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HomeMy WebLinkAbout1304 StonerIn Re: Barbara Stoner 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- 005 -C2 Order No. 1304 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 filed and a hearing was waived. 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Stoner 02- 005 -C2 Page 2 I. ALLEGATION: That Barbara Stoner, a (public official /public employee) in her capacity as a Supervisor and Manager for East Donegal Township, Lancaster County, violated Section 1103(a) and 1104(a) of the Public Official and Employee Ethics Law (65 Pa.C.S. §1101 et seq.), when as a township supervisor she used the authority of her office for the private pecuniary benefit of herself and /or members of her immediate family, including but not limited to participating in actions of the board of supervisors resulting in the appointment of her husband, Barry Stoner, as township roadmaster and subsequently set and voted on his compensation; hiring and /or placing her children on the township payroll; when she authorized and approved overtime payments to her husband; when she approved payroll and /or signed checks issued to her husband and children; when she submitted overtime hours on township payroll lists and received overtime compensation as secretary /treasurer from 1997 through 1999 without auditor approval; when she failed to file a Statement of Financial Interests for the 1999 calendar year by May 1, 2000; and when as township manager she prepared budgets with recommendations for salaries for her husband; when she authorized her children to be employed by the township without a vote of the board of supervisors; when she set the salaries of her children; and when she submitted payroll information authorizing payments for her husband and children. II. FINDINGS: 1. Barbara Stoner has served as the manager of East Donegal Township, Lancaster County, since July 13, 2000. a. Stoner held the position of secretary and treasurer to the board and secretary from January 1, 2000, to July 13, 2000. 2. Stoner served as an East Donegal Township Supervisor from September 1988, to December 31, 1999. a. Stoner annually served as the appointed secretary and treasurer to the East Donegal Township Board of Supervisors from September 8, 1988, until leaving office on December 31, 1999. b. Stoner also held the position of township secretary from 1973 until September 8, 1988. 3. East Donegal Township maintains a job description for the position as township manager which was adopted February 10, 2000, by Ordinance No. 2000 -1, approved by the township board of supervisors. a. The job description for township manager noted that the manager shall be the chief administrative officer of the township responsible to the board of supervisors with the following duties and responsibilities: 1. Prepare and submit to the supervisors, before the close of each fiscal year, a budget for the following fiscal year and an explanatory budget message. 2. Prepare and submit to the supervisors, as soon as possible after the close of each fiscal year, a report on the Township finances for the preceding fiscal year and such other matters as requested by the Supervisors from time to time. 3. Be responsible for the administration of the budget after its adoption by the Supervisors. Stoner 02- 005 -C2 Page 3 4. In conjunction with the preparation of the yearly budget, develop long - range fiscal plans for the Township, such lans to be presented annually to the Supervisors for their review and adoption. 5. Supervise and be responsible for the activities of all municipal departments and department heads in the administration of their departments, except as otherwise provided by law. 6. Hire, appoint, suspend, or remove all Township employees and all department heads, with the advice and consent of the Supervisors, except as otherwise provided by law or collective bargaining agreements. The Manager may authorize any department head to exercise such policies or powers with respect to his or her subordinates, provided that any such authorized exercise shall be subject to the Manager's supervision, review and modification. 7. Hold such other municipal offices and positions and head such municipal departments as the Supervisors may from time to time direct. 8. Attend all meetings of the Supervisors and their committees, with the right to participate in the discussions, and to receive notice of all special meetings of the supervisors and its committees, but with no voting power. 9. Attend all meetings of the supervisors and their committees, with the right to participate in the discussions, and to receive notice of all special meetings of the supervisors and its committees, but with no voting power. 10. Attend all meetings of the Township Planning Commission and any other meetings that may be assigned by the supervisors or otherwise deemed necessary from time to time. 11. Prepare the agenda for each meeting of the supervisors and supply facts pertinent thereto. 12. Keep the supervisors informed as to the conduct of township affairs, submitting periodic reports on the condition of the Township finances and such other reports as the supervisors request from time to time, and make such other recommendations to the supervisors as the Manager deems advisable. 13. Ensure that the provisions of all ordinances, leases, permits and privileges granted by the Township are observed, and be responsible for the enforcement of all Township ordinances and regulations that by statute or ordinance are not to be enforced by other officials, employees or persons. 14. Employ, subject to the approval of the Supervisors, experts and consultants to perform work, issuing the appropriate checks and reports as required by federal, state and local laws. 15. Provided for the letting of contracts in due form of law, and supervise the performance and faithful execution of same, except insofar as such duties are expressly imposed by statute upon some other township officer. Stoner 02- 005 -C2 Page 4 16. Take such actions as are necessary so that money owed the Township is promptly paid and that proper proceedings are taken for the security and collection of all the township's claims. 17. Acts as the purchasing officer of the township, purchasing supplies and equipment for the township and its various departments, agencies, boards and officers in accordance with applicable law. Any purchases and contracts required to be advertised by the Second Class Township Code or other law shall not be made or executed without the prior approval of a majority of the supervisors. 