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HomeMy WebLinkAbout1314 KellerIn Re: Carol Keller File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Donald M. McCurdy Michael Healey Paul M. Henry Raquel K. Bergen 03 -038 Order No. 1314 March 11, 2004 March 26, 2004 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 investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was not filed and a hearing was deemed waived. The record is complete. 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Keller 03 -038 Page 2 I. ALLEGATION: That you, Carol Keller, a (public official /public employee) in your capacity as Supervisor of Upper Nazareth Township, Lehigh County, violated Section 1103(a) of the Public Official and Employee Ethics Law (65 Pa.C.S. §1101 et seq.) when you used the authority of your office for a private pecuniary gain of a member of your immediate family or a business with which you and /or a member of your immediate family is associated, including but not limited to participating in discussions and actions of the board of supervisors to hire Keller Consulting Engineering as sewage enforcement officer for the township; and when you participated in decisions of the board to approve payments to said company owned by your husband. II. FINDINGS: 1. Carol Keller was elected to the Upper Nazareth Township, Lehigh County, Board of Supervisors during the November 2002 general election. a. Keller was sworn in and took office as a supervisor for Upper Nazareth Township at the re- organization meeting of the Board of Supervisors held in January 2003. 2. Carol Keller filed Statements of Financial Interests (SFI) as a candidate for township supervisors and as an incumbent elected official. a. As a candidate for Upper Nazareth Township Supervisor, Keller filed a Statement of Financial Interests (SFI) for the 2001 calendar year with Upper Nazareth Township dated February 26, 2002. 1. Keller's occupation is identified as a secretary. 2. Keller discloses direct /indirect sources of income in excess of $1,300 as: Farmland Rental, Nazareth, PA; Tupperware (TLC) Enterprises, Allentown; Keller Consulting Engineers, Nazareth. 3. Keller discloses on Line 13, office, directorship or employment of any nature in any business that she serves as Secretary for the corporation of Keller Consulting Engineers, Inc. b. Keller signed and filed a SFI for the 2002 calendar year with Upper Nazareth Township on April 1, 2003. 1. Keller's occupation is identified as secretary. 2. Direct /Indirect source of income in excess of $1,300 is identified as Keller Consulting Engineers. 3. Keller is identified as a Secretary for the corporation of Keller Consulting Engineers, Inc. on Line 13. 3. During the re- organization meeting of the Board of Supervisors, the board makes appointments to various boards and positions. 4. The process for appointing a non - elected township official is as follows: a. An individual for a specific position is nominated by a supervisor. b. A discussion amongst the supervisors ensues concerning the nominee's background qualifications, and any objections to the appointment. Keller 03 -038 Page 3 c. A vote is taken amongst the supervisors concerning the appointment of the specific township official. d. Based on the majority votes made by the supervisors, an individual is either appointed or not appointed to the specific position. 5. The position of Sewage Enforcement Officer is an appointed position within Upper Nazareth Township. a. The appointment of the Sewage Enforcement Office is made each January at the re- organization meeting of the board of supervisors. 6. Donald Keller is the husband of Carol Keller. a. Donald Keller is the President of Keller Consulting Engineers, Inc. 7. Keller Consulting Engineers, Inc., has been incorporated in the Commonwealth of Pennsylvania since at least March 20, 1986. a. Donald Keller is listed as company President. b. The company's stated purpose is broad engineering services. 8. Keller Consulting Engineers served as Upper Nazareth Township Sewage Enforcement Officer for a six year period prior to January 2003. 9. On or about November 20, 2002, Donald Keller forwarded a letter to the Upper Nazareth Township Board of Supervisors requesting his company's continued association with the township for 2003. a. Keller included the company's billing rates for 2003. 10. At the January 6, 2003, re- organization meeting of the Upper Nazareth Township Board of Supervisors, Donald Keller was nominated for the position of Sewage Enforcement Officer for the upcoming year. a. Carol Keller was present at the meeting. 1. This was her first meeting as a member of the board of supervisors. b. Supervisor Thomas Sutter nominated Joseph Black for the position of Sewage Enforcement Officer. c. Vicki Osborne, a supervisor for U Keller for the position of Sewage per Nazareth Township, nominated Donald = nforcement Officer for the year 2003. d. Minutes reflect a discussion ensued amongst the supervisors concerning the appointment of Donald Keller as Sewage Enforcement Officer. 1. Of concern was the fact that Carol Keller was just sworn in as a supervisor for Upper Nazareth Township. 11. The minutes of the January 6, 2003, meeting confirm that Carol Keller participated in the vote to appoint her husband's company as sewage enforcement officer. a. Supervisors Sutter and Recker voted for Joseph Black as Sewage Enforcement Keller 03 -038 Page 4 Officer. 1. Their vote for the appointment of Black, as opposed to Donald Keller, was due to the potential conflict of interest of Carol Keller, his wife, now serving as a township supervisor. b. Supervisors Osborne, Kresge and Keller voted in favor of the appointment of Donald Keller as Sewage Enforcement Officer for Upper Nazareth Township for the calendar year of 2003. c. By a three to two (3 -2) vote of the Supervisors, Donald Keller's appointment became effective as of the date of the January 2003 re- organization meeting of the Upper Nazareth Township Board of Supervisors. d. Joseph Black was named Alternate Sewage Enforcement Officer. 