HomeMy WebLinkAbout1302 PayneIn Re: John Payne
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 -005
Order No. 1302
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 waived. The record is complete. A Consent
Agreement and Stipulation of Findings were submitted by the parties to the Commission for
consideration. The Stipulation of Findings is quoted as the Findings in this Order. The
Consent Agreement was subsequently approved.
Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11
of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and
provides for the completion of pending matters under Act 93 of 1998.
This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and
will be made available as a public document thirty days after the mailing date noted above.
However, reconsideration may be requested. Any reconsideration request must be received at
this Commission within thirty days of the mailing date and must include a detailed explanation
of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §
21.29(b). A request for reconsideration will not affect the finality of this adjudication but will
defer its public release pending action on the request by the Commission.
The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of
1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor
subject to a fine of not more than $1,000 or imprisonment for not more than one year.
Confidentiality does not preclude discussing this case with an attorney at law.
Payne 03 -005
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I. ALLEGATION:
That John Payne, a ublic official in his capacity as a Commissioner for Dauphin
County violated provisions of the State Ethics Act (Act 93 of 1998, 65 Pa.C.S. §1101 et seq.)
when he used the authority of his office for a private pecuniary gain by submitting and
receiving expense reimbursement for travel in relation to conferences which included
expenses of a personal nature.
II. FINDINGS:
1. John D. Payne served as a Dauphin County Commissioner from January 2000
through December 2002.
a. Payne sat as the Chairman of the board during his tenure in the position.
b. Payne resigned effective December 31, 2002 to accept the position of State
Representative for the 106 al District.
2. When traveling as a Dauphin County Commissioner, Payne followed travel policies
established in county personnel manuals.
3. Dauphin County Personnel Policies, "Chapter 10: Travel Policies," outlines procedures
to follow when traveling on official business.
4. Chapter 10: Travel Policies specifically sets forth regulations regarding transportation
while in travel status.
a. Travel policies set forth authorize all modes of transportation if they are
consistent with the requirements of the assignment and the efficient and
economic conduct of official business.
b. Noted in the transportation section is, "All travel shall be by the most direct
route."
c. Additionally noted is, "Local transportation, such as taxicabs, airport limousines,
car rentals, etc. are allowed when justified by the travel assignment."
5. Individuals subject to the travel policies include employees under the commissioners
and other elected county officials' jurisdiction with the exception of non -paid members
of boards, commissions, and committees.
a. Specifically noted in the policy is, "Travel Policy: The Commissioners retain the
right to waive any and all provisions herein."
6. Spousal accompaniment to county related events is an accepted practice in Dauphin
County although not specifically addressed in the Travel Policy.
a. Spouses are permitted to accompany county representatives provided that all
expenses associated with spousal travel are paid for personally.
b. Spouses are not permitted to travel at the county's expense.
7. During or about 2000, Dauphin County named Omega Travel as the county's official
travel agent.
8. The National Association of Counties annually holds a conference in different
locations.
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a. The purpose of the conference is to provide county officials with the opportunity
to set legislative policy, elect new officers, hear presentations by noted
speakers, network with other county officials, and participate in workshops on
issues affecting their counties.
9. Dauphin County received a convention itinerary for the 2000 National Association of
Counties Conference via the United States Postal Service during or about April 2000.
a. The 2000 convention was scheduled at the Hilton Charlotte & Towers,
Charlotte, North Carolina, from July 12, 2000 through July 20, 2000.
b. Guest room rates were documented on the resume.
1. The single room rate was $132.00 per night.
2. The double room rate was $152.00 per night.
10. On April 27, 2000, a Request to Attend Meeting /Conferences/Training was complete
for Commissioners Payne, Lowman Henry, and Anthony Petrucci to attend the 65
Annual National Association of Counties Conference & Exposition in Charlotte, NC.
a. The date of the event was noted as July 14 -18, 2000 on the request.
b. Payne's signature appeared on the form approving the request.
c. The request was approved by the commissioners at the May 9, 2000,
commissioners' meeting.
11. The services of Omega Travel were utilized to book round trip airline reservations for
himself and his spouse to and from North Carolina.
a. Payne informed Nye that he wished to depart on July 12, 2000, and return on
July 19, 2000.
1. Payne wanted to leave two days prior to the date documented on the
travel request and the start of the conference.
b. Payne informed Nye that he wished to fly into Raleigh /Durham Airport in
Raleigh, North Carolina, rather than the conference cite in Charlotte.
12. On May 9, 2000, Payne's airline tickets, as well as the tickets for Payne's wife, were
charged to the county credit card issued to Robert Burns, Chief Clerk of Dauphin
County.
a. Burns' credit card was used because Payne had not yet been issued a county
credit card.
