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HomeMy WebLinkAbout1833 DudishPHON E ; 7,17 -78 3-1610 TOLL FREE; 1­800-932.10936 In Re: Ann Dudish, Respondent STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARI3ISB1.JRG, PA 17120-0400 File Docket: Order No. Date Decided: Date Mailed: 23-0009-C 1833 4/9/24 4/12/24 Before: Michael A. Schwartz, Chair Rhonda Hill Wilson, Vice Chair David L. Reddecliff Robert P. Caruso Emilia McKee Vassallo Thomas E. Leipold This is a final adjudication of the State Ethics Commission. FACSIMILE: 717-787-0806 WEBSITE: Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding possible violation(s) of the Public Official and Employee Ethics, Act ("Ethics Act"), 65 Pa.CaS. § 1101 etsue, bythe above -named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegations. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." A Stipulation of Findings and a Consent Agreement were subsequently submitted by the parties to the State Ethics Commission ("Commission") for consideration, The Stipulated Findings are set forth as the Findings in this Order. The Consent Agreement has been approved. I. ALLEGATIONS: That Ann Dudish, a public official as the Recorder of Deeds for Schuylkill County ("County"), violated Section 1103(a) of the Ethics Act: (1) When she used the authority of her public position to appoint her brother as the First Deputy Recorder of Deeds, resulting in a private pecuniary benefit to her brother; and (2) When, in her public position as the Recorder of Deeds, she sat on the County Salary Board and voted to approve her brother's salary, Dudish, 23-0009-C Page 2 IL FINDINGS: 1. Ann Dudish ("Dudish") has served as the Recorder of Deeds for Schuylkill County ("County") since September 26, 2014. a. The County Recorder of Deeds Office is an independent row office within the County's governmental structure. 2. The County follows Section 1620 of the County Code, 16 P.S. § 1620, regarding hiring and approving compensation for County employees. a. Section 1620 reads in part that: "The salaries and compensation of all appointed officers and employees who are paid from the county treasury shall be fixed by the salary board created by this act for such purpose... The exercise of such responsibilities by the county commissioners shall in no way affect the hiring, discharging and supervising rights and obligations with respect to such employees as may be vested in the judges or other county officers." 3. The County Salary Board's sole role in the County's hiring process is to approve compensation for existing positions. a. The County Salary Board consists of the three County Commissioners, the County Controller, and the row officer for the office requesting the personnel change. b. The County does not have a nepotism policy. 4. The County Recorder of Deeds Office employs at least four full-time employees, including the elected Recorder of Deeds. a. Other positions within the County Recorder of Deeds Office include the First Deputy Recorder of Deeds, a Clerk or Clerk Typist I or 11, and a Systems Management Coordinator. b. The position of First Deputy Recorder of Deeds is responsible for overseeing the day-to-day operations of the County Recorder of Deeds Office. 5. Gerard Klema ("Klema") began his full-time employment in the County Recorder of Deeds Office on April 28, 2008. a. Klema is Dudish's brother. b. Klema was hired as a Clerk I. c. Klema's full-time status was based on a thirty-five hour work week, seventy hours per biweekly pay period. Dudish, 23-0009-C Page 3 6. Klema was promoted from a Clerk I to a Clerk Typist I effective February 28, 2012. a. Klema was promoted from a Clerk Typist I to a Clerk Typist II effective December 31, 2012. 7. The position of First Deputy Recorder of Deeds became available due to the retirement of Marcie Schultz ("Schultz") effective November 18, 2022. Dudish, in her official capacity as the County Recorder of Deeds, was responsible for selecting the replacement for Schultz. a. Dudish, through Schultz (who was retiring), first offered the position of First Deputy Recorder of Deeds to Michael Postick ("Postick"), Systems Management Coordinator, who had the most seniority in the County Recorder of Deeds Office, but he declined the position. b. After Postick's decision not to accept the position, Dudish selected her brother, Klema, who held the position of Clerk Typist 11, had been employed by the County Recorder of Deeds Office since April 28, 2008, and was highly qualified for the position of First Deputy Recorder of Deeds, to be promoted from his Clerk Typist II position to replace Schultz effective November 21, 2022. 9. Dudish initiated her brother's promotion by submitting a Personnel Action Request ("PAR") dated November 9, 2022, to the County Board of Commissioners and the County Salary Board via the County Human Resources Department. a. Dudish submitted the PAR nine days prior to the effective date of Schultz's retirement. 10. In submitting the PAR, Dudish sought to reclassify Klema from a unionized Clerk Typist II position earning $19.64 per hour to a non -unionized First Deputy Recorder of Deeds position earning an annual salary of $39,410.00. a. Klema's salary of $39,410.00 was based on a County salary scale. 