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HomeMy WebLinkAbout1291 BouchIn Re: Ronald Bouch File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Donald M. McCurdy Michael Healey Paul M. Henry 02- 028 -C2 Order No. 1291 9/15/03 9/29/03 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 held. The record is complete. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Bouch 02- 028 -C2 Page 2 I. ALLEGATION: That Ronald Bouch, a (public official /public employee) in his capacity as a supervisor for South Newton Township, Cumberland County, violated the following rovisions of the State Ethics Act (Act 93 of 1998) when he used the authority of his office for a private pecuniary benefit by using township monies to purchase a color copier which he utilized for his own purposes; when he failed to file a Statement of Financial Interests for the 2001 calendar year by May 1, 2002; and when he failed to disclose on Statements of Financial Interestsfiled for the 1999 calendar year his interests in The Traveling Jukebox, a business he owns. 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). Section 2. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public 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. §1102. Section 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 Pa.C.S. §1104(a). Bouch 02- 028 -C2 Page 3 Section 1105. Statement of financial interests. (a) Form. - -The statement of financial interests filed pursuant to this chapter shall be on a form prescribed by the commission. All information requested on the statement shall be provided to the best of the knowledge, information and belief of the person required to file and shall be signed under oath or equivalent affirmation. 65 Pa.C.S. §1105(a). Section 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. (8) Any office, directorship or employment of any nature whatsoever in any business entity. (9) Any financial interest in any legal entity engaged in business for profit. 65 Pa.C.S. §1105(b). II. FINDINGS: A. Pleadings 1. The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Ronald Bouch violated provisions of the State Ethics Act (Act 93 of 1998). 2. Upon review of the complaint the Investigative Division initiated a preliminary inquiry on March 14, 2002. 3. The preliminary inquiry was completed within sixty days. 4. On May 13, 2002, a letter was forwarded to Ronald Bouch, by the Investigative Division of the State Ethics Commission informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, no. 7001 1940 0001 2179 3328. b. The domestic return receipt bore the signature of Ron Bouch, with a delivery date of May 14, 2002. 5. Periodic notice letters were forwarded to Ronald Bouch in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 6. The Investigative Complaint was mailed to the Respondent on November 8, 2002. 7. Ronald Bouch has served as a South Newton Township Supervisor since January 4, 2000. a. Bouch also has been employed by the township as a laborer on a part -time Bouch 02- 028 -C2 Page 4 basis since taking office. 1. Appointments have been made by the board of supervisors. b. South Newton Township does not have any full -time employees. 8. Professionally, Bouch is self employed operating the Traveling Jukebox, 16 West Main Street, Walnut Bottom, PA 17266. a. This business is located next to Bouch's primary residence, 20 West Main Street, Walnut Bottom, PA 17266. b. Bouch has owned and operated the Traveling Jukebox since at least 1998. c. The Traveling Jukebox is a disc jockey and vending machine business started by Bouch. 9. Bouch's primary residence and business are located diagonally across the street from the South Newton Township Municipal Building. a. Bouch has 24 hour a day access to the South Newton Township Building in his capacity as a township supervisor. 10. On or about May 9, 2000, the South Newton Township Board of Supervisors considered the purchase of a new Hewlett Packard CC -270 copier. a. The purchase was discussed during a public meeting of the board of supervisors. b. Supervisor Bixler disclosed this purchase to residents in attendance at this meeting. 11. Minutes from the South Newton Township Board of Supervisors' May 9, 2000, meeting include the following discussion regarding the acquisition of the copier. "Tom Bixler (supervisor) informed the residents that the township purchased a new Hewlett Packard CC-270 copier for $499.98. It is to be kept at the secretary's office and the old one brought to the township building." 12. The township secretary at that time was Nancy Shoap. a. Shoap maintained an office in her home. 13. Bouch, his official capacity as supervisor, purchased a Hewlett Packard Model CC -270 copier from Staples, 1025 Wayne Avenue, Chambersburg, PA 17201, on May 9, 2000. a. Items purchased along with the copier included: Hewlett Packard CC -270 HP C1823d Large Color 1 HP 1600 Black Cartridge HP 1600 Black Cartridge HP C1823d Large Color 1 Xerox 8.5 x 11.500 $ 499.98 $ 34.78 $ 28.68 $ 28.68 $ 34.78 $ 35.98 $ 662.88 Bouch 02- 028 -C2 Page 5 b. This purchase was charged on the township's credit account at Staples. c. Bouch was the authorized township representative who signed the charge slip at Staples. 