The School Board hired a firm for construction management services in May 1998. After Passarelli's termination for Construction Manager, he reduced the value of his gifts to Shaner. Turning to the Statement of Financial Interests (FIS's) which Shaner filed in her capacity as Assistant Superintendent and Superintendent of the School District for the calendar years 1991 through 1999, Shaner did not disclose any sources of income for the years 1992, 1993, and 1996. Shaner did not disclose the School District as a source of income for the calendar years 1994 and 1995, nor Immaculata College as a source of income for the calendar years 1997 and 1999. Shaner did not disclose the receipt of gifts from Passarelli on her FIS's for the calendar years 1991 through 1999. Having summarized the above relevant facts, we must now determine whether the actions of violated Section(s) 3(a) and 3(c) of the Ethics Act. The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein it is proposed to resolve the case by finding: violations of Section 1103(a) of the Ethics Act in relation to the acceptance of gifts in her official capacity from a construction manager overseeing district construction projects that she was supervising; no violation of Section 1103(c) as there was insufficient evidence to support a finding that Shaner accepted such gifts based upon an understanding that her official action would be influenced thereby; violations of Section 1105(b)(6) when she failed to disclose the source of all gifts received in excess of $250 on FIS's for the 1994, 1995, 1996, 1997, and 1998 calendar ears; violations of Section 1105(b)(5) when Shaner failed to disclose on FIS's for the 1996 calendar year all forms of income received in excess of $1,300; and when she failed to disclose the West Chester School District as a source of income for calendar year 1997. In addition, Shaner agrees to file amended FIS's and make payment of $16,899 (($15,649 as to the 1103(a) violation and $1,250 ($250 per FIS year) for the FIS violations)) within 30 days of the issuance of this Order through this Commission to the Commonwealth of Pennsylvania. Shaner, 99- 015 -C2 Page 17 Under Section 1103(a) of the Ethics Act, there were uses of authority of office on the part of Shaner. But for the fact that Shaner was Assistant Superintendent and Project Manager, she would not have been in a position to review or approve time invoices submitted by Passarelli. Coinciding with the approval of such invoices was the receipt by Shaner of numerous gifts from Passarelli. The uses of authority of office by Shaner resulted in private pecuniary benefits to her consisting of the gifts she received from Passarelli. Accordingly, Shaner violated Section 1103(a) of the Ethics Law when she accepted gifts from the construction manager whom she oversaw as to a district construction project that she was supervising. See, Volpe, Order 579 -R. Turning to Section 1103(c) of the Ethics Act, in order to establish a violation under this provision of the Ethics Act, it is necessary to show that a public official /employee solicited or accepted something of value based on the understanding that her official action or judgment would be influenced thereby. In this case, the Stipulated Findings reflect that Shaner approved invoices of Passarelli at a time when she was receiving gifts from him. However, the record does not establish, based upon the Stipulated Findings before us, that there was in fact an understanding between Shaner and Passarelli. Accordingly, we are compelled to find no violation of Section 1103(c) of the Ethics Act as to this aspect of the allegation based upon an insufficiency of evidence. See, Brink, Order 1007 Regarding the FIS allegations, the facts reflect that Shaner did not disclose the requisite information concerning the gifts that she received from Passarelli in excess of $250 for the calendar years 1994 through 1998 inclusive. Accordingly, Shaner violated Section 1105(b)(6) of the Ethics Law when she failed to disclose the source of gifts and requisite information on her FIS's for the calendar years 1994 through and including 1998. As to Section 1105(b)(5) of the Ethics Act, the Stipulated Findings reflect that Shaner failed to disclose any sources of income of $1,300 or more for the 1996 calendar year and secondly failed to disclose the School District as a source of income for the 1997 calendar year. Hence, Shaner violated Section 1105(b)(5) of the Ethics Act when she failed to disclose on her FIS for the 1996 calendar year all sources of income of $1,300 or more. In addition, Shaner violated Section 