HomeMy WebLinkAbout1296 GeisIn Re: Mark Geis
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
03 -015
Order No. 1298
12/1/03
12/15/03
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 not filed and a hearing was deemed waived. 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11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.
Geis 03 -015
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I. ALLEGATION:
That Mark Geis, a (public official /public employee) in his capacity as a councilman for
the City of Altoona, Blair County, violated the following provisions of the State Ethics Act (Act
93 of 1998) when he used the authority of his office for the private pecuniary gain of a
member of his immediate family, including but not limited participating in the official actions of
city council, including but not limited to voting to appoint his father to a paid position on the
Altoona City Authority.
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 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 p ublic office
or employment for the private pecuniary benefit of himself, a
member of his immediate family or a business with which he or a
member of his immediate family is associated. "Conflict" or
"conflict of interest" does not include an action having a de
minimis economic impact or which affects to the same degree a
class consisting of the general public or a subclass consisting of
an industry, occupation or other group which includes the public
official or public employee, a member of his immediate family or a
business with which he or a member of his immediate family is
associated.
65 Pa.C.S. §1102.
II. FINDINGS:
1. The Investigative Division of the State Ethics Commission received a signed, sworn
complaint alleging that Mark Geis 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 3, 2003.
3. The preliminary inquiry was completed within sixty days.
4. On April 29, 2003, a letter was forwarded to Mark Geis, 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 4707.
b. The domestic return receipt bore the signature of Tracy Ferguson, with a
delivery date of May 2, 2003.
5. Periodic notice letters were forwarded to Mark Geis in accordance with the provisions
of the Ethics Law advising him of the general status of the investigation.
Geis 03 -015
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6. The Investigative Complaint was mailed to the Respondent on October 21, 2003.
7. Mark Geis has served as a councilman for the City of Altoona, Blair County, since 1994.
8. Altoona City government consists of six elected council members and an elected
mayor.
9. Altoona City council is the appointing authority to the Altoona City Authority.
a. The Authority is the only compensated appointment made by City Council.
b. Appointments are for five year terms.
10. By way of Resolution No. 7445, adopted October 10, 1950, Altoona City Council set
compensation for City Authority members at $20.00 per meeting.
a. One regularly scheduled meeting is held each month to conduct Authority
business.
b. Special meetings and work sessions are held on an as- needed basis.
11. In anticipation of appointments to various Authorities, Boards and Commissions, the
City of Altoona advertises for applications to its Talent Bank.
a. Applicants are required to be city residents.
b. Applications are available at the Altoona Public Library and Altoona City Hall.
c. Applications are due by November 1 in anticipation of appointments being
made in November, December and January.
d. Advertisements for Talent Bank Applications are publicized on the local Public
Access Channel (Channel 9) during the months of October, November and
December, and in the form of a press release to area newspapers.
12. Council is provided with the applications for review along with a list of the applicants for
each respective authority, board and commission.
13. William Geis, father of Mark Geis, has served as an appointed member of the Altoona
City Authority since January 1998.
a. Geis was reappointed to the Authority for five year terms in 1993 and 1998.
14. In January 2003, council was provided with a list of the Talent Bank applications which
reflected William Geis as the only applicant for an upcoming vacancy to the Altoona
City Authority.
a. William Geis's term was expiring and he was seeking reappointment.
15. Three other applications were received by the City Clerks Office indicating an interest
in serving on the Altoona City Authority.
a. Application of Charles Taylor was received on October 28, 2002, but not
distributed to council because he was not a city resident.
b. The application of Dave Trexler, Jr., received 01/21/03 was given to council at
Geis 03 -015
Page 4
the January 22, 2003, council meeting.
c. The application of Gordon Condon, received 01/22/03, was distributed to
council at the January 22, 2003, council meeting.
16. The applications for Trexzler [sic] and Condon were received after the list of
applications were given to city council.
17. William Geis' Talent Bank application, dated 10/24/02, and received by the city clerk's
office on 10/25/02, listed the following information:
Occupation:
Education:
Professional/
Community Activities:
Special Interests:
References:
Mayor: The other order of business that is on our work session items,
are the appointments to the authorities, boards and
commissions. We do try to have these in place by the end of
January so these authorities board and commissions can
function with a full staff or with a full compliment of board
members. Is council ready to proceed with this work?