14. On July 11, 2000, South Newton Township check number 1905 in the amount of $1,381.35 was issued to Staples Credit Plan, P.O. Box 30292, Salt Lake City, UT 84130 -0292. a. This check was signed by Supervisor Ronald Bouch and Secretary Nancy Shoap. b. This check covered costs incurred as part of four (4) separate Staples invoices including the $662.88 copier and related supplies purchase. 15. Nancy Shoap, the township secretary when the new copier was purchased, was replaced as township secretary by Tammy Sipes in or about September 2000. 16. Shoap was in possession of the new copier from the purchase due until resigning at the end of August 2000. 17. Bouch admits to having the copier at his residence from November 2000 to November 2001. 18. There was no action taken by the board of supervisors authorizing Bouch to maintain the copier. 19. On November 13, 2001, the South Newton Township Board of Supervisors took action specifically directing Bouch to return the color copier. Minutes from the November 13, 2001, meeting include the following actions directing Bouch to return the copier. a. "Meily motioned for Mr. Bouch to return the township copier that he had at his residence to the township building. Bixler seconded, the vote unanimous." b. Bouch was present for this meeting and participated in board action directing him to return the color copier that he had at his residence. 20. Bouch, in his official capacity as a South Newton township Supervisor has annually filed Statements of Financial Interests for the 1998, 1999 and 2000 calendar years. 21. Statements of Financial Interests on file with South Newton Township include the following filings for Bouch: Calendar Year: Filed: Creditors: Direct /Indirect Income: Office, Directorship or Emp. in any Business: Financial Int. in any Bus: All Other Financial Interests: Calendar Year: Filed: Creditors: 2000 01/23/01 on SEC Form 1/01 None Traveling Jukebox 16 West Main Street Walnut Bottom Traveling Jukebox; owner Traveling Jukebox; 100% None 1999 02/09/00 on SEC Form 1/00 None Bouch 02- 028 -C2 Page 6 Direct /Indirect Income: All Other Financial Interests: Calendar Year: Filed: Creditors: Direct /Indirect Income: Office, Directorship or Emp. in any Business: All Other Financial Interests: 22. On May 16, 2002, Bouch filed a Statement of Financial Interests for calendar year 2001 with the Investigative Division of the State Ethics Commission. a. Bouch filed the Statement with the township two days after receiving the Notice of Investigation which listed allegations that he failed to file a Statement of Financial Interests for the 2001 calendar year by May 1, 2002. 23. The Statement of Financial Interests filed by Bouch on May 16, 2002, contained the following information: Direct /Indirect Income: Office, Directorship or Emp. in any Business: Financial Int. in any Bus: All Other Financial Interests: Traveling Jukebox; South Newton Township None 1998 12/06/99 on SEC Form 1/99 None Traveling Jukebox Traveling Jukebox None Traveling Jukebox Traveling Jukebox; owner Traveling Jukebox, 100% None 24. Bouch received income totaling $5,890.00 from South Newton Township during calendar year 2001. 25. Bouch failed to disclose South Newton Township as a source of income in excess of $1,300 on this Statement of Financial Interests for calendar year 2000. a. Bouch received income totaling $6,482.60 from South Newton Township during calendar year 2000. 26. Bouch failed to list the Traveling Jukebox as a business he has an office, directorship or employment in, as well as a financial interests in any business for calendar year 1999 filing. a. Bouch makes this disclosure on SFIs filed for calendar years 2001, 2000 and 1998. 27. Bouch received wages from South Newton Township totaling $5,890 during 2001 while failing to timely file the required Statement of Financial Interests form by May 1, 2002, for calendar year 2001. B. Testimony 28. Nancy Shoap was the secretary /treasurer of South Newton Township from April through August of 2000. a. Shoap prepared the meeting minutes, wrote out checks to pay township bills, did mail collection /distribution, and prepared the payroll. Bouch 02- 028 -C2 Page 7 b. Shoap as secretary worked out of the basement of her house, just as the previous secretary. c. The board of supervisors decided to buy a new copier for the township within a specified price range. 1. Shoap was directed to go to Staples to find a copier that would meet the township's needs. (a) Shoap selected a copier which she believed was the best buy. (1) The copier cost about $500. (2) The copier was a Hewlett Packard CC270. (3) The township paid for the copier on July 11, 2000. d. Shoap took the township copier to the township building a few days before her last day of employment on August 31, 2000. e. Bouch's house is about one half block from the township building. f. Shoap was replaced by Tammy Sipes as township secretary. g. The township also had a copier in the township building. 1. That copier was not in good working order. 