18. Review all invoices received by the township and process for payment when found to be in order. 19. Review all complaints regarding township services and employees. The manager or the person designated by him or her shall investigate and dispose of such complaints and report them to the supervisors or appropriate department heads. If a complaint involves the police department serving the township, the manager also shall refer the complaint to the chief of police, who shall perform a separate investigation and submit a written report to the supervisors. 20. Answer all general correspondence addressed to the supervisors, but only with supervisor's approval. 21. Maintain a high level of public relations for all elements of the township government including, but not limited to, periodic reports and other information that may be directed by the supervisors from time to time. 22. Administer project submissions, review processes, and schedules of the township's various subdivision and land use ordinances, coordinating with the appropriate boards and responsible agencies at township and county levels. 23. Perform such other duties as may be directed by the supervisors from time to time. 5. Barbara Stoner entered into an employment agreement with East Donegal Township to serve as manager on June 14, 2000. 6. Stoner's duties and responsibilities as township manager are similar to those Stoner performed as township secretary /treasurer from 1988 through 1999. a. As manager, Stoner cannot vote on matters before the board and does not have signature authority on township bank accounts. 1. The lack of signature on the township accounts was at Barbara Stoner's request. 7. In her capacity as township secretary /treasurer and township manager Barbara Stoner has been a full -time employee of the township. a. As secretary /treasurer, Stoner's salary was set by the township board of auditors. b. Stoner's salary as manager is set by the board of supervisors. 8. Barbara Stoner's salary as township manager has been set by the board of supervisors Stoner 02- 005 -C2 Page 5 as follows: a. 2000: $49,999.99 2001: $53,000.00. 9. Stoner's salary as secretary /treasurer of East Donegal Township was set by the township auditors during annual reorganization meetings as follows: 01/02/97 $38,000.00 01/02/98 $39,000.00 01/02/99 $42,500.00 10. Barbara Stoner also received meeting pay in her capacity as a township supervisor for the years 1997 through 1999 as follows: 1997 1998 1999 $1,500.00 $1,500.00 $1,500.00 11. As secretary /treasurer and township manager, Stoner's regular work hours have been 8:00 a.m. to 4:00 p.m. Monday through Thursday with % hour for lunch and Friday from 8:00 a.m. to 12:00 p.m. a. Stoner is required to work a minimum of 36 hours each week. b. Stoner routinely works in excess of the minimum hours set by the board of supervisors. c. Generally, Barbara Stoner worked through her 1/2 hour lunch period. 12. Barbara Stoner's duties as secretary /treasurer included responsibility for preparation of payroll information for all township employees. a. Stoner, as secretary- treasurer, was the official record keeper and one of the payroll processing administrators for East Donegal Township included documenting hours worked by employees and submitting payroll information to a private company for processing. b. Stoner was delegated this responsibility by the remaining members of the board of supervisors. c. Actions taken by Stoner, in this capacity, were at least verbally approved by members of the board of supervisors. 13. Since July 1995 East Donegal Township has utilized the services of White & Company to process employee payroll and prepare checks. a. White and Company representatives deal with Barbara Stoner regarding payroll matters. 1. On occasion, Deborah Reem, an assistant to Barbara Stoner, has been the contact person with White & Company. 14. The process utilized by East Donegal Township when providing White and Company payroll information is as follows: a. White and Company will receive documentation from Barbara Stoner or Deborah Reem at the beginning of each year confirming the wages and salaries Stoner 02- 005 -C2 Page 6 1997: 56.5 1998: 67.0 that are to be paid to employees of East Donegal Township. 1. This includes full -time and part -time employees. b. White and Company will receive faxed time sheets bi- weekly from Barbara Stoner, or a township designee, traditionally the Monday morning of a pay week with each employees' hours including any overtime hours. c. White and Company will take the hours worked by township employees, and utilizing the wage figures submitted to them and prepare the payroll figures. d. White and Company employees prepare payroll checks, which would be picked up at White and Company Offices usually by a police officer from Susquehanna Regional Police Department, formerly East Donegal Police Department. e. White and Company currently has East Donegal Township employees set up with direct deposit, so no physical checks are presented to employees. 1. Deposits Advices are now issued to employees. 2. All East Donegal Township employees' payroll checks are directly deposited in their respective accounts. 15. From 1997 through 1999, while serving as township secretary /treasurer, Barbara Stoner received overtime payments for hours worked. a. Board Members Keith Heigel and Allen Esbenshade were aware that Barbara Stoner was working in excess of her normal work hours at the direction of the board of supervisors and believed she was entitled to overtime compensation. b. Barbara Stoner did not claim overtime hours every pay period. 16. From late 1996 until 1998 the township was renovating and building an addition to the township municipal building. a. The majority of overtime hours worked by Barbara Stoner during this time period was in relation to this project. 17. From January 1997 through December 1999 payroll submitted to White & Company included overtime hours for Barbara Stoner as secretary /treasurer for processing as part of the bi- weekly payroll. a. Board members Heigel and Esbenshade gave verbal approvals for the submission of payroll which included overtime hours. 18. The annual salaries approved by the township auditors in 1997, 1998 and 1999 did not include overtime payments for the position of township secretary /treasurer. a. Barbara Stoner contends the township auditors were aware of Barbara Stoner's receipt of overtime and voiced no objections. 19. Overtime hours for Barbara Stoner submitted to White & Company as part of payroll processing totaled as follows: Stoner 02- 005 -C2 Page 7 1999: 35.0 20. As township supervisor, Barbara Stoner had signature authority on all township bank accounts, including payroll. a. All three supervisors have signature authority. b. Checks being issued required the signature of two township supervisors. c. Stoner regularly signed payroll checks in 1997. 