Hearing nobody isn't I guess we'll proceed.
Councilman Reidell: Mr. Mayor on this first one, the Altoona City Authority, we
only have on applicant, and that's an extremely important
Board. And I'm not comfortable with one applicant at this time
and I was wondering if we can table that until we can
canvass, see if we can get some interest in that authority and
possibly get some more qualified applicants in there so that
we have a choice on this.
Mark Geis: Mayor, I'm ready to move forward, and ask to be put on the
ballot for Wednesday. I mean he's my father there's no
getting around this, he served in this capacity for fifteen
years, prior to that he was on the Housing Authority's for
fifteen years, and prior to that he was on City Council for a
period of time, and I mean everyone, these things have been
advertised for probably, how long Linda has it been since this
has been on the Access Channel, Linda?
a. The only position William Geis indicated an interest in was the City Authority.
18. Geis participated in discussions relating to his father's reappointment to the Authority
prior to the vote at the January 22, 2003, regular meeting.
19. Geis' participation in the discussion to reappoint William Geis, as transcribed from the
tape of the January 20, 2003, workshop meeting, was as follows:
City Clerk Rickens:
Mark Geis:
Retired business manager Iron Workers
High school /50 years labor management experience
construction industry
Director, Altoona City Authority 15 years; Director, Altoona
Housing Authority, 15 years
Community activities /political activities
David Shields; David Halpern
I'm going to say October of 2002, is when the ad started.
Right. It's been a couple of months and I ask that it be put on
the ballot for Wednesday.
Geis 03 -015
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Councilman Reidell:
Mark Geis: I'm comfortable voting I think last, four years ago it went as
far as the State Ethics Commission and there doesn't seem
to be a problem with me voting.
Mayor: Other councilman want to address Ron's proposal and
Mark's proposal to proceed.
Councilman Fisher: I'm ready to move on, I'm ready to vote.
Councilman Hippo: I'll vote.
Mayor: I'm ready to vote to ... I'm sorry I shouldn't have said .. .
Denny are you ready to proceed?
Dennis Hallinan: Mayor I may have a conflict because Mr. Geis is my relatives
boss, so I may have a conflict, I might have to rescue myself.
Mayor: Ok. It does appear that the majority of council here tonight is
ready to proceed with it Ron. So we have one name put
forward, one name seeking the appointment. Do we express
whether we're going to vote y es or no at this time on this
appointment or does that hold until Wednesday?
Mark Geis: They used to have a consensus vote.
Councilman Reidell: I think we have a consensus of whether it was to be put
forward or not.
Mark Geis:
Mayor:
Councilman Hippo:
I'd raise the question once again. This is a paid position.
And, I know this has been asked before, but I would wonder
Mark if you wouldn't have a conflict here. He being a family
member and this being one of the only paid authorities in this,
that we have in presenting forward in your fathers . .
Like in other words, at least the ones that have more than
one, they take a consensus to see if there's four people going
to vote for .. .
Yeah, that's true.
Yeah and I also thought, wasn't there an issue in the past
thought because it's done by Resolution that any councilman
can introduce a Resolution you don't need .. .
Mark Geis: Right, even if it's not going to pass, that's true too.
(End discussion of the appointment to the Altoona City Authority)
20. At the January 22, 2003, regular meeting of Altoona City Council, City Clerk Linda
Rickens read the resolutions, which included the re- appointment of William Geis to a
five year term on the Altoona City Authority. The discussion regarding the re-
appointment of William Geis, as transcribed from the tape was as follows:
Councilman Reidell: Mr. Mayor, a couple questions on one if I may.
Mayor Martin: Certainly.
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Councilman Reidell:
Solicitor Alexander:
... (discussion on other matters took place)
City Clerk Rickens:
On item h, on Monday I questioned the ethics of Mr. Geis
voting on this item due to the fact that this is a paid position
and that this gentleman is his father. He replied with, that five
years ago, he was checked by the Ethics Committee, and he
was cleared. My question is was there a written response
from the Ethics Committee, was there a complaint sent
forward to the Ethics Committee or was this a determination
by the City Attorney?