29. Richard Meily is a former South Newton Township Supervisor. a. Bouch and Bixler were the other two supervisors during Meily's term. b. Nancy Shoap and then Tammy Sipes were the secretaries during his tenure on the board. c. The supervisors wanted the township secretary to work out of the township building more than her home. d. The supervisors discussed purchasing a new photocopier because the old copier was always breaking down. e. The supervisors had discussions about locating all township equipment in the township building. 1. At a certain point in time. Bouch took a new photocopier to his house. (a) At a board meeting, Meily made a motion that Bouch return the township photocopier to the municipal building. (1) The motion occurred at a board meeting on November 13, 2001. (2) Meily forgot about the new copier until the old one would break down. (3) Meily did not see the photocopier returned by Bouch when Meily's term ended at the end of December of 2001. Bouch 02- 028 -C2 Page 8 2. This was part of an effort to have more control over township funds, budget and property. f. Meily, at a November 13, 2001, meeting, made a motion that no one, including the supervisors, could be assistant secretary. 1. The motion passed by a unanimous vote. There is a history in the township of secretaries working out of their homes. g. 30. Tammy Sipes is a former secretary of South Newton Township. a. After supervisors Meily and Bouch told Sipes that the township secretary quit, they asked her to take the job until they could find a replacement as the permanent township secretary. b. Sipes began working as township secretary at the end of August 2000 and continued until June of 2002. (1) Sipes indicated that she would only work until a permanent replacement was found. (2) Sipes worked as the secretary /treasurer out of the township building and her house. c. In the township building, there was a computer that malfunctioned, a fax machine that did not work and a photocopier that only worked only half the time. d. After Sipes worked six months as secretary, she learned that Bouch had a township photocopier in his house. e. Sipes needed a photocopier to do her job, given the need for copies concerning township business. f. Sipes did the secretarial work for the township. g. Bouch did meeting agendas or occasionally printed an agenda. Aside from agendas, Bouch did no secretarial work. Sipes did the minutes, bills lists, and correspondence, unless supervisor personally wanted to handle a matter. Although the board of supervisors passed a motion in November of 2001 for Bouch to return the township photocopier, Bouch did not do so until February of 2002. (1) (2) (3) (1) Sipes specifically recalled that it took Bouch three months to return the copier because she "... ... was tired of fighting with the old one [photocopier]." (2) Sipes also remembered that it was about a month after Gruver took office in January of 2002 that Bouch returned the photocopier. h. Statements of Financial Interests (SFI's) are kept on file with the township. a Bouch 02- 028 -C2 Page 9 (1) SFI's are kept on record for five years. As to a certain recusal petitions filed against Bouch, Sipes did not prepare it but signed it. j. Sipes gave Bouch the SFI for the calendar year 2001 the day she got the form. (1) Bouch turned in his (2001 calendar year) SFI to Sipes prior to the end of April. (2) When the State Ethics Commission Investigator came to the township, Bouch's SFI was not in the file folder. (a) Records become missing in the township. 31. Carrie Strosnider is an operational manager at Staples. a. Staples of Chambersburg does business with South Newton Township. b. Staples has a business leasing program to third party companies. (1) Approvals are obtained through American Express. (2) The total must be at least $1,200 for a lease arrangement. (a) A $500 purchase by itself with nothing more would not qualify for a lease. (3) A minimum lease is for 24 months. c. A Staples chart (ID -11) reflects approximate monthly lease payments depending upon the amount involved and duration of the lease. (1) A 24 -month lease on a $1,200 transaction would generate a monthly payment of $59. (2) A 24 -month lease on a $4,400 transaction would generate a monthly payment of $212. d. The Hewlett Packard CC270 photocopier has no counter to indicate the number of photocopies made. 32. Donald E. Gruver is a former supervisor and planning commission board member in South Newton Township. a. Gruver was a supervisor from January 2002 to approximately October 2002. b. Gruver was also a part -time township laborer for about two years in 2000 and 2001. c. During Gruver's tenure as a supervisor, Bouch did not bring back the township photocopier until the end of February 2002. 33. Thomas L. Bixler, Jr., is a South Newton Township Supervisor since April 1997 and is also a Roadmaster. a. Nancy Shoap is a former township secretary who worked out of her house. Bouch 02- 028 -C2 Page 10 b. Tammy Sipes replaced Shoap as secretary. c. Bouch has his own business, The Traveling Jukebox. d. Bixler participated and voted for the motion on November 13, 2001, for Bouch to return the township photocopier from his home to the township building. e. Bixler testified that he believed that the photocopier was returned late in the evening of November 13, 2001, but was uncertain. (1) Bixler did not stay at the township building that evening. (2) Bixler admitted he did not know when the photocopier was returned. f. Prior to November 13, 2001, Bixler and the other supervisor, Meily, did not have a problem with Bouch having the township photocopier at his residence. 