21. The process of the supervisors signing payroll checks was stopped in June 1997 when the township went to direct deposit of employee paychecks. 22. Barbara Stoner signed eight checks issued to her between January 25, 1997, and May 31, 1997, which included compensation for forty -four (44) overtime hours. a. Any other payments during the period 1997 through 1999 were direct deposited to Barbara Stoner's personal account as part of her bi- weekly pay. b. All checks were signed by at least one other township supervisor. 23. The East Donegal Township Board of Supervisors did not formally approve payrolls during the period from January 1997 through 2001. a. Payroll has not been submitted for approval as part of any expenditure list to be approved during a public meeting of the board of supervisors. b. The board of supervisors did not believe that payroll was required to be approved by vote at a township meeting. 24. From June 1997 through December 1999, Barbara Stoner and Deb Reem on occasion, would prepare and review the payroll sheets and provide the hours to White and Company as the basis for paychecks to be issued to each employee. 25. W -2 Wage and Tax Statements for Barbara Stoner confirm the following earnings from 1997 through 1999 as follows: a. 1997: $41,261.64 b. 1998: $41,153.58 c. 1999: $45,101.11 d. These earnings include longevity pay. 26. Barbara Stoner's overtime compensation was not set by the township auditors. a. The auditors did not contest overtime compensation paid to Barbara Stoner when conducting annual audits of the township accounts. b. Barbara Stoner contends the auditors were aware she was receiving overtime compensation and voiced no objection. 27. The remaining members of the board of supervisors were aware that Barbara Stoner was receiving overtime payments as township secretary /treasurer. a. Board members Allen Esbenshade, Keith Heigel and former member Luke Stoner 02- 005 -C2 Page 8 Brubaker believed she was entitled to the payments. 28. Barbara Stoner is married to Barry Stoner. a. The Stoner's have three children; Tamela Barrick, Tiffany Stoner and Timothy Stoner. 29. Barry Stoner was appointed as roadmaster by vote of East Donegal Township Supervisors on April 13, 1989, and began working on April 24, 1989. a. Barbara Stoner was an East Donegal Township Supervisor at the time of Barry Stoner's appointment as roadmaster, but abstained from the vote to appoint Barry Stoner as roadmaster. 30. Barry Stoner generally sets his working schedule and decides on a daily to weekly basis what work he will perform for the township as roadmaster. a. Barry Stoner receives work directives from Allen Esbenshade, Supervisor, and also receives work directives from his wife, Barbara Stoner, in her capacity as township manager. 1. Directives are received from Barbara Stoner are as a result to constituent complaints and /or requests for road service. b. Barbara Stoner's job description as township manager gives her supervisory authority over Barry Stoner as roadmaster. 31. Barry Stoner's salary is set when the budget of the Public Works, Highways and Roads, Bridges and Streets is approved by the board of supervisors. a. The budget for the highway department is annually set when the board of supervisors approve the overall township budget. 1. Budget figures for the highway department, including the amount of salary for Barry Stoner, have been initially prepared by Barbara Stoner, with the assistance of Deb Reem, in both her capacity as secretary /treasurer and manager. 32. Barbara Stoner, with the assistance of Deb Reem, itemizes, projects, and prepares the budget of East Donegal Township. a. Stoner, with the assistance of Deb Reem, initially has performed this task as township secretary /treasurer (1997 through 1999), and as manager (2000 to present). b. Barbara Stoner, with the assistance of Deb Reem, initially calculates budget totals by Department, and allocates funds to each Department based on the previous year budget. c. Barbara Stoner, with the assistance of Deb Reem, initially budgets funds for the Public Works, Highways, Roads, Bridge and Streets Department which includes salaries of all road employees, including Barry Stoner. d. As secretary /treasurer and manager, Barbara Stoner, at the discretion of the board of supervisors, and with the assistance of Deb Reem, initially has prepared annual salaries for all employees, including Barry Stoner, and submitted those as part of her budget calculations. Stoner 02- 005 -C2 Page 9 33. The draft budgets prepared by Barbara Stoner with the assistance of Deb Reem, are reviewed and revised by the board of supervisors during work sessions. a. Barbara Stoner has attended those work sessions as both supervisor/ secretary /treasurer and manager. b. Stoner participated in budget reviews, including setting rates of pay for employees. c. Barbara Stoner contends that she did not participate in any discussions that included the setting of Barry Stoner's salary. 34. As a township supervisor, Barbara Stoner participated in votes of the board of supervisors to approve budgets, which included the salary of Barry Stoner. Budget Year Adoption Dates Official Action by Stoner 1997 Budget Adopted 12/12/96 No formal vote 1998 Budget Adopted 12/11/97 Motion to AdoptNote 1999 Budget Adopted 12/10/98 Motion to AdoptNote 2000 Budget Adopted 12/09/99 Motion to AdoptNote a. On each occasion a unanimous vote of all three supervisors occurred. 35. Barry Stoner's salary as roadmaster as set by the Board of Supervisors when approving budget is as follows: 1997 1998 1999 2000 2001 $35,509.36 or $17.07 per hour $36,574.88 or $17.58 per hour $37,874.58 or $18.20 per hour $38,632.07 or $18.57 per hour $39,811.20 or $19.14 per hour 36. Since at least 1997, Barry Stoner has worked overtime hours for which he has been compensated at the rate of time and one -half. a. The board of supervisors have been aware of Barry Stoner working overtime hours. b. Barry Stoner received informal approval to work overtime hours in 1997 and 1998 when the township was renovating the municipal building. 1. The township provided the bulk of the labor toward this project. c. Prior to 2000, overtime was approved by Allen Esbenshade, Chairman of the Road Department "after the fact." 1. On some occasions, prior notice to work overtime was provided by Barry Stoner to Mr. Esbenshade. d. Beginning in 2000, Supervisor Dennis Drager began approving time sheets of Barry Stoner, which included overtime hours. e. Prior to 2000, Barry Stoner did not maintain time sheets, daily work logs, overtime logs to confirm projects worked and explanations for overtime hours. 