1. Payne was issued a county credit card on or after May 12, 2000.
13. Prior to Payne's scheduled attendance at the 2000 Conference, Payne had been
interested in the possibility of bringing a Krispy Kreme franchise to Dauphin County.
a. Payne's interest in economic development through Krispy Kreme dated back to
at least 1999 when Payne served as a Supervisor for Derry Township, Dauphin
County.
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14. Prior to his attendance at the 2000 Conference, Payne requested that Dan Robinson,
Director - Dauphin County Economic Development Corporation, provide him with
demographics and other information on Dauphin County.
a. Robinson was aware of Payne's interest in bringing Krispy Kreme to Dauphin
County.
b. Payne informed Robinson of
representative while in North Ca
15. Krispy Kreme Doughnut Corporation
Carolina.
his intent to meet with a Krispy Kreme
rolina.
is headquartered in Winston - Salem, North
a. All franchise inquires regarding Krispy Kreme must be directed to the franchise
department in the corporate office.
16. Thomas Brogan is an attorney with the law firm Klett, Rooney, Lieber & Schorling.
a. Brogan's firm was retained as Special Counsel for the county commissioners
from approximately January 2000 through December 2002.
b. Brogan was familiar with Payne prior to being retained by the county
1. Brogan and Payne served together for several years on the Derry
Township Municipal Authority.
c. Brogan was aware of Payne's interest in bringing a Krispy Kreme store to the
Dauphin County area as a result of conversations held with Payne prior to
Payne's election as a county commissioner.
d. Brogan had frequent interaction /conversations with Payne at the county offices
due to his position as special counsel and at various Derry Township Municipal
Authority meetings.
1. Payne informed Brogan that he would be in the Krispy Kreme
headquarters area while in North Carolina and informed Brogan of his
desire to see a company representative while he was there for the
conference.
17. Payne traveled via US Airways, Flight Number 1875 to Charlotte, North Carolina, on
July 12, 2000.
a. Payne did not depart the airplane in Charlotte.
b. Payne continued on to Raleigh /Durham Airport via US Airways Flight 1751.
18. Upon arrival at Raleigh /Durham Airport, Payne obtained a rental vehicle through Dollar
Rent -A -Car.
a. Nye had arranged for the rental of the vehicle through Omega Travel while
securing Payne's airline reservations.
19. Payne did not utilize Omega Travel to secure lodging for the nights of July 12 -13,
2000.
20. In a sworn statement rovided to Commission representatives on April 17, 2003,
Payne stated that his departure two days in advance of his scheduled attendance at
the conference was related to county business.
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a. Payne stated that his intent was to make a cold call at the headquarters of
Krispy Kreme, speak with a representative of that company, and do an event
with a company executive the following day for the purpose of enticing Krispy
Kreme to Dauphin County.
21. Payne stated that he traveled to a Krispy Kreme location near Raleigh /Durham and
attempted to meet with a company representative upon arrival in Raleigh /Durham.
a. Payne stated that he discovered upon arrival at the location that it was not the
headquarters location.
b. Payne traveled to the location without a scheduled appointment.
c. Payne traveled to the location without a contact /representative name to request
to meet with.
d. Payne did not meet with any company representatives because Payne was not
at the correct location and because Krispy Kreme would not meet with any
visitors without an appointment.
22. Payne did not advise the other members of the board of his plan to try and meet with
Krispy Kreme executives.
23. As a result of Payne's failure to meet with any company executives, Payne and his
spouse utilized the remainder of July 12 -13, 2000 for personal business in North
Carolina, including golfing and shopping at various locations.
24. On July 14, 2000, Payne and his spouse checked in to the Hilton Charlotte and
Towers for the 2000 Conference.
25. From July 14, 2000, through July 19, 2000, Payne incurred charges totaling $1,004.28
at the hotel including lodging, meals, phone calls, tax, and parking.
a. Of that amount, $855.00 had been prepaid on June 13, 2000, with check
number 35623 from Dauphin County.
b. Payne paid the $149.28 balance with his county issued credit card.
26. Upon checking out from the hotel on July 19, 2000, Payne and his spouse drove back
to Raleigh /Durham airport where Payne was charged a total of $404.43 for use of the
rental vehicle as shown below:
1 Weeks Rental
Extra fee
Fuel, Various Taxes, Etc.
$279.99
19.00
105.44
Total $404.43
a. Payne was entitled to unlimited mileage with the rental.
b. Payne was charged an extra $19.00 fee as a result of the vehicle being
returned approximately one -hour late.
c. Payne paid the $404.43 balance with his county issued credit card.
27. Payne's wife, Debra, reimbursed the county for the cost of her airfare for the trip to
North Carolina, on or about August 13, 2000, by issuing a personal check in an
Payne 03 -005
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amount of $185.00.
28. After returning from the 2000 Conference, Payne's county issued credit card
statement was received at the county offices and forwarded to the controller's office for
processing and payment.
a. Expenses associated with the 2000 Conference totaled $553.71 were billed to
the account.