34. Daniel M. Bender is a Special Investigator III for the State Ethics Commission. a. SFI compliance reviews are done in municipalities in conjunction with investigations. b. During the Bouch investigation, the SFI's for Bouch and all other individuals in the township were reviewed. c. SFI's for Bouch for calendar years 1999 and 2000 were on file but not the 2001 calendar year. d. By reviewing tax returns and interviewing individuals, Bouch had failed to disclose his interest in The Traveling Jukebox. on his 1999 calendar year SFI. (1) The Traveling Jukebox was unlisted by Bouch on one or more of his SFI's. e. The township purchased a photocopier from Staples for about $499. f. The Investigative Division determined that Bouch had the township copier in his possession for 17 months. g. The township copier with the accessories cost $662.80 [sic] without sales tax. h. By using the Staples leasing payments and proportionately reducing the payment for 17 months for a $700 purchase (with sales tax), the Investigative Division calculated $510, based upon a $600 amount for a 17 month lease. (1) $510 was computed by using a $30 per month lease payment times 17 months. (2) The Staples lease chart had a $1200 figure at $50 month for a 24 month lease. (3) The longer the lease, the lower the monthly payment. The Traveling Jukebox is a business for profit for Bouch. 35. Ronald Bouch is a South Newton Township Supervisor and Board Chairman. Bouch 02- 028 -C2 Page 11 a. Bouch is self - employed in the vending business. (1) The Traveling Jukebox is the name of his company b. Township secretaries historically worked out of their houses. c. The board of supervisors authorized Nancy Shoap to price photocopiers. (1) The photocopier was purchased from Staples for $499. d The photocopier was brought from Shoap's house to the township at the end of August 2000. (1) Bouch subsequently took the township photocopier from the township building to his residence. e. Bouch testified that he needed to have the township copier at his residence because the township secretary was not getting her work done. (1) Bouch testified that he only used the township copier for township business while the copier was at his residence. f. At a board of supervisors meeting on November 13, 2001, a motion carried that directed Bouch to return the township copier to the township building. (1) Bouch testified that he returned the photocopier to the township at 11:30 p.m. that night while Tammy Sipes and her husband Joe were present. g. Bouch admits he failed to disclose his financial interest in The Traveling Jukebox on his 1999 calendar year SFI. (1) Bouch attributes the failure to disclose to his first year in office. h. The Traveling Jukebox is listed on Bouch's tax return as being 100% owned by him. While the township copier was at Bouch's residence, anyone wanting to obtain copies at the township had to use the old copier. j. Bouch never reimbursed the township for having the township copier at this residence. C. Stipulations 36. The minutes for the January 2000 reorganizational meeting and the November 13, 2001, are true and correct. D. Documents 37. ID1 is a photocopy of a charge slip by South Newton township from Staples as to a Hewlett Packard copier totaling $662.88. 38. ID2 is a photocopy in part of an invoice dated May 9, 2000, from Staples to Newton Township reflecting the purchase of a Hewlett Packard copier CC -270 in the amount of $499.98 plus replacement cartridges for a grand total of $662.88. Bouch 02- 028 -C2 Page 12 39. I D3 is a photocopy of a check of the Board of Supervisors of South Newton Township dated July 1, 2000, payable to Staples in the amount of $1,381.35. 40. I D4, pp 1 -4, consists of photocopies of SFI's for Bouch for the calendar years 2001- 1998 respectively. a. For the 1999 calendar year SFI, Bouch listed Real Estate Interests as None; Creditors as None; Sources of Income as The Traveling Jukebox and South Newton Township; Gifts as None; Transportation as None; Office, Directorship, or Employment in any Business as None; Financial Interest in Any Legal Entity in Business for Profit as None; and Business Interest Transferred to Immediate Family Member as None. (1) Bouch failed to disclose his interest in The Traveling Jukebox under Office, Directorship, or Employment in Any Business and under Financial Interest in Any Legal Entity in Business for Profit. 41. ID7 is a photocopy of the minutes of the Board of Supervisors meeting of South Newton Township on November 13, 2001. a. One of the items of township business transpired as follows: Meily motioned for Mr. Bouch to return the Township copier that he had at his home to the building. Bixler 2" Vote was unanimous. 