11. Dudish's selection of Klema to be the First Deputy Recorder of Deeds was presented to the County Commissioners and general public under the Agenda item of "informational: Recorder of Deeds -Retirement & promotion" during the County Board of Commissioners' November 16, 2022, meeting. a. The public was informed that "First Deputy Marcie Schultz, Schuylkill Haven, PA has retired from said position effective November 18, 2022 (and) Gerard Klema, Norwegian Township, PA had been promoted from the Clerk Typist II position to the First Deputy position, exempt, effective November 21, 2022." Dudish, 23-0009-C Page 4 b. Information included at the end of the "informational" section states that "all actions involving salary or for positions being created are pending Salary Board approval." C. The County Board of Commissioners took no official action on the promotion of Klema. d. The County Board of Commissioners' meeting is held immediately prior to the County Salary Board meeting. 12. At the County Salary Board meeting which immediately followed the County Board of Commissioners' meeting, Dudish participated in the vote to approve Klema's compensation as the new First Deputy Recorder of Deeds. a. The vote was 5-0. 13. Minutes from the County Salary Board's November 16, 2022, meeting include the following actions approving Klema's salary: a. "Recorder of Deeds --- Set Salary. Requested approval to set the salary of First Deputy Gerard Klema, Norwegian Township, PA, Exempt, Pay Range 7, Step 2, at an annual salary of $39,410.00. The salary reflects 2023 rate effective November 21, 2022. Motion Requested. Motion: It was moved by Commissioner Halcovage, Seconded by Commissioner Hess to approve the above request. Roll Call: Commissioner Hetherington -Yes, Commissioner Hess -Yes, Commissioner Halcovage-Yes, Recorder of Deeds Dudish -Yes, First Deputy Controller Pacenta- Yes." b. Dudish did not disclose that Klema is a member of her immediate family prior to the County Salary Board's vote to approve Klema's compensation, but it was general knowledge that Dudish and Klema are brother and sister. C. Minutes from the County Salary Board's November 16, 2022, meeting were approved without any changes on November 23, 2022. 14. Klema's promotion to First Deputy Recorder of Deeds effective November 21, 2022, increased his annual salary by $3,675.03, from $35,734.97 as a Clerk Typist II to $39,410.00. 15. Klema's salary history with the County reflects the following increases while employed in the County Recorder of Deeds Office: a. Date: 04/28/08 02/29/12 12/31/12 11/21/22 Rate: Annual: 12.00 hr. $21,844.37 1331 hr. $24,221.65 19.65 hr. $35,734.97 21.65 hr. $39,410.00 Position: Clerk I CT CT 11 First Deputy Recorder Dudish, 23-0009-C Page 5 b. These rates were based on a 70 hour pay period. 16. On December 21, 2023, both Dudish and Klema were interviewed in the presence of her counsel, Joseph H. Jones, Jr. During the investigative interview, Dudish advised that: a. She discussed possible replacements for the retiring Schultz with office staff on or before November 9, 2022. b. She believed that either Postick or Klema had more than enough experience in the County Recorder of Deeds Office. Dudish wanted to hire someone with specific knowledge of the workings of the County Recorder of Deeds Office and its computer system, which was in the process of being upgraded. Accordingly, Dudish decided not to advertise or seek applicants for the position who were not already employed in the County Recorder of Deeds Office. G. She decided to promote her brother. d. She completed the PAR dated November 9, 2022, thereby facilitating the promotion. e. She voted during the County Salary Board's November 16, 2022, meeting where Klema's compensation for the position was approved unanimously by a 5-0 vote. f. Neither the Solicitor for the Recorder of Deeds Office nor the Assistant County Solicitor who was at the County Salary Board meeting advised Dudish to abstain from the vote on Klema's compensation. Dudish was unaware that her voting on the compensation for her brother constituted a violation of the Ethics Act. III. DISCUSSION: As the Recorder of Deeds for Schuylkill County ("County"), Pennsylvania, since September 26, 2014, Respondent Ann Dudish ("Dudish") has been a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et am - The The allegations are that Dudish violated Section 1103(a) of the Ethics Act: (1) When she used the authority of her public position to appoint her brother as the First Deputy Recorder of Deeds, resulting in a private pecuniary benefit to her brother; and (2) When, in her public position as the Recorder of Deeds, she sat on the County Salary Board and voted to approve her brother's salary. 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: Dudish, 23-0009-C Page 6 § 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). The following terms relevant to Section 1103(a) are defined in the Ethics Act as follows: § 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 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. The term 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. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary (financial) 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. A brother is a member of "immediate family" as the Ethics Act defines that term. See, 65 Pa.C.S. § 1102. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are set forth above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. The County Recorder of Deeds Office is an independent row office within the County's governmental structure. The County Recorder of Deeds Office employs at least four full-time employees, including the elected Recorder of Deeds, the First Deputy Recorder of Deeds, a Clerk or Clerk Typist, and a Systems Management Coordinator. The First Deputy Recorder of Deeds is responsible for overseeing the day-to-day operations of the County Recorder of Deeds Office. Dudish, 23-0009-C Page 7 Gerard Klema ("Klema") is Dudish's brother. On April 28, 2008, Klema began full-time employment with the County Recorder of Deeds Office as a Clerk 1. Klema was promoted from a Clerk I position to a Clerk Typist I position effective February 28, 2012. Klema was later promoted to a Clerk Typist II position effective December 31, 2012. Dudish began serving as the County Recorder of Deeds on September 26, 2014. The position of First Deputy Recorder of Deeds became available effective November 21, 2022, due to the impending retirement of then First Deputy Recorder of Deeds Marcie Schultz ("Schultz"). As the County Recorder of Deeds, Dudish was responsible for selecting Schultz's replacement. Dudish, through Schultz, first offered the position of First Deputy Recorder of Deeds to Michael Postick ("Postick"), Systems Management Coordinator, who had the most seniority in the County Recorder of Deeds Office, but he declined the position. Dudish then selected her brother, who was highly qualified for the position, to be promoted from his Clerk Typist II position to replace Schultz as the First Deputy Recorder of Deeds effective November 21, 2022. Pursuant to Section 1620 of the County Code, 16 P.S. § 1620, the County Salary Board approves the compensation for positions with the County. The County Salary Board consists of the three County Commissioners, the County Controller, and the row officer for the office requesting the personnel change. Dudish initiated her brother's promotion by submitting a Personnel Action Request dated November 9, 2022, to the County Board of Commissioners and the County Salary Board. In submitting the Personnel Action Request, Dudish sought to reclassify Klema from a unionized Clerk Typist 11 position earning $19.64 per hour to a non -unionized First Deputy Recorder of Deeds position earning an annual salary of $39,410.00 based on a County salary scale. Dudish's selection of Klema to be the First Deputy Recorder of Deeds was presented to the County Commissioners and the general public under the agenda item of "informational: Recorder of Deeds -Retirement & promotion" during the County Board of Commissioners' November 16, 2022, meeting. At the County Salary Board meeting which immediately followed the County Board of Commissioners' meeting, Dudish participated in a unanimous vote that approved Klema's compensation as the First Deputy Recorder of Deeds. Dudish did not disclose that Klema is a member of her immediate family prior to the County Salary Board's vote to approve Klema's compensation, but it was general knowledge that Dudish and Klema are brother and sister. Klema's promotion effective November 21, 2022, increased his annual salary by $3,675.03, from $35,734.97 as a Clerk Typist II to $39,410.00 as the First Deputy Recorder of Deeds. 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 as follows: 3. The Investigative Division will recommend the following in relation to the above allegations: Dudish, 23-0009-C Page 8 a. That a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Dudish appointed her brother as First Deputy Recorder of Deeds and voted to approve his salary. 4. Given that Dudish did not receive a financial gain herself as a result of her violation of Section 1103(a), the Investigative Division recommends that no penalties be imposed. See, 65 Pa.C.S. §§ 1107(13), 1109(c). 5. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Dudish's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. a. Dudish has been advised that as a matter of course, all orders from the Commission are provided to the Attorney General, albeit without any specific recommendations. b. Dudish has been advised that all orders become public records and may be acted upon by law enforcement as they deem appropriate. c. The non -referral language contained in this paragraph is considered an essential part of the negotiated Consent Agreement. Consent A rg eement, at 1-2. We accept the recommendation of the parties for a finding of a violation of Section 1103(a) of the Ethics Act. It is clear that the elements of a use of the authority of office for a private pecuniary benefit have been established. Dudish used the authority of her office as the County Recorder of Deeds when she selected her brother for the position of First Deputy Recorder of Deeds and participated in the unanimous vote of the County Salary Board that approved his compensation for the position. As a result of Dudish's uses of the authority of her office, her brother's annual salary as a County employee increased by $3,675.03. With each element of the recommended violation of Section 1103(a) established, we hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Dudish appointed her brother as First Deputy Recorder of Deeds and voted to approve his salary. Dudish, 23-0009-C Page 9 Given that Dudish did not receive a financial gain as a result of her violation of Section 1103(a) of the Ethics Act, no financial penalties maybe imposed upon her. See, Sections 1107(13) and 1109(c) of the Ethics Act, 65 Pa.C.S. §§ 1107(13), 1109(c). IV. CONCLUSIONS OF LAW: As the Recorder of Deeds for Schuylkill County ("County"), Pennsylvania, since September 26, 2014, Respondent Ann Dudish ("Dudish") has been a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec . 2. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Dudish appointed her brother as First Deputy Recorder of Deeds and voted to approve his salary. In Re: Ann Dudish, File Docket: 23-0009-C Respondent Date Decided: 4/9/24 Date Mailed: 4/12/24 ORDER NO. 1833 1. A violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Ann Dudish, as the Recorder of Deeds for Schuylkill County, Pennsylvania, appointed her brother as First Deputy Recorder of Deeds and voted to approve his salary. BY THE COMMISSION, &A Michael A. Schwa z; Chair