I don't know if there was a proceeding before the Ethics
Commission. Those are beyond the scope of what I am
charged to do. I did issue an opinion as to whether Mr. Geis,
Mark could vote for his father and I found that he could based
on my research of the Ethics Opinions that have come down
and I would reinforce that tonight that he can because there
are a number of cases that have been issued by the Ethics
Commission that have found that's not a conflict of interest
he is not enriching himself so I would stand by that opinion
tonight. My opinion. Now if there was an Ethics Commission
proceeding as you referred to, I'm not aware of it.
Vote on item h, reappointing William Geis of 1106 25
Avenue, Altoona, PA, to the Altoona City Authority for a term
of five years. Said term shall expire the first Monday of
January 2008.
Fisher: Yes
Geis: Yes
Hallinan: Abstain
Hippo: Yes
Johnson: No
Reidell: No
Martin: Yes
Vote passes 4 to 2
21. Resolution No. 0013 -03 was approved by a 4/2/1 vote.
a. The motion required four votes in the affirmative to pass.
22. Geis cast the deciding vote to reappoint his father to the city authority at the January
22, 2003, council meeting.
23. City Solicitor Robert Alexander advised Geis that he could participate in the vote to
reappoint his father to the City Authority Board.
a. Alexander based his advice on the fact since Mark Geis was an emancipated
child, the immediate family provision of the Ethics Law did not apply.
1. Alexander provided his advice in 1998 and 2003.
b. Alexander did not provide his advice in writing.
c. Alexander was not aware that William Geis was receiving an additional
$1,000.00 per month as Board Liaison when he gave his advice in 2003.
Geis 03 -015
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24. Geis previously had participated in the vote to reappoint his father to the City Authority
in January 1998.
25. Minutes of the January 14, 1998, Altoona City Council meeting confirm the vote on
Resolution No. 0012 -98, reappointing William Geis to the Altoona City Authority for a
term of five years, said term to expire the first Monday of January 2003.
26. Resolution No. 0012 -98, reappointing William Geis to the Altoona City Authority
passed by a 4/3 vote with Geis casting the deciding vote.
a. Council members Wayne Hippo, Tom Shaheen and Mayor Thomas Martin
voted no because they supported another candidate.
b. Council Members Mark Geis, Dennis Hallinan, Robert Mitchell and Herbert
Wilson voted in favor of the Resolution.
27. William Geis has served as the appointed Secretary of the Authority board since 1998,
as documented in the meeting minutes of the Authority on the following dates:
January 23, 1998
January 22, 1999
February 25, 2000
January 19, 2001
February 21, 2003
a. No appointment of officers occurred in 2002.
1. Board members retained their respective positions from the previous
year.
28. Authority board appoints its members to the compensated positions of chairman, vice -
chairman, secretary, treasurer, and assistant secretary /treasurer.
a. Prior to January 2003, compensation for the officer positions was set as follows:
Chairman: $225.00 per month
Vice Chairman: $125.00 per month
Secretary: $175.00 per month
Treasurer: $700.00 per month
Asst Secretary/Treasurer: $ 75.00 per month
29. At the April 25, 2003, City Authority Board Meeting, the adoption of Resolution No. 03-
04 -243 provided a change in the board officer's compensation, as follows:
Chairman: $675.00 per quarter
Board Members: $525.00 per quarter
30. On August 17, 2001, William Geis was appointed to the position of Board Operations
Liaison for the Authority at the rate of $1,000.00 per month plus expenses.
a. William Geis abstained on the vote.
b. The position was to be temporary in nature and subject to the will of the board.
c. The position was created in response to the death of the Director of Field
Operations in June 2003.
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31. Resolution No. 01 -08 -178 approved by the Altoona City Authority on August 17, 2001,
authorized the appointment of William Geis as Board Operations Liaison.
32. Geis' participation in the vote to reappoint William Geis to the City Authority in January
2003, enabled William Geis to retain the position of Board Liaison.
a. William Geis has received compensation in the amount of $9,000.00 as Board
Liaison since his reappointment to the City Authority in January 2003.
33. Compensation paid by the City Authority to William Geis between January 1998 and
September 2003 has totaled $43,835.00.
Year
1998
1999
2000
2001
2002
2003
Total
Compensation
$2,420.00
$2,400.00
$2,360.00
$9,885.00
$15,300.00
$11,470.00
$43,835.00
a. 2003 totals reflect compensation received between January 1, 2003 and
September 30, 2003.
b. Compensation in 2001, 2002 and 2003 also includes liaison pay (See Finding
No. 25).