29. On August 14, 2000, Gary Serhan, Chief Deputy Controller, authored correspondence
to Julia Nace, Assistant Chief County Administrator, requesting written justification for
the rental car fee.
a. Although Serhan requested written justification, the controller's office paid the
entire balance of Payne's bill on August 17, 2000, to avoid incurring late fees.
30. On August 22, 2000, Robert Burns, Chief Clerk, notified the controller's office in
writing that Payne rented the vehicle to enable him to travel during the conference.
31. The controller's office subsequently sent correspondence dated August 24, 2000, to
Burn's questioning not only expenses associated with Payne's rental of the vehicle but
with Payne's lodging as well.
a. The controller's office questioned the fact that Payne's hotel folio showed the
double occupancy rate as opposed to the single rate.
b. The price differential between single and double occupancy was $22.50 per
night including tax.
c. The total price differential spanning Payne's stay at the hotel totaled $112.50.
32. Payne responded to the question raised by the controller's office via correspondence
dated October 23, 2000.
Payne noted that flying to Raleigh /Durham Airport resulted in round trip savings
of approximately $80.00 to the county as opposed to flying directly to Charlotte.
Payne stated that he did not know a differential existed in room prices between
single and double occupancy.
33. In order to resolve the situation, Payne issued a personal check dated October 22,
2000, to Dauphin County in the amount of $112.50 for the differential expense of the
room.
a.
b.
34. Although Payne reimbursed the county for the room price differential, the controller's
office again questioned the vehicle rental by Payne while in North Carolina.
35. Payne authored correspondence to the controller's office dated August 17, 2001,
addressing the rental vehicle fees.
36. The correspondence authored by Payne addressed an attempt to visit a company
headquartered near Raleigh /Durham and obtain information and begin discussions to
attempt to persuade the company to open a business within Dauphin County.
a. Payne noted that initially his visit did not appear to lead to the desired results.
b. As a result of the poor initial visit, Payne paid for his hotel, subsistence, and gas
Payne 03 -005
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expenses personally.
c. Payne did not disclose the identity of the company as Krispy Kreme in the
correspondence.
37. Payne enclosed a personal check in the amount of $50.00 to cover a portion of the
cost of renting the car.
38. The exact cost for a one -day rental of the vehicle could not be determined.
a. Dollar Rent -A -Car could not positively research rental fees in effect beyond a
one -year time period.
b. The cost of a one day rental in July 2000 was estimated by Dollar Rent -A -Car
at $40.00 - $50.00.
39. The car rental by Payne was utilized mainly for personal use by Payne and his spouse
on July 12 -13 after he was unsuccessful at obtaining a meeting with a Krispy Kreme
representative because during the conference, others provided Payne transportation to
events and meals.
40. Payne did not know before arriving at the conference that he would not need
transportation.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, John Payne, hereinafter Payne,
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 Payne, as a Dauphin County Commissioner, violated Section
1103(a) of the Ethics Act when he submitted and received expense reimbursements for travel
in relation to a conference which included expenses of a personal nature.
Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is
prohibited from engaging in conduct that constitutes a conflict of interest.
The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows:
Section 1102. Definitions
"Conflict" or "conflict of interest." Use by a public official
or public employee of the authority of his office or employment or
any confidential information received through his holding public
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.
Payne 03 -005
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65 Pa.C.S. § 1102.
Section 1103(a) of the Ethics Act prohibits a public official /public employee from using
the authority of public office /employment or confidential information received by holding such a
public position for the private pecuniary benefit of the public official /public employee himself,
any member of his immediate family, or a business with which he or a member of his
immediate family is associated.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are reproduced above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
Payne served as a Dauphin County Commissioner from January 2000 through
December 2002. While traveling as a Dauphin County Commissioner, Payne was subject to
the policies set forth in the county personnel manuals. The county travel policies provide in
part that: travel must be by the most direct route; local transportation is allowable when
justified by the travel assignment; and spousal travel is not a county but a personal expense.
When the National Association of Counties 2000 Convention was held in Charlotte,
North Carolina in July 2000, the daily room rates at the Hilton Charlotte and Towers were
$132 for singles and $152 for double rooms. Although the official dates of the events were
between July 14 -18, 2000, Payne directed Omega Travel, the county's official travel agent, to
book roundtrip airline reservations for him and his spouse departing on July 12 and returning
on July 19, 2000. In addition, Payne directed that the flight be booked to Raleigh- Durham
Airport in Raleigh rather than at the conference site in Charlotte. Payne's airline tickets were
charged to the credit card of the Chief Clerk of Dauphin County in that Payne had not yet
received his county credit card.