42. ID11 is a photocopy of an estimated payment chart for leasing equipment. a. The range of purchases is from $1,200 to $10,250. b. The range of time payments on a lease is from 24 months to 60 months. (1) A $1,200 lease generates a monthly payment of $59 for 24 months or $35 for 60 months. 43. ID12 is a photocopy of a report of investigative activity for South Newton Township as to the SFI compliance by the public officials and public employees in the township for the calendar years 1999 through 2001. a. For the 2001 calendar year SFI, Bouch is listed as a non - filer. 44. R4 is a photocopy of the minutes of the South Newton Township Board of Supervisors for its reorganizational meetings of January 2, 2001, and January 7, 2002. a. For the year 2001: (1) The supervisors were Ron Bouch, Richard Meily and Tom Bixler. (2) All three supervisors were appointed roadmasters. (3) Tammy Sipes was retained as Secretary/Treasurer. (4) Bouch and Bixler were appointed to the position of Assistant Secretary. b. For the year 2002: (1) The supervisors were Ron Bouch, Donald Gruver, and Tom Bixler. (2) Bixler and Bouch were appointed roadmasters. Bouch 02- 028 -C2 Page 13 (3) Tammy Sipes was retained as Secretary/Treasurer. (4) All three supervisors were appointed to the position of Assistant Secretary. III. DISCUSSION: At all times relevant to this matter, the Respondent, Ronald Bouch, hereinafter Bouch, 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 allegations are that Bouch, as a South Newton Township Supervisor, violated Sections 1103(a), 1104(a), 1105(a) and 1105(b)(8) and (9) of the Ethics Act when he: utilized a township color copier for his own purposes; failed to file a Statement of Financial Interests (SFI) for the 2001 calendar year by May 1, 2002; and failed to disclose on his SFI filed for the 1999 calendar year his financial interests in his business, The Traveling Jukebox. Pursuant to Section 1103(a) of the Ethics Act quoted above, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. Section 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 1105(b) of the Ethics Act requires that every public official /public employee and candidate list certain required information and financial interests. Having noted the issues and applicable law, we shall now summarize the relevant facts. The South Newton Township Board of Supervisors in the spring of 2000 directed the secretary /treasurer to obtain prices for a new (second) township photocopier, given that the existing township copier was not dependable. The township secretary /treasurer, Nancy Shoap, priced a Hewlett- Packard Copier CC270 at Staples for a price of approximately $500.00. With the approval of the board of supervisors, the photocopier was purchased with replacement cartridges at a total cost of $662.88. The township had no option to lease the photocopier. Staples has a policy that purchase(s)must equal or exceed $1,200 before a lease may be arranged. Using the lowest figure of $1,200, the leasing arrangement for Staples would be a monthly payment of $59 per month based upon a 24 -month lease down to $35 per month based upon a 60 -month lease. There is a history in the township of secretary /treasurers working primarily in their own residences. Certain township equipment was maintained in the residence of the secretary /treasurer so that she could perform her township duties and responsibilities. Shoap placed the new photocopier in her office within her residence. When Shoap terminated her employment with the township at the end of August 2000, she returned the photocopier, other township property and files to the township building. Shortly thereafter, Bouch, with the knowledge of the other two supervisors, took the township photocopier to his personal residence which was located catty corner to the township building. While the photocopier was at Bouch's residence, no one was able to observe Bouch's usage. Further, the township copier did not have a counter so that there was no way of determining how many photocopies were made while Bouch had the township photocopier at his residence. Bouch testified that he only used the photocopier to run off township agendas or other materials for the township and that he did not use the photocopier for private or business purposes. Bouch 02- 028 -C2 Page 14 The retention of the township photocopier by Bouch became an agenda item at a meeting of the township board of supervisors on November 13, 2001. At that meeting, one of the other supervisors made a successful motion that Bouch return the township photocopier to the township building. Although Bouch testified that he returned the hotocopier to the township building that very day shortly before midnight, three other individuals testified to the contrary. In particular, Tammy Sipes, the then current secretary /treasurer, and Donald Gruver, a former township supervisor, both testified that Bouch did not return the photocopier to the township until the latter part of February 2002. Richard Meily, a former board supervisor, testified that Bouch had not returned the copier when he left office at the end of December of 2001. Turning to the two SFI allegations