33. As a result of Geis' participation in the votes to reappoint his father to the Altoona City
Authority in 1998 and 2003, William Geis has received a financial gain totaling
$24,835.00.
Officer Pay
Meeting Pay
Liaison Pay
Total
$ 12,075.00
$ 1,660.00
$ 9,000.00
$ 22,735.00
Secr Meeting Liaison
yy
$2,100.00 �(��( Ex e�nses
$175/mth $2 tyq $1 $751
X60 - -
$2,100.00 $300.00 -
$2,100.00 $260.00 - -
$2,100.00 $260.00 $7,000.00 $525.00
$2,100.00 $300.00 $12,000.00 $900.00
$1,575.00 $220.00 $9,000.00 $675.00
$12,075.00 $1,660.00 $28,000.00 $2,100.00
( January 1998 — September 2003)
January 1998 — September 2003)
January — September 2003)
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Mark Geis, hereinafter Geis, 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 Geis, as a councilman for the City of Altoona, violated Section
3(a)/1103(a) of the Ethics Act when he participated in official actions as to the appointment of
his father to a compensated position with the Altoona City Authority.
Pursuant to Section 3(a)/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 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
Geis 03 -015
Page 9
himself, any member of his immediate family, or a business with which he or a member of his
immediate family is associated.
Having noted the issues and applicable law, we shall now summarize the relevant facts.
Geis has served as council member on the seven - member city board of Altoona since
1994. The city is the appointing authority for the Altoona City Authority (Authority), with
appointees holding five -year terms and receiving compensation as set by city council. When
appointments to various authorities, boards, and commissions are anticipated, the city
advertises for applications which are presented to the council members for review. Geis's
father, William, has served as an appointed member of the Authority since in 1993, with
reappointments in 1998 and 2003.
In January of 2003, council was provided with an applicants list which reflected that
William Geis was the only applicant for the upcoming vacancy on the Authority board.
Subsequently, three other applications were received by the city clerk's office from individuals
expressing an interest in serving on the Authority. Of those applications, one was not
distributed because the applicant was a non -city resident. The other two applications were
submitted to the council members. Geis participated in discussions relating to his father's
reappointment to the Authority prior to the scheduled meeting on January 22, 2003. At the
meeting, a portion of the transcribed tape reflects Geis's participation and commentary as to
his father's appointment. See, Fact Finding 19. Following discussions, a motion was made for
the reappointment of William Geis to a five -year term on the Authority which passed on a 4 -2-
1 vote with Geis casting the deciding vote. See, Fact Findings 20 -22.
The city solicitor advised Geis that he could participate as to the vote to reappoint his
father, ostensibly because Geis was an emancipated child so that the immediate family
member provision of the Ethics Act would not apply. In this regard, Geis had previously cast
the deciding vote to reappoint his father to the Authority Board in 1998.
As to the matter of compensation, the city as appointing authority sets the
compensation for Authority board members. William Geis, as an appointed officer of the
Authority in the secretary position, received compensation of $175.00 per month. On April 25,
2003, the Authority board modified officers' compensation setting the compensation for the
chairman at $675.00 per quarter and all other members at $525.00 per quarter. William Geis
was also appointed to the position of Board of Operations Liaison for the Authority at a rate of
$1,000.00 per month plus expenses. William Geis abstained on that vote. With Geis's
participation as to the vote to reappoint his father to the Authority in January of 2003, such
action ensured that William Geis would retain his position and continue to receive
compensation as Board of Operations Liaison. The compensation that William Geis received
from the Authority from January 1998 through September 2003 is delineated in Fact Finding
33. Following Geis's participation in the vote to reappoint his father to the Authority in 1998
and 2003, William Geis received a financial gain totaling $24,835.00. After, excluding
expenses of $2,100.00, the net financial gain received by William Geis was $22,735.00.
Having summarized the above relevant facts, we must now determine whether the
actions of Geis violated Section 3(a)/1103(a) of Act 9 of 1989.
Since Geis did not file an answer to the Investigative Complaint, the averments
contained therein are deemed admitted. See, Section 8(e)/1108(e) of the Ethics Act, 64 P.S.