1. These were not required to be maintained by the board of supervisors. 2. Barry Stoner maintained his hours individually on a separate calendar. Stoner 02- 005 -C2 Page 10 37. Prior to January 1, 1999, no formal policy was in place regarding overtime for East Donegal Township employees. 38. The board of supervisors approved an employee manual on January 14, 1999, which set forth a policy for overtime in Section 3.4 as follows: "All employees receive their regular rate of pay for all hours worked in a week up to and including forty (40) hours. However, if the need arises, all salaried, and non - salaried employees are eligible for overtime rates of pay. The overtime rate of pay is 1.5 times the base hourly and is paid for hours worked in excess of 40 hours Road Department and 34 [sic] hours Office Department in any one work week. If overtime hours are necessary, approval for working overtime must be given by the employee's supervisors. Overtime pay shall be included with the regular paycheck for that pay period in which the overtime was worked. There will be a minimum two (2) hour call in." a. Barbara Stoner contends the 34 hour employee work week is a typographical error and should read 36 hours. The employee manual is presently being corrected. 39. Between 1997 and 1999 Barry Stoner submitted hours worked to Barbara Stoner as secretary /treasurer or to Deb Reem. a. A reporting by Barry Stoner of hours worked to Barbara Stoner or to Deb Reem was done either verbally or on occasions via pieces of note paper, which were not maintained or formally documented. b. Verbal reports of time given to Barbara Stoner or Deb Reem by Barry Stoner, would be documented on payroll sheets on a bi- weekly basis and submitted to White & Company by Barbara Stoner. 40. Barry Stoner worked the following number of overtime hours between 1997 and 1999: Year Emplo ewe Hours Pay Periods of Overtime 1997 Barry Stoner 232.5 hours 26 pay periods out of 26 1998 Barry Stoner 184.5 hours 19 pay periods out of 26 1999 Barry Stoner 228.5 hours 25 pay periods out of 26 41. Between 1997 and 1999 Barry Stoner's overtime hours were mainly the result of work on the municipal building and plowing snow. 42. Barry Stoner's overtime hours decreased in 2000. a. The majority of overtime hours claimed in years 2000 and 2001 by Barry Stoner were related to snow removal and road paving /maintenance. b. Work on the township municipal building was completed. c. Additional personnel, i.e. Dale Mowrer, were hired. 43. Barbara Stoner, in her capacity as township secretary, has custody and control over payroll records of every individual employed by the township, including her husband, Barry Stoner. a. Since at least 1997 Barbara Stoner and on occasion Deb Reem has processed Stoner 02- 005 -C2 Page 11 and continues to process payroll for all employees, including Barry Stoner. b. The payrolls processed included payment for overtime hours submitted by Barry Stoner. 44. In her capacity as township supervisor, Barbara Stoner signed seventy -eight of seventy -nine paychecks issued between 1997 and 1999 to her husband, Barry Stoner. a. Sixty -nine of those checks included overtime payments. b. These checks were also signed by at least one other member of the board of supervisors. c. Barbara Stoner signed these checks in her capacity as township secretary/ treasurer. 45. W -2 wage and tax statements confirm the following annual wages paid to Barry Stoner since 1997: Year 1997 $43,266.42 1998 $41,441.10 1999 $44,110.10 2000 $43,351.09 2001 $42,008.53 a. These earnings include longevity pay. 46. Barbara Stoner is the mother of three children: a. Timothy Stoner b. Tamela Stoner Barrick c. Tiffany Stoner 47. Tamela Barrick (nee Stoner) is Barbara Stoner's daughter. 48. Tamela Barrick has been employed by East Donegal Township at various times since at least 1996. a. Tamela Barrick performed clerical duties under the supervision of Barbara Stoner and the township police department in 1997 and 1998. b. During the summers of 1997 through 2001, Barrick also was employed as the township playground coordinator. 49. No vote or action of the board of supervisors was taken approving the hiring of Tamela Barrick as an employee of the township. a. The clerical position for which Tamela Barrick was hired was not advertised in local newspapers nor was it posted as a vacancy by the township. b. Members of the board of supervisors Allen Esbenshade and Keith Heigel were aware that Tamela Barrick was performing part -time clerical duties. 1. Barbara Stoner informed them that she was in need of part -time help to assist with office duties. Stoner 02- 005 -C2 Page 12 2. Esbenshade and Heigel agreed with hiring Tamela Barrick as a part -time employee. 50. Barbara Stoner determined the hours worked by her daughter as clerical support. 51. In 1997 and 1998 Tamela Barrick's office duties consisted of assisting with clerical functions. 52. Tamela Barrick has also been employed by East Donegal Township as a director of the township's summer playground director. a. Barrick has served as director since at least the summer of 1997. 53. East Donegal Township annually sponsors a playground program for township youth. a. The township Parks Commission has oversight of this program. b. The program runs for six weeks, usually beginning the third week of June. 54. The East Donegal Township Parks Commission consists of seven members appointed by the board of supervisors to serve staggered terms. a. The Parks Commission has periodically publicly advertised for positions for the summer program. 1. Advertisements have appeared in local newspapers. b. The Parks Commission reviews the applicants and reaches a consensus as to the applicants to be recommended for hire. c. A list of candidates is then submitted to the board of supervisors for approval. d. The Parks Commission will make recommendations to the Board of Supervisors as to salary for playground personnel based on wages earned by East Donegal Township employees, performing similar or related duties. 55. Since at least 1997, Tamela Barrick has annually applied for positions with the summer playground program. a. The Parks Commission has recommended her hiring to the board of supervisors and has also recommended hourly rates of pay. 56. Minutes of the meetings of the East Donegal Township Board of Supervisors confirm that no actions were taken by the board to approve either the hiring of or the compensation for the employees of the summer playground program. a. The board of supervisors relied on the decisions made by the Parks Commission. 