in this case, the first charge is that Bouch failed to file an SFI for the 2001 calendar year by May 1, 2002. When the Investigative Division did a compliance audit as to the SFI's on file in South Newton Township, the 2001 calendar year SFI for Bouch was not on file. Hence, the Investigative Division takes the position that Bouch was a non -filer for the 2001 SFI calendar year. However, Tammy Sipes, the then township secretary /treasurer, testified that she distributed the SFI's in the spring of 2002 for the calendar year 2001 and that Bouch completed and filed his 2001 calendar year SFI in April of 2002. Ms. Sipes noted that the SFI was no longer in the file when the Investigative Division did its compliance audit but township files and records on occasion become misplaced or missing. The second SFI allegation concerns the charge that Bouch filed a deficient SFI for the 1999 calendar year by failing to disclose his interests in The Traveling Jukebox. The Traveling Jukebox is a vending business that is owned and operated by Bouch. On the 1999 calendar year SFI filed by Bouch, he listed The Traveling Jukebox as a source of income but failed to list that business as an office, directorship, or employment in any business and also failed to list it as a financial interest in any legal entity in business for profit. The Investigative Division has filed a brief wherein it raises the following arguments: Bouch had possession of the township color photocopier at his residence for 17 months from September 2000 until March 2002; at a South Newton Township board meeting on November 13, 2001, the board directed Bouch to return the township photocopier to the township building but Bouch did not comply until late February of 2002; Bouch failed to file an SFI for calendar year 2001 and failed to disclose his financial interest in The Traveling Jukebox on his 1999 calendar year SFI; Bouch's testimony that he made 2,500 to 3,500 copies for township business annually at his residence contradicts the township secretary's testimony that she only needed to make about 1,200 copies per year; Bouch violated §1103(a) of the Ethics Act when he had sole possession of the township photocopier at his home for 17 months; Bouch received a private pecuniary benefit in using the township copier by avoiding the wear on his own equipment and by saving $500 in not having to buy his own copier; public officials may not use government facilities, materials, time and equipment for private employment or business purposes; Bouch /his business received a private pecuniary benefit of $500, the cost of the photocopier, or alternatively $1,003, the cost of a lease payment of $59 per month for 17 months; Bouch contrived his service as secretary in that such work was done by Tammy Sipes; the Commission should impose restitution plus treble penalt ($500 plus $1,500), given that Bouch's conduct was intentional and blatant; Bouch violated §� §1104(a) and 1105(b) of the Ethics Act in failing to file an SFI for calendar year 2001 an failing to list his financial interest in The Traveling Jukebox for the 1999 calendar year SFI. The Respondent has filed a brief raising the following issues: the Investigative Division failed to establish a violation by clear and convincing proof; the township has a history of township secretaries working out of their homes; the other two supervisors agreed that Bouch could take the photocopier to his home; the board appointed Bouch as assistant secretary at the reorganizational meeting of January 2001; Tammy Sipes testified that Bouch timely filed his 2001 calendar year SFI which subsequently became misplaced; the Investigative Division Bouch 02- 028 -C2 Page 15 presented no evidence to show that Bouch used the township photocopier for non - township business purposes at his home; Bouch did not use the authority of his office to obtain a financial gain; Smith, Advice 96 -574 ruled that there is no violation of the Ethics Act if the municipal equipment at home is used for government purposes; the use of the township photocopier by Bouch has a de minimis economic impact on the township; Bouch did not violate §1105(b) of the Ethics Act because The Traveling Jukebox is not a corporation and no office or directorship is held by Bouch. Having summarized the above relevant facts, we must now determine whether the actions of Respondent Bouch violated Sections 1103(a), 1104(a), and 1105(b)(8) and (9) of the Ethics Act. As we apply the facts to the allegations, the Ethics Act requires that there is clear and convincing evidence to support violations of the Ethics Act. Clear and convincing evidence is "testimony that is so 'clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue. - In Re: Charles E.D.M., 550 Pa. 595, 601, 708 A.2d 88, 91 (1998) (Citation omitted). In applying the provision of Section 1103(a) of the Ethics Act to the first allegation, we will demarcate the time when Bouch had the photocopier into two time segments, the first being from the point when he took the township photocopier from the township building to his home until November 13, 2001. We will then consider the timeframe that Bouch had