12. The secretary to the Upper Nazareth Township Board of Supervisors prepares minutes of supervisors meetings. a. Nominations and discussions relating to the appointments of various positions are recorded in the minutes. 1. Votes concerning appointments are recorded in the minutes. b. Minutes prepared by the Secretary are reviewed at a subsequent meeting of the Board of Supervisors. 1. Corrections, if needed, are made to the meeting minutes. c. A motion is made and vote taken to accept the minutes, as read, of the previous meeting of the Board of Supervisors. d. The minutes are adopted as the official record of the board of supervisors meetings if voted in favor of by the majority of the present supervisors. 13. The minutes for the January 6, 2003 re- organizational meeting of the Upper Nazareth Township Board of Supervisors were presented for review and approval at the subsequent meeting of February 12, 2003. a. The minutes of the January 2003 re- organization meeting were adopted as the official record of the meeting. 1. There were no additions, deletions, corrections to the minutes concerning the appointment of Donald Keller as the Sewage Enforcement Officer for Upper Nazareth Township for the calendar year 2003. 14. Carol Keller was present at the February 12, 2003, meeting where the minutes of the January 2003 re- organization meeting were presented for review and adoption. 15. The Sewage Enforcement Officer (SEO) sets the fees for services rendered as part of his official township position. a. The township plays no role in the setting of the SEO's fees. b. Fees for services rendered by the Upper Nazareth Township Sewage Enforcement Officer are due and payable to the township by the applicant for services. Keller 03 -038 Page 5 c. The township subsequently pays the sewage enforcement officer the amount received for services previously rendered by him. 16. Keller Engineering's 2003 fee schedule for sewage services is as follows: Test Pit Profile Analysis: $ 70.00 Percolation Test (limited to six holes) $325.00 (plus hourly rate to dig holes) Observation of Percolation Test $200.00 Permit Application Review $ 85.00 Pre - construction Inspection /Meeting $ 90.00 Final Inspection Standard System) $ 90.00 Final Inspection (Sa Mound) $275.00 Permit Renewal $120.00 System Malfunction (1) Inspection $ 80.00 Consulting $ 50.00 /hour Alternate or Experimental System Review $ 50.00 /hour Verify Prior Testing $ 90.00 Module Review Minor subdivision 1 -10 lots) $100.00 Major subdivision (10 lots) $200.00 17. Expenditures are approved by the UNT Board of Supervisors on a monthly basis. a. A financial statement is submitted to the board prior to each meeting listing the vendor and check to be issued. b. The board will then vote to approve /disapprove financial statements. 18. Payments issued to Keller Engineering were approved by the UNT Board of Supervisors in 2003 for SEO related services a. Carol Keller abstained from voting to issue payments to Keller Engineering. 19. During the period January 1, 2003, through December 31, 2003, a total of nine (9) checks were issued to Keller Consulting Engineers in the total amount of $13,905.00. a. The checks were paid from the general account of Upper Nazareth Township. 20. The following discloses payments issued to Keller Engineering in 2003, including date approved and actions by Carol Keller. Date of Carol Keller Check No. Date Amount Mee�tin Action 10112 03/11/03 $ 8,610.00 03/12/03 Abstain 10163 03/27/03 $ 175.00 04/09/03 Abstain 10209 04/23/03 $ 360.00 04/09/03 Abstain 10324 04/30/03 $ 1,420.00 05/14/03 Abstain 10433 06/05/03 $ 525.00 06/11/03 Abstain 10558 07/03/03 $ 1,235.00 06/11/03 Abstain 10713 08/30/03 $ 100.00 08/30/03 Abstain 10798 09/30/03 $ 910.00 09/30/03 Abstain 11/28/03 $ 570.00 11/28/03 Abstain 21. Payments made to Keller Engineering by the township were deposited to a business account in the name of Keller Consulting Engineering. Keller 03 -038 Page 6 22. During calendar year 2003 Carol Keller was a compensated employee of Keller Consulting Engineering. a. Bi- weekly payments made to Carol Keller were made from the Keller Consulting Engineering account. 23. Keller Consulting Engineering declined to see re- appointment as Upper Nazareth Township SEC for the 2004 calendar year. III. DISCUSSION: At all times relevant to this matter, the Respondent, Carol Keller, hereinafter Keller, 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 Keller, as an Upper Nazareth Township Supervisor, violated Section 1103(a) of the Ethics Act when she participated in discussions and actions of the board of supervisors to hire Keller Consulting Engineering as sewage enforcement officer for the township; and participated in decisions of the board to approve payments to said company owned by her husband. 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 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. 