57. Payroll reports prepared by Barbara Stoner and on occasion Deb Reem which contain a listing of hours worked by employees of East Donegal Township for the purpose of determining township payroll, include all full -time, part -time and seasonal employees of the Parks Commission. 58. The payroll document prepared by Barbara Stoner and on occasion Deb Reem for each pay period details the following information: Stoner 02- 005 -C2 Page 13 Pay Period Employee name Hours worked Overtime hours Department assignment by general ledger account 59. Tamela Barrick's job functions with the East Donegal Township for years 1997 -2001 are codified by General Ledger Account Numbers that appear on payroll listings. 60. In 1997 and 1998 Tamela Barrick worked as a clerical employee for East Donegal Township. a. Tamela Barrick was supervised by Barbara Stoner who set the hours of work. 61. Tamela Barrick is reported on payroll lists prepared by Barbara Stoner and on occasion Deb Reem as working the following hours as a clerical employee for the township: a. 1997: 266.5 hours b. 1998: 200.0 hours 62. The rates paid to Tamela Barrick for clerical duties were not approved during any formal meeting by the board of supervisors, however, the board was aware of the rates being paid to Ms. Barrick. 63. Tamela Barrick is reported on township payroll records prepared by Barbara Stoner and on occasion Deb Reem as working the following hours as summer playground director. Year Hours Pay Rate 1997 136.5 $ 8.11 /hour 1998 112.0 $ 8.24 /hour 1999 120.0 $ 10.00 /hour 2000 75.0 $ 10.00 /hour 2001 84.25 $ 10.30 /hour 64. The hourly rates paid to Tamela Barrick from 1997 through 1999 as playground director were based on the recommendations made to the board of supervisors by the Parks Commission. a. These rates were not formally approved by the board of supervisors, however, the rates were set by the Parks Commission. 65. Payments were processed to Tamela Barrick by White & Company based on hourly rates provided by Barbara Stoner and on occasion Deb Reem. 66. Barbara Stoner and at least one other supervisor signed eleven (11) paychecks issued to Tamela Barrick in 1997. 67. Since May 1997 Tamela Barrick has not received paychecks from the township. a. All payments to her have been by direct deposit. 68. W -2 Wage and Tax Statements issued by East Donegal Township to Tamela Barrick confirm the following earnings: 1997: $ 3,515.46 Stoner 02- 005 -C2 Page 14 1998 $ 2,527.16 1999 $ 1,200.00 2000 $ 750.00 2001 $ 1,272.06 Total: $ 9,264.68 69. Of the above total, Tamela Barrick has received payments totaling $3,931.63 for performing clerical and related duties for the township between 1997 and 2001. a. The balance of $5,333.05 was related to the summer playground program where pay rates were set by the Parks Commission. 70. Tiffany Stoner has been employed since 1999 as a Playground Aide for East Donegal Township's Summer Playground Program. 71. Parks Commission members have confirmed that Tiffany Stoner was an applicant and was recommended for a position. a. The rate of pay for Tiffany Stoner was based on Parks Commission recommendations. 72. From 1999 through 2001 Barbara Stoner and on occasion Deb Reem prepared payroll documents listing hours worked by Tiffany Stoner and hourly rate of compensation. a. Barbara Stoner and on occasion Deb Reem would submit the payroll documents to White and Company to process payments to Tiffany Stoner. 73. The hourly rate received by Tiffany Stoner as playground aide were as follows: 1999 $5.25 /hour 2000 $6.50 /hour 2001 $6.63 /hour 74. The rates paid to Tiffany Stoner were based on hourly rates recommended by the Park Commission. a. The rates were not formally adopted by the board of supervisors, however, the board of supervisors accepted the rate set by the Parks Commission. 75. Beginning with the pay period ending March 17, 2001, East Donegal Township Supervisor Dennis Drager started approving time sheets listing bi- weekly employee hours as prepared by Barbara Stoner, and on occasion Deb Reem. 76. Time sheets for Tiffany Stoner for the summer of 2001 were prepared by Barbara Stoner and on occasion Deb Reem and approved by Dennis Drager. 77. As a playground aide, Tiffany Stoner received $1,993.90 in gross compensation (Tax Form 1099) as follows: 1999 2000 2001 $656.25 $578.50 $759.15 78. Barbara Stoner and another supervisor signed four checks issued to Tiffany Stoner in 1999. 79. Barbara Stoner's calendar year 1999 Statement of Financial Interests was not on file with East Donegal Township during a compliance review conducted on February 20, Stoner 02- 005 -C2 Page 15 2002, by an investigator for the State Ethics Commission. a. Barbara Stoner contends the Statement of Financial Interests was completed and timely submitted for 1999 by May 1, 2000, and must have been misplaced prior to the compliance review. 80. Barbara Stoner sent a calendar year 1999 SFI form to the State Ethics Commission certified mail on March 15, 2002, with tracking number 70093400001832118222. Stoner attached a letter which states the following: "Dear Mr. Contino, I received your letter dated March 11, 2002. I was surprised to find out that I did not have a Statement of Financial Interests for the year 1999 calendar year on file with the township. I was sure that I had filed a report. I checked the records on file and I have one for each year from 1990 through the present with the exception of 1999. It must have gotten misplaced. But anyway I wanted you to have one for the year mentioned as soon as possible after I received your letter. I am the one who reminds the other employees and I may have forgotten to take care of myself. Thanks so much for the reminder, Sincerely, Barbara Stoner. cc: Kollin Harmon, Special Investigator." 