the photocopier from November 13, 2001, until he returned the photocopier to the township. As to the latter timeframe, there was conflicting testimony as to when Bouch returned the photocopier to the township. Bouch testified that he returned the photocopier the very day that he was directed to do so by the township board of supervisors. However, Tammy Sipes and Donald Gruver testified that Bouch did not return the photocopier to the township on the day he was directed to do so but returned the photocopier well over three months later, at the end of February 2002. Richard Meily testified that that copier had not been returned by Bouch when Meily left office at the end December of 2001. We found Sipes, Gruver, and Meily to be three disinterested third party witnesses, all of whom are credible in our view. Based upon such corroborative testimony, we found as a fact that Bouch did not return the photocopier to the township until the latter part of February 2002. As to the time frame between when Bouch took the photocopier to his residence and November 13, 2001, we find no violation of the Ethics Act as to the activities by Bouch in that time frame. There was a use of authority of office on the part of Bouch with regard to the township photocopier. But for the fact that he was a township supervisor, he would not been in a position to take the township photocopier to his residence. However, Bouch took the photocopier to his residence with the knowledge of the other two supervisors. Hence, Bouch had authority to take the photocopier to his home. Under that circumstance, it is necessary to show non - governmental usage that resulted in a private pecuniary benefit to Bouch. We have held in numerous instances that municipal equipment, facilities, personnel, and supplies may only be used for government purposes but not for rivate, personal, campaign, re- election, or business purposes. During the time frame up to November 13, 2001, as to Bouch's retention and use of the copier, there was no one "looking over his shoulder" who could testify as to what Bouch did with the photocopier while it was at his residence. Further, the township photocopier did not have a counter, so there is no way of determining how many photocopies were made by Bouch or for what purpose. In that there is not clear and convincing proof of record to show that Bouch used the township photocopier for non - township purposes, we find no violation of Section 1103(a) of the Ethics Act by Bouch while he had the township photocopier at his residence up to November 13, 2001. However, the retention by Bouch of the township photocopier at his residence despite the direction of the board on November 13, 2001, and his failure to return the photocopier to the township until the end of February 2002 is another matter. After the board on November 13, 2001 directed Bouch to return the photocopier to the township, he was required to do so Bouch 02- 028 -C2 Page 16 forthwith. From that point in time until he returned the photocopier to the township at the end of February 2002, Bouch had no authorization to keep the township photocopier at his residence; in fact, Bouch had a specific board directive to return the photocopier. Bouch failed to comply for over three months. Thus, during that time period, Bouch had a piece of township equipment for his use, despite the board's specific direction to him to return that township equipment to the township building. During that time it is not relevant how much Bouch used the township photocopier or for what purpose. Since he failed to comply with the board as directed to return the photocopier, his retention of the township equipment was unauthorized. Accordingly, Bouch violated Section 1103(a) of the Ethics Act when he had the township photocopier at his residence from November 13, 2001, when the board of supervisors directed him to return the copier, until its return by Bouch in the latter part of February 2002. As to this violation, the de minimis exclusion does not apply. By utilizing the Staples leasing chart and extrapolating to a 3.5 month lease for a $500 photocopier purchase, we arrive at a monthly rental of $37 or $130 for 3.5 months. A determination of de minimis is made based upon the particular facts and circumstances of each case. See, Schweinsburq, Order 900. The retention /utilization of the township copier by Bouch for over three months was not de minimis. Turning to the two SFI allegations, we first find that Bouch did not violate Section 1104(a) of the Ethics Act regarding the alleged failure to file his SFI for the 2001 calendar year. The testimony of Tammy Sipes establishes that she gave the blank SFI form to Bouch and that he completed and filed same with her in April of 2002. Sipes also testified that on occasion township documents or files becoming missing or misplaced. Accordingly, Bouch did not violate Section 1104(a) of the Ethics Act as to his 2001 calendar year SFI which he filed with the township on or before May 1, 2002. As to Bouch's SFI for the calendar year 1999, the record establishes that Bouch failed to list his business, The Traveling Jukebox, as either an