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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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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 Page 2 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 Page 3 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 Page 5 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. Geis 03 -015 Page 6 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 Page 7 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. Geis 03 -015 Page 8 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