81. Barbara Stoner's filing for calendar year 1999, sent to the State Ethics Commission on March 15, 2002, includes the following: a. Calendar Year: Filed: Position: Creditors: Direct /Indirect Income: All Other Financial Interests: 1999 03/13/02 on SEC form 1 -01 Supervisor /Secretary Home Equity Loan /Mortgage Rental Properties; East Donegal Township None III. DISCUSSION: At all times relevant to this matter, the Respondent, Barbara Stoner, hereinafter Stoner, 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 Stoner, as a Supervisor and Manager for East Donegal Township (Township), violated Sections 3(a )/1103(a) and 4(a)/1104(a) of the Ethics Act when she: participated in actions of the board of supervisors resulting in the appointment of her spouse, Barry Stoner (Barry), as township roadmaster and subsequently set and voted on his compensation; hired or placed her children on the township payroll; authorized and approved overtime payments to her spouse; approved payroll or signed checks issued to her spouse and children; submitted overtime hours on township payroll lists and received overtime compensation as secretary /treasurer from 1997 through 1999 without auditor approval; failed to file a Statement of Financial Interests (SFI) for the 1999 calendar year by May 1, 2000; prepared budgets as township manager with recommendations for salaries for her spouse; authorized her children to be employed by the township without a vote by the board of supervisors; set the salaries of her children; and submitted payroll information authorizing payments for her spouse and children. Pursuant to Section 3(a)/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: Stoner 02- 005 -C2 Page 16 Section 2/1102. 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. 65 P.S. § 402/65 Pa.C.S. § 1102. 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 himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 4(a)/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. 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. Stoner has held various positions with the township: secretary from 1973 to September 8, 1988, supervisor from September 1988 to December 31, 1999, board secretary /treasurer from January 1, 2000, to July 13, 2000, and manager since July 13, 2000. The current duties and responsibilities for Stoner as township manager are delineated in Fact Finding 3. Stoner's salary as manager was set by the township board of supervisors. The salary for Stoner as a secretary /treasurer of the township was set by the township board of auditors. The compensation amounts that Stoner received as township manager, secretary /treasurer, and supervisor are set forth in Fact Findings 8 -10. Since July 1995, the township utilized the services of a private business, White and Company (Firm), to process employee payroll and prepare checks. Either Stoner or her assistant Deborah Reem (Reem) at the beginning of each year confirmed the wages and salaries to be paid to the township employees, followed by bi- weekly timesheets that were faxed from Stoner with a listing of each employee's hours including any overtime. The Firm then took that information and prepared payroll figures. Although the Firm used to prepare payroll checks, the township now is on direct deposit so no physical checks are issued to employees. From 1997 through 1999, Stoner, as the township secretary /treasurer, claimed and received overtime payments, although she did not claim overtime for every pay period. Supervisors Heigel and Esbenshade knew that Stoner worked in excess of her normal hours and believed she could receive overtime. From January 1997 through December 1999, payroll submitted to the Firm included overtime hours for Stoner as secretary /treasurer. However, the township board of auditors in 1997, 1998, and 1999 approved the annual salaries for the township supervisor as secretary /treasurer without any overtime. Nevertheless, Stoner received the following amounts of overtime in 1997 through 1999: 56.5 Stoner 02- 005 -C2 Page 17 hours in 1997, 67 hours in 1998 and 35 hours in 1999. During the time when the township issued checks to employees, Stoner signed eight checks to herself between January 25, 1997 and May 31, 1997 which included 44 hours of overtime payments. Other payments during the period 1997 -1999 were directly deposited into Stoner's personal account. Further, the board of supervisors, from January 1997 through 2001, did not approve payroll on the theory that a vote to approve was not required at a township meeting. Stoner received total yearly compensation from the township as follows: $41,261.64 in 1997; $41,153.58 in 1998, and $45,101.11 in 1999. Stoner and her spouse Barry have three children: Tamela Barrick (Tamela), Tiffany Stoner (Tiffany) and Timothy Stoner (Timothy). Barry was appointed as a roadmaster in the township on April 13, 1989, with Stoner abstaining on the vote. Barry generally sets his working schedule but receives directives from both Supervisor Esbenshade and his spouse Stoner who, as township manager, has supervisory authority over Barry as roadmaster. Barry's salary is set when the Public Works Highway and Roads, Bridges and Streets budget is approved by the board of supervisors. Budget figures for the highway department include the salary for Barry, as prepared by Stoner in her capacities as manager and secretary /treasurer with the assistance of Reem. The draft budget is reviewed and revised by the board of supervisors during work sessions in which Stoner participates in the review, including setting rates of pay for township employees. As a supervisor, Stoner participated in votes of the board to approve the budgets for 1997 through 2000. See, Fact Finding 34. Since at least 1997, Barry worked overtime and received compensation at the rate of time and a half. Because the supervisors knew that Barry was working overtime, he received informal approval to work such overtime hours in 1997 and 1998. The board formalized overtime through its approval of an employee manual in January of 1999 with pay at the rate of time and a half for time in excess of 40 hours for the road department. Between 1997 and 1999, Barry submitted hours worked to either Stoner or Reem. Barry worked overtime hours amounting to 232.5 hours in 1997, 184.5 hours in 1998, and 228.5 hours in 1999. As township secretary, Stoner had custody and control over the payroll records for all employees including Barry. The payrolls processed by Stoner or by Reem included payments for overtime hours submitted by Barry. Stoner, in her official township capacity, signed 78 of the 79 paychecks issued between 1997 and 1999 to Barry. The total compensation that Barry received for the years 1997 through 2001 is set forth in Fact Finding 45. Stoner's daughter, Tamela, has been employed by the township at various times since 1996. Tamela either performed clerical duties under the supervision of Stoner or the police department in 1997 and 1998, and worked as a township playground coordinator during the summers of 1997 through 2001. Tamela was hired without any posting of a vacancy. Stoner informed the board that she needed part -time help and Supervisors Esbenshade and Heigel agreed with the hiring. Stoner, as Tamela's supervisor, determined the number of hours worked by Tamela as clerical support. Regarding Tamela's work as the director of