1105(b)(5) of the Ethics Act when she failed to disclose the School District as a source of income for the 1997 calendar year FIS period. As to the Consent Agreement, we believe that the Consent Agreement is the proper disposition for this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. As per the Consent Agreement, Shaner is directed to make the payment of $16,899 to the Commonwealth of Pennsylvania within 30 days of the date of this Order and to file amended Statements of Financial Interests for the calendar years 1994 through 1998. Compliance with the foregoing will result in the closing of this case with no further action on our part. Noncompliance will result in the institution of an order enforcement action. The actions of Shaner compel further commentary on our part. It is both clear and obvious that Shaner used public office for the pursuit of personal financial gain. Through the proverbial 'wink and nod ", Shaner readily approved the invoices submitted by Passarelli to the School District. Passarelli, in turn, showered Shaner with numerous gifts during this period of time. Despite Shaner's positions of trust in the School District, that is, Assistant Superintendent and Project Manager, she received gifts totaling thousands of dollars from Passarelli while she was reviewing /approving his invoices. Shaner, 99- 015 -C2 Page 18 Ethics was of no concern to Shaner whose actions were motivated for personal financial gain at the expense of the public trust. Although the Ethics Act was ignored by Shaner, the payment of $16,899 may to some extent impress upon her the magnitude of her misconduct. Fortunately, for the taxpayers of the School District and in particular the school children themselves, Shaner is no longer employed by the District. IV. CONCLUSIONS OF LAW: 1. Janet Shaner, as an Assistant to the Superintendent in West Chester School District, was a public employee subject to the provisions of Act 9 of 1989/Act 93 of 1998, Chapter 11. 2. Shaner violated Section 1103(a), 65 Pa.C.S. 1103(a) of the Public Official and Employee Ethics Law when she accepted gifts in her official capacity from a construction manager overseeing district construction projects that Shaner was supervising. 3. Shaner did not violate Section 1103(c) of the Ethics Act as there was insufficient evidence to support a finding that Shaner accepted such gifts based upon an understanding that her official action would be influenced thereby. 4. Shaner violated Section 1105(b)(6) of the Ethics Act when she failed to disclose the source of all gifts received in excess of $250 on Statements of Financial Interests for the 1994, 1995, 1996, 1997, and 1998 calendar years. 5. Shaner violated Section 1105(b)(5) of the Ethics Act when she failed to disclose on Statements of Financial Interests for the 1996 calendar year all forms of income received in excess of $1,300 and when she failed to disclose the West Chester School District as a source of income for calendar year 1997. In Re: Janet Shaner File Docket: 99- 015 -C2 Date Decided: 9/20/00 Date Mailed: 10/5/00 ORDER NO. 1163 1. Janey Shaner, as an Assistant to the Superintendent in West Chester School District, violated Section 1103(a), 65 Pa.C.S. 1103(a) of the Public Official and Employee Ethics Law when she accepted gifts in her official capacity from a construction manager overseeing district construction projects that Shaner was supervising. 2. Shaner did not violate Section 1103(c) of the Ethics Act as there was insufficient evidence to support a finding that Shaner accepted such gifts based upon an understanding that her official action would be influenced thereby. 3. Shaner violated Section 1105(b)(6) of the Ethics Act when she failed to disclose the source of all gifts received in excess of $250 on Statements of Financial Interests for the 1994, 1995, 1996, 1997 and 1998 calendar years. 4. Shaner violated Section 1105(b)(5) of the Ethics Act when she failed to disclose on Statements of Financial Interests for the 1996 calendar year all forms of income received in excess of $1,300 and when she failed to disclose the West Chester School District as a source of income for calendar year 1997. 5. Shaner is directed to file amended Statements of Financial Interests forms for calendar years 1994, 1995, 1996, 1997, and 1998 reporting all gifts received and income. 6. As per the Consent Agreement of the parties, Shaner is directed to make payment of $16,899 through this Commission to the Commonwealth of Pennsylvania within 30 days of the date of issuance of this order. a. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Vice Chair