§408(e)/65 Pa.C.S. §1108(e). The facts of record in this case establish that Geis participated
in the reappointments of his father to a compensated position on the Authority both in 1998
and 2003. The participation by Geis also included voting upon the reappointments for his
father. For the 1998 and 2003 reappointments, Geis's father was reappointed with Geis
casting the deciding votes. Such actions were uses of authority office. See, Juliante, Order
809. Pecuniary benefits were received as a result of the use of authority of office consisting
of the compensation that Geis's father received following his reappointments to the Authority.
Geis 03 -015
Page 10
But for the fact that Geis was a member of city council, he would not have been in a position to
participate, vote, and cast a deciding vote for his father's reappointment in 2003. The
pecuniary benefit inured to Geis's father who is a member of his immediate family as that term
is defined under the Ethics Act. See, Section 2/1102 of the Ethics Act, 65 P.S. § 402/65
Pa.C.S. § 1102. The pecuniary benefits to Geis's father were private because there is no
provision in law which authorizes Geis as a city council member to vote for the appointment of
an immediate family member to a compensated position. In fact, Section 1009 of the Third
Class City Code appears to expressly prohibit such action. See, 53 P.S. §36009.
We note that advice of the city solicitor was provided in 1998 and 2003. The advice
given, namely that Geis could vote for the appointment of his father to a compensated position
on the basis that Geis was an emancipated child, was in error. We are aware of Section
9(g)/1109(g) of the Ethics Act which accords an exclusion from treble damages and the
penalties imposed in Subsections (a) and (b) under very explicit and limited circumstances as
to the political subdivision solicitor vis -a -vis a written non - confidential opinion or an opinion
publicly stated at a meeting of the political subdivision. The record before us does not
establish that either of those circumstances occurred. See, Fact Finding 23. In any event,
there are no issues of treble damages or Subsections (a) and (b) penalties in this case based
upon our review of the record before us. Accordingly, Geis violated Section 3(a)/1103(a) of
the Ethics Act when he participated, voted, and cast the deciding vote to reappoint his father, a
member of his immediate family to a compensated position to the Authority. See, Holvey,
Order 1039, reversed and remanded on other grounds Holvey v. SEC, unreported opinion of
Commonwealth Court filed at No. 815 C.D. 1998 on February 3, 1998.
Section 407(13)/1107(13 of the Ethics Act empowers this Commission to impose
restitution in instances where a public official /public employee has obtained a financial gain in
violation of the Ethics Act. However, given the unique factual circumstances of the instant
matter, we in the exercise of our discretion shall not impose an order for restitution for this
particular violation. We, however, impress upon Geis that he is a public official and that public
office is a public trust. Accordingly, as to any future actions having a financial impact upon
Geis, a member of his immediate family, or a business with which he or a member of his
immediate family is associated, we caution Geis that he must exercise diligence /care so that in
such instances of a conflict of interest, he must not participate, and must observe the
disclosure requirements of Section 3(j)/1103) of the Ethics Act. We specifically remind Geis
that as to matters that financially impact upon his father, Geis has a conflict, and must likewise
abstain and observe the disclosure requirements as required by Section 3(j)/1103(j) of the
Ethics Act. Geis in his future conduct must comport his actions to both the letter and spirit of
the Ethics Act. It would be well for Geis to heed our warning, given our power to refer matters
for criminal prosecution or impose treble penalty /restitution.
IV. CONCLUSIONS OF LAW:
1. Mark Geis, as a member of the Altoona City Council, is a public official subject to the
provisions of Act 9 of 1989 as codified by Act 93 of 1998.
2. Mark Geis violated Section 3(a)/1103(a) of the Ethics Act when he participated, voted,
and cast the deciding vote in 2003 to reappoint his father, a member of his immediate
family, to a compensated position on the Altoona City Authority.
In Re: Mark Geis
ORDER NO. 1298
File Docket: 03 -015
Date Decided: 12/1/03
Date Mailed: 12/15/03
1. Mark Geis, as a member of the Altoona City Council, violated Section 3(a)/1103(a) of
the Ethics Act when he participated, voted, and cast the deciding vote in 2003 to
reappoint his father, a member of his immediate family to a compensated position on
the Altoona City Authority.
BY THE COMMISSION,
Louis W. Fryman, Chair