the summer program, the seven member township parks commission recommended her hiring to the board of supervisors; however, the board of supervisors did not take any action regarding the hiring or compensation of employees for the summer playground program. The payroll reports prepared by Stoner or Reem list the hours worked by employees for the purpose of determining township payroll regardless of whether the employees are full -time, part -time, or seasonal employees. Although the board of supervisors never approved pay rates for Tamela for clerical duties, the board was aware of the rates being paid to Tamela. The rates of pay for Tamela for the years 1997 through 2001 are delineated in Fact Finding 63. The hourly rates of pay for Tamela from 1997 through 1999 as playground director were based upon rates set by the park commission, although said rates were never formerly approved by the board of supervisors. Tamela worked 266.5 hours in 1997 and 200 hours in 1998. Prior to the time the township began direct deposit, Stoner, in her official township capacity, signed 11 paychecks issued to Tamela in 1997. The wages received by Tamela from the township for the years 1997 through 2001 are delineated in Fact Finding 68. Of the $9,264.68 of compensation that Stoner 02- 005 -C2 Page 18 Tamela received in those five years, $3,931.63 was for performing clerical and related duties and $5,333.05 was for work associated with the summer playground program. Tiffany, another child of Stoner, has been employed by the township since 1999 as a playground aid for the summer playground program. The parks commission members confirmed that Tiffany applied for the position. The hourly rates of pay for Tiffany were based upon the rates recommended by the park commission. However, the rates were not formally adopted by the board of supervisors. Tiffany received a total of $1,993.90 in compensation for the years 1999 through 2001 as a playground aid. Stoner, in her official township capacity, signed four checks issued to Tiffany in 1999. During an SFI compliance review of the township conducted by an investigator of this Commission in February of 2002, there was no SFI on file for Stoner for calendar year 1999. In response, Stoner wrote a letter indicating that she checked and verified that she had SFI's on file for calendar years 1990 through the present with the exception of the 1999 calendar year. Stoner commented that she believed the SFI must have been misplaced although it was possible that she may have forgotten to file the form for that year. Stoner enclosed a completed SFI for the calendar year 1999 with that letter. 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: "a. That an unintentional violation of Section 3(a) of the Ethics Act occurred when Barbara Stoner, as an East Donegal Township Supervisor, participated in actions of the board of supervisors to set salary and approve payments, including signing checks to her husband, Barry, in his capacity as township roadmaster. b. That an unintentional violation of the Ethics Act occurred when Barbara Stoner submitted overtime hours on township payroll lists and received overtime compensation as secretary /treasurer from 1997 through 1999 without auditor approval. c. That no violation of Section 3(a) of the Ethics Act occurred when Barbara Stoner authorized payroll, issued and signed checks as payment to her children for serving as employees of the East Donegal Township Summer Playground Program, as the hirings and compensation had been approved by the Township Parks & Recreation Commission. d. That no violation of Section 4(a) of the Ethics Act occurred when a Statement of Financial Interests for the 1999 calendar year for Barbara Stoner due by May 1, 2000, was not on file when requested by investigators. The Investigative Division accepts Barbara Stoner's assertion the form was misplaced. e. And that no violation of Section 3(a) of the Ethics Act occurred when Barbara Stoner participated in actions of the township to hire her daughter as a part -time clerical employee for the township by setting work schedules, preparing payroll and signing checks issued to her daughter because the hiring had been verbally approved by the board of supervisors. 4. Stoner agrees to make payment in the amount of $1,000.00 in settlement of this matter. Said amount to be payable to East Donegal Township and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter." As to the allegation concerning Stoner's participation in actions of the board to set the salary, approve payments and sign checks to her spouse, there were uses of authority of office on the part of Stoner. Although Stoner did not participate in her spouse's appointment, Stoner 02- 005 -C2 Page 19 the stipulated facts reflect that she participated in board actions as to salary and the approval of payments including the signing of checks. Such actions were uses of authority of office. See, Juliante, Order 809. But for the fact that Stoner was a supervisor, she could not have been in a position to participate in such actions as to the salary and payments for her spouse. Such uses of authority of office resulted in private pecuniary benefits to Barry consisting of the salary and payments he received as roadmaster. Further, Barry, as Stoner's spouse, is a member of her immediate family as that term is defined under the Ethics Act. See, Section 1102, 65 Pa.C.S. §1102. Accordingly, Stoner unintentionally violated Section 3(a)/1103(a) of the Ethics Act when she participated in actions of the township board as to setting salary, approving payments and signing checks to her spouse as the township roadmaster. See, Oesterlinq, Order 941 -2. Turning to the allegation concerning the submission of overtime hours by Stoner as secretary /treasurer without auditor approval, the stipulated findings reflect that the township auditors did not approve overtime payments for the position of township secretary /treasurer. Nevertheless Stoner submitted overtime hours for her work in that position. Even though the remaining members of the board of supervisors were aware that Stoner was receiving such overtime payments, Stoner used the authority of office to receive such compensation. The overtime was not authorized in law because the township board of auditors did not approve any overtime. Stoner signed eight checks issued to herself which included compensation for overtime hours. Such actions were also uses of authority of office on her part. The overtime that Stoner received was a pecuniary benefit to her. The pecuniary benefit was private in that it was compensation other than provided by law. See, Hes�sin e Order 931, Wasiela, Order 932, affirmed in part, R.H., a Public Official v. SEC, 673 A.2d 1004 (Pa. Commw. 