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. Keller 03 -038 Page 7 Keller has served as a Supervisor in Upper Nazareth Township since January of 2003. Based upon Statements of Financial Interests that Keller filed as a candidate and supervisor, she has received income in excess of $1,300 inter alia from Keller Consulting Engineers, Inc. (KCE) and holds the position of corporate secretary for KCE. During the regular reorganizational meeting of the board of supervisors, there is a process for making appointments for non - elected township officials, including the sewage enforcement officer (SEO). During the process, after an individual is nominated by a supervisor, a discussion occurs as to qualifications followed by a motion and vote. The individual is either appointed or not appointed to the position depending upon the outcome of the vote. Keller's spouse, Donald, is the president of KCE. KCE, which provides broad engineering services, has served as the township SEO for the six year period immediately prior to 2003. Donald Keller forwarded a letter to the township in November 2002 expressing his company's interest in continuing as SEO for 2003. At the January 6, 2003, re- organizational meeting, which was Keller's first meeting as an elected supervisor, one supervisor nominated Joseph Black and another nominated Donald Keller for the SEO position. A discussion ensued which included concerns about Donald Keller as the SEO, given the swearing in of his spouse as a supervisor on that day. A vote was taken where two supervisors voted for Black and three supervisors, including Keller, voted for Donald Keller as the SEO. The minutes of January 6, 2003, reorganizational meeting were approved at the subsequent meeting in February with no additions, deletions or corrections to the minutes. Keller was present at that meeting where the minutes were reviewed and adopted. As to the SEO, the township plays no role in setting the fees which are set by the SEO himself for services rendered. The SEO bills the township for the services rendered and then the township subsequently makes payment. The 2003 fee schedule for services provided by KCE is set forth in Fact Finding 16. As to the payments issued to KCE by the board of supervisors in 2003 for SEO related services, Keller abstained from voting. See, Fact Findings 18, 20. KCE declined to seek reappointment as the township SEO for the 2004 calendar year. 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 that Keller unintentionally violated Section 1103(a) of the Ethics Act when she voted to appoint a business, Keller Consulting Engineers, with which she and her husband are associated, to the position of sewage enforcement officer; and did not violate Section 1103(a) regarding approval of payments to her husband as she abstained from all such votes. Keller agrees to make payment in the amount of $500.00 to the Commonwealth of Pennsylvania through this Commission within thirty (30) days of the issuance of the final adjudication in this matter. In applying Section 1103(a) of the Ethics Act to the stipulated facts in this case, there were uses of authority of office on the part of Keller related to the appointment of Donald Keller /KCE as the township SEO. In particular, at the January 2003 reorganizational meeting of the board of supervisors, Keller participated and cast the deciding vote to appoint Donald Keller of KCE as the township SEO. Such action was a use of authority of office. See, Juliante, Order 809. The use of authority of office resulted in a private pecuniary benefit consisting of the payments that KCE received for providing SEO services to the township. Lastly, the private pecuniary benefit inured either to Donald Keller who, as Keller's spouse, is a member of her immediate family or to KCE which is a business with which Keller and her spouse are associated, as that term is defined in the Ethics Act. Accordingly, Keller unintentionally violated Section 1103(a) of the Ethics Act when she voted to appoint Keller Consulting Engineers, a business with which she and her spouse are associated, to the position of township sewage enforcement officer. See, Anthony, Order 1179. Keller 03 -038 Page 8 Turning to the matter of the approval of payments for KCE, the record reflects that Keller abstained as to such actions. We have held that abstention does not constitute a use of authority of office. Further, without a use of authority of office there can be no violation of the Ethics Act. See, Messick, Order 1155. Accordingly, Keller did not violate Section 1103(a) of the Ethics Act when she abstained from votes to approve payments to her husband for services provided by KCE in that there was no use of authority of office on the part of Keller. 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, Keller is directed to make payment in the amount of $500.00 to the Commonwealth of Pennsylvania through this Commission within 30 days of the mailing date 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. Keller, as an Upper Nazareth Township Supervisor, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Keller unintentionally violated Section 1103(a) of the Ethics Act when she voted to appoint Keller Consulting Engineers, a business with which she and her spouse are associated, to the position of township sewage enforcement officer. 3. Keller did not violate Section 1103(a) of the Ethics Act when she abstained from votes to approve payments to her spouse for services provided by Keller Consulting Engineering in that there was no use of authority of office on the part of Keller. In Re: Carol Keller ORDER NO. 1314 File Docket: 03 -038 Date Decided: March 11, 2004 Date Mailed: March 26, 2004 1. Keller, as a an Upper Nazareth Township Supervisor, unintentionally violated Section 1103(a) of the Ethics Act when she voted to appoint Keller Consulting Engineers, a business with which she and her spouse are associated, to the position of township sewage enforcement officer. 2. Keller did not violate Section 1103(a) of the Ethics Act when she abstained from votes to approve payments to her spouse for services provided by Keller Consulting Engineering in that there was no use of authority of office on the part of Keller. 3. Per the Consent Agreement of the parties, Keller is directed to make payment in the amount of $500.00 to the Commonwealth of Pennsylvania through this Commission within 30 days of the mailing date 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