Prior to attending the National County Commissioners Conference, Payne had an
interest in bringing the Krispy Kreme franchise into Dauphin County. Payne requested the
Dauphin County Director of Economic Development to provide him with demographics and
other information on Dauphin County prior to his attendance at the conference. Krispy Kreme
is headquartered in Winston - Salem, North Carolina, not Raleigh- Durham or Charlotte.
When Payne and his spouse arrived at Raleigh- Durham Airport, he obtained a rental
vehicle arranged through Omega Travel. In a sworn statement, Payne stated that he went to a
Krispy Kreme location near Raleigh- Durham in an attempt to meet a company representative
and then discovered that Krispy Kreme had no headquarters there. Payne did not meet with a
representative of Krispy Kreme because he did not go to the correct location. In any event,
Krispy Kreme does not meet with visitors without an appointment. Payne had not advised the
other two members of the county board of his plans regarding Krispy Kreme. Payne and his
spouse utilized the remainder of the two days for personal matters such as golfing and
shopping at various locations.
Payne and his spouse checked in at the Hilton Charlotte and Towers on July 14, 2000.
From July 14 through July 19, Payne incurred charges totaling $1,004.28 for lodging, meals,
phone calls, tax and parking. Since $855.00 had been prepaid by the county, Payne paid the
balance of $149.28 on his county issued credit card. Payne was charged $404.33 for his
rental car based upon one week rental of $279.99, a $19.00 late fee, and fuel, taxes and other
charges amounting to $105.44. Payne also paid that amount on his county credit card.
Payne's spouse reimbursed the county for the cost of her airfare to North Carolina by
issuing a check in the amount of $185.00. The county controller's office questioned not only
expenses associated with Payne's rental of the vehicle but with his lodging as well. As to the
hotel, the controller noted that there was an additional daily charge of $22.50 for a double
room which totaled $112.50 for Payne's entire stay. Payne issued a personal check to
Dauphin County in the amount of $112.50 for the differential expense of the lodging. As to
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Page 9
the rental vehicle, Payne wrote a letter wherein he stated that he attempted to persuade a
company to open a business in Dauphin County. As to the rental of the vehicle, Payne issued
a personal check in the amount of $50.00 to cover a portion of the cost of renting the vehicle.
The car rental business estimated that the cost of a rental would be $40 to $50 per day.
Having highlighted the Stipulated Findings and issues before us, we shall now apply
the Ethics Act to determine the proper disposition of this case.
The parties' Consent Agreement sets forth a proposed resolution of the allegations: no
violation of Section 1103(a) of the Public Official and Employee Ethics Law when Payne
submitted and received travel expense reimbursements from the county due to the fact that
reimbursement was subsequently made to the county for any excess amounts received.
In applying Section 1103(a) of the Ethics Act to the instant matter, there were uses of
authority of office by Payne as to the national county conference. But for the fact that Payne
was a county commissioner, he could not have gone to the county conference in North
Carolina with his spouse, had the county prepay certain expenses as to lodging and travel,
and receive reimbursement for various expenses. Further, the additional expenses of staying
in a double room with his spouse and usage of the rental vehicle part of the time for personal
purposes constituted private pecuniary benefits to Payne and his spouse. Such definitive
excess expenses, the charges for the double room and rental vehicle, were returned to the
county. However, it is for all practical purposes impossible to discern exactly what were
governmental as opposed to personal expenses, given that Payne not only attended the
conference but also attempted to contact Krispy Kreme for the purpose of obtaining franchises
in Dauphin County. See, Maduka, Order 1277. Based upon the foregoing, the Investigative
Division, through the exercise of prosecutorial discretion, has determined that Payne's actions
do not constitute a violation of Section 1103(a). While the elements for a conflict exist in this
case, given the impossibility of distinguishing between the governmental and personal
expenses, given the evidentiary standard of clear and convincing proof, given the Investigative
Division's non -pros, and given the relatively small amount of money involved, we accept the
consent agreement. Accordingly, Payne did not violate Section 1103(a) of the Ethics Act as
to the return of excess amounts he received in travel expenses for a national county
conference, based upon a non pros of the Investigative Division.
IV. CONCLUSIONS OF LAW:
1. John Payne, as a Dauphin County Commissioner, is a public official subject to the
provisions of Act 9 of 1989 as codified by Act 93 of 1998.
2. Payne did not violate Section 1103(a) of the Ethics Act as to the return of the excess
amount he received in travel expenses as to a national county conference, based upon
a non pros by the Investigative Division.
In Re: John Payne
ORDER NO. 1302
File Docket: 03 -005
Date Decided: 12/1/03
Date Mailed: 12/15/03
1. John Payne, as a Dauphin County Commissioner, did not violate Section 1103(a) of
the Ethics Act as to the return of the excess amount he received in travel expenses as
to a national county conference, based upon a non pros by the Investigative Division.
BY THE COMMISSION,
Louis W. Fryman, Chair