1996). Accordingly, Stoner unintentionally violated Section 3(a)/1103(a) of the Ethics Act when she submitted and received overtime compensation as secretary /treasurer from 1997 through 1999 without the requisite auditor approval. As to the allegation concerning Stoner's authorizing payroll, issuing and signing checks to her two children for serving as employees in the summer playground program, such actions by Stoner were uses of authority office, even though the hirings and compensation had been approved by the townshi p parks and recreation commission. The compensation that was received by Stoner's children was a private pecuniary benefit. Stoner's children are members of her immediate family as that term is defined under the Ethics Act. However, the parties, through the negotiation process, have stipulated in the Consent Agreement that no violation of Section 3(a)/1103(a) of the Ethics Act occurred as to this allegation. We will treat the above as a non pros by the Investigative Division as to this particular allegation. Accordingly, Stoner did not violate Section 3(a)/1103(a) of the Ethics Act regarding authorizing payroll, issuing and signing checks to her children as employees of the township summer playground program when the hirings and compensation had been approved by the Township Parks and Recreation Commission. Turning to the SFI allegation, the stipulated fact findings reflect that the SFI for Stoner for the calendar year 1999 was not on file during the compliance review audit by the State Ethics Commission investigator. Stoner advised the Investigative Division that she had her SFI's on file from calendar year 1990 through the present with the exception of 1999 which was either misplaced or never filed. In that the Investigative Division accepts as a fact that Stoner's form was misplaced, we conclude that no violation occurred on that basis. Accordingly, Stoner did not violate Section 4(a)/1104(a) of the Ethics Act regarding her 1999 calendar year SFI which was misplaced at the time of the compliance review by this Commission. We note that Stoner has filed with this Commission another SFI for the calendar year 1999 on March 15, 2002. As to the last allegation concerning Stoner's participating in actions of the township to hire her daughter as a part -time clerical employee together with setting her work schedules, preparing payroll and signing checks, there were uses of authority of office on the part of Stoner. In particular, the stipulated findings reflect that as to Tamela, Stoner determined the Stoner 02- 005 -C2 Page 20 number of hours worked by her daughter as clerical support. See, Fact Finding 50. In addition, Stoner prepared payroll and signed checks issued to her daughter. Such actions were uses of authority of office. However, the parties propose to resolve this allegation by no violation on the basis that the hiring had been verbally approved by the board of supervisors. See, Fact Finding 49.(c). We will treat the above as a non pros by the Investigative Division as part of a comprehensive settlement in this case as to all of the allegations. Accordingly, Stoner did not violate Section 3(a)/1103(a) of the Ethics Act regarding the hiring of her daughter as a part -time clerical employee based upon a non pros by the Investigative Division. See, Dodaro v. State Ethics Commission, 527 Pa. 539; 594 A.2d 652 (1991). We determine that the Consent Agreement submitted by the parties sets forth the proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, Stoner is directed to make payment of $1,000 to East Donegal Township through this Commission within 30 days of the mailing of this Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Barbara Stoner, as a Supervisor and Manager for East Donegal Township, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Stoner unintentionally violated Section 3(a)/1103(a) of the Ethics Act when she participated in actions of the township board as to setting salary, approving payments and signing checks to her spouse Barry, the township roadmaster. 3. Stoner unintentionally violated Section 3(a)/1103(a) of the Ethics Act when she submitted and received overtime compensation as secretary /treasurer from 1997 through 1999 without the requisite auditor approval. 4. Stoner did not violate Section 3(a)/1103(a) of the Ethics Act regarding authorizing payroll, issuing and signing checks to her children as employees of the township summer playground program when the hirings and compensation had been approved by the Township Parks and Recreation Commission. 5. Stoner did not violate Section 4(a)/1104(a) of the Ethics Act regarding her 1999 calendar year SFI which was misplaced at the time of the compliance review by this Commission. 6. Stoner did not violate Section 3(a)/1103(a) of the Ethics Act regarding the hiring of her daughter as a part -time clerical employee based upon a non pros by the Investigative Division. In Re: Barbara Stoner ORDER NO. 1304 File Docket: 02- 005 -C2 Date Decided: 12/1/03 Date Mailed: 12/15/03 1. Barbara Stoner, as a Supervisor and Manager for East Donegal Township, unintentionally violated Section 3(a)/1103(a) of the Ethics Act when she participated in actions of the township board as to setting salary, approving payments and signing checks to her spouse Barry Stoner, the township roadmaster. 2 Stoner unintentionally violated Section 3(a)/1103(a) of the Ethics Act when she submitted and received overtime compensation as secretary /treasurer from 1997 through 1999 without the requisite auditor approval. 3 Stoner did not violate Section 3(a)/1103(a) of the Ethics Act regarding authorizing payroll, issuing and signing checks to her children as employees of the township summer playground program when the hirings and compensation had been approved by the Township Parks and Recreation Commission. 4 Stoner did not violate Section 4(a)/1104(a) of the Ethics Act regarding her 1999 calendar year SFI which was misplaced at the time of the compliance review by this Commission. 5 Stoner did not violate Section 3(a)/1103(a) of the Ethics Act regarding the hiring of her daughter as a part -time clerical employee based upon a non pros by the Investigative Division. 6. Per the Consent Agreement of the parties, Stoner is directed to make payment of $1,000 to East Donegal Township through this Commission within 30 days of the mailing of this Order . a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair Stoner 02- 005 -C2 Page 22 Commissioner Daneen E. Reese did not participate in this matter.