office, directorship, or employment in any business and as a financial interest in any legal entity engaged in business for profit. The fact that The Traveling Jukebox is not a corporation is unavailing. Bouch was the owner and self employed in that business for profit. He should have but failed to list his financial interest in The Traveling Jukebox. Accordingly, Bouch technically violated Section 1105(b) of the Ethics Act when he failed to disclose his business, The Traveling Jukebox, as an office, directorship, or employment in any business entity and as a financial interest in any legal entity engaged in business for profit on his SFI for calendar year 1999. Bouch is directed within 30 days of the date of mailing of this Order to file an amended SFI for the calendar year 1999 listing his financial interest in The Traveling Jukebox as noted above. Bouch is further directed to file a copy of the 1999 calendar year SFI with this Commission for compliance verification purposes. Having established a violation by Bouch of Section 1103(a) of the Ethics Act, we shall now address the issue of restitution /treble penalty. The Investigative Division requests that we impose a restitution /treble penalty in the amount of $2,000 (restitution of $500 plus treble penalty of $1,500). We are not inclined to impose restitution /treble penalty for the reason we are not able to quantify from this record a sum which would represent the financial gain obtained by Bouch in violating the Ethics Act. We have two problem areas in terms of attempting to quantify a financial gain by Bouch as to the use of the township loader. First, we are not able to discern from a review of the record how long Bouch actually had the copier after the November 13, 2001 meeting. The testimony as to the length of the use of the copier by Bouch reduces to over three months. However, there is nothing of record showing when On the latter part of February) the photocopier was returned. Second, in terms of using a basis to get a comparable value for use of the photocopier, our mathematical extrapolation, while establishing that the gain received by Bouch was more than de minimis, does not provide a sufficiency as to the amount, given the variables in rates as to leasing periods. In addition, the $500 cost of the photocopier cannot be used as a restitution basis for the three plus months Bouch 02- 028 -C2 Page 17 that Bouch had the township photocopier. In short, although there was a financial gain received by Bouch, we are not able to quantify that gain. Hence, in the exercise of our discretion, we shall not impose restitution /treble penalty. See, Heck, Order 1251. IV. CONCLUSIONS OF LAW: 1. Bouch, as a South Newton Township Supervisor is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Bouch did not violate Section 1103(a) of the Ethics Act while he had the township photocopier at his residence up to November 13, 2001, based upon a lack of clear and convincing proof. 3. Bouch violated Section 1103(a) of the Ethics Act when he had the township photocopier at his residence from November 13, 2001, when the board of supervisors directed him to return the copier, until its return by Bouch in the latter part of February 2002. 4. Bouch technically violated Section 1105(b) of the Ethics Act when he failed to disclose his business, The Traveling Jukebox, as an office, directorship, or employment in any business entity and as a financial interest in any legal entity engaged in business for profit on his SFI for calendar year 1999. 5. Bouch did not violate Section 1104(a) of the Ethics Act as to his 2001 calendar year SFI which he filed with the township on or before May 1, 2002. In Re: Ronald Bouch File Docket: 02- 028 -C2 Date Decided: 9/15/03 Date Mailed: 9/29/03 ORDER NO. 1291 1. Bouch, as a South Newton Township Supervisor, violated Section 1103(a) of the Ethics Act when he had the township photocopier at his residence from November 13, 2001, when the board of supervisors directed him to return the copier, until its return by Bouch in the latter part of February 2002. 2. Bouch did not violate Section 1103(a) of the Ethics Act while he had the township photocopier at his residence up to November 13, 2001, based upon a lack of clear and convincing proof. 3. Bouch technically violated Section 1105(b) of the Ethics Act when he failed to disclose his business, The Traveling Jukebox, as an office, directorship, or employment in any business entity and as a financial interest in any legal entity engaged in business for profit on his Statement of Financial Interests for calendar year 1999. 4. Bouch did not violate Section 1104(a) of the Ethics Act as to his 2001 calendar year Statement of Financial Interests which he filed with the township on or before May 1, 2002. 5. Bouch is directed within 30 days of the mailing date of this Order to file an amended Statement of Financial Interests for the calendar year 1999 correcting the deficiencies noted above, with one copy filed with the Commission for compliance verification purposes. Non compliance will result in the institution of an order enforcement action BY THE COMMISSION, Louis W. Fryman, Chair