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HomeMy WebLinkAbout1324 ZeppIn Re: Michael Zepp 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 -051 Order No. 1324 6/8/04 6/16/04 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Act, Act 9 of 1989, P.L. 26, 65 P.S. §§ 401 et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., by the above -named Respondent. At the commencement of its investi9ation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investi9ation the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was not filed and a hearing was deemed waived. The record is complete. 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Zepp 03 -051 Page 2 I. ALLEGATION: That Michael Zepp, a (public official /public employee) in his capacity as a Supervisor for Hamilton Township, Adams County, violated Section 1103(a) and 1103(f) of the Public Official and Employee Ethics Law (65 Pa.0 S. §1101 et seq.) when he used the authority of his office for a private pecuniary benefit of himself and /or a member of his immediate family when he took actions as a township supervisor resulting in the hiring of his father and wife for positions with the township without an open and public process; and when he participated in actions of the board of supervisors to set compensation and authorize payments to members of his immediate family. II. FINDINGS: 1. Michel Zepp has served as a Hamilton Township, Adams County Supervisor since January 4, 2000. a. Hamilton Township is a Second Class Township. 2. The Hamilton Township Board of Supervisors takes action annually during reorganization meetings to fill township positions. a. The township hires various employees including a full -time secretary/treasurer, part -time road crew and an assistant secretary. 3. During the 2000 reorganization meeting of the board of supervisors, the position of assistant secretary was not filled. 4. Minutes from the Hamilton Township Board of Supervisors January 4, 2000, Reorganization Meeting confirm that the board approved a motion that an Assistant Secretary was not necessary. a. Zepp seconded and voted on the motion. 5. Sharon Bruckart resigned as the township's secretary /treasurer after the January 4, 2000, reorganization meeting. a. Bruckart's resignation left the township without a secretary or assistant secretary. b. No assistant secretary was appointed during the January 4, 2000, reorganization meeting. 6. Bruckart's resignation created the need for the township to fulfill the day to day duties of secretary /treasurer. 7. Joanna Zepp is the wife of Michael Zepp. 8. In or about February 2000, Joanna Zepp began performing duties as an assistant secretary for Hamilton Township following Bruckart's resignation. a. There was no vote of the board of supervisors approving the hiring. 9. As a result of discussions among the board of supervisors, Joanna Zepp was asked to be assistant secretary in February 2000. a. Michael Zepp was out of town when the initial discussions with Joanna Zepp occurred. Zepp 03 -051 Page 3 b. Joanna Zepp's primary duty as assistant secretary related to the preparation of meeting minutes. 10. Joanna Zepp was asked because of her prior municipal secretary experience with Latimore Township. a. Joanna Zepp also previously answered questions Sharon Bruckart would have regarding township operations. 11. Both Supervisor O'Brien and Miller concurred with the hiring of Joanna Zepp to handle secretarial functions as the township searched for a new secretary /treasurer. a. Barbara Webb became the new secretary /treasurer effective March 2000. b. Joanna Zepp assisted training Webb with the township's computer system after Webb's hiring. 12. Joanna Zepp was reappointed as assistant secretary by board votes during reorganization meetings held on January 2, 2001; January 7, 2002; and January 6, 2003. a. Michael Zepp participated in each of these votes which passed 3 -0. b. Zepp seconded the motion to hire his wife on January 6, 2003. c. Only two supervisors were present at the January 6, 2003, reorganization meeting. 13. Joanna Zepp was utilized to perform secretarial duties for Hamilton Township on an "as-needed" basis when the regular secretary was unavailable. a. Zepp's duties related primarily to recording meeting minutes. b. Secretary /treasurer Barbara Webb would identify dates and times she needed Joanna Zepp's assistance. c. Michael Zepp did not set the work schedule of Joanna Zepp. 14. Hamilton Township financial records include W -2 wage and tax statements which reflect the following annual gross wages were paid to Joanna Zepp for secretarial duties: a. 2000 2001 2002 2003 Total $ 626.00 $ 215.00 $ 128.75 $ 316.75 $ 1,286.50 15. Joanna Zepp's wages were paid on a regular basis along with other township employee payroll. a. Employee payroll is prepared by Secretary /treasurer Barbara Webb. b. Webb maintains all payroll records and personally prepares payroll checks for signature. Zepp 03 -051 Page 4 c. Payroll checks are typically signed by Webb in her official capacity as secretary /treasurer and at least one supervisor. d. All three supervisors have signature [sic] on township financial accounts. e. Employee payroll does not go before the board of supervisors for approval. f. Approval is given as a result of an executed check. g. No hourly wage was set as part of meeting minutes. h. Zepp received $10.00 per hour. Other township employees were compensated at the rate of $12.00 per hour at that time. 16. Hamilton Township financial records confirm that twenty -six (26) payments were issued to Joanna Zepp for duties related to the position of assistant secretary between March 10, 2000, and September 29, 2003. 17. Michael Zepp in his official capacity as a Hamilton Township Supervisor signed the front side of eight of the payroll checks issued to his wife Joanna Zepp. 18. Francis Zepp is the father of Michael Zepp. 19. On or around July 2001 Michael Zepp hired his father, Francis Zepp as a building and ground maintenance employee. a. Prior to July 2001 this position did not exist in Hamilton Township. b. There was no vote of the board of supervisors authorizing the hiring of Francis Zepp. 20. Hamilton Township did not advertise for the position of Building & Grounds Maintenance employee. a. Francis Zepp was hired to this position as a result of the efforts of his son, township supervisor Michael Zepp. b. No other individuals were considered for this position. 21. Michael Zepp contacted Supervisors O'Brien and Miller expressing his interest in hiring his father, Franciz Zepp, to this position. a. Neither O'Brien or Miller objected to the hiring. 1. Miller agreed to the hiring. b. O'Brien privately questioned whether it was proper to hire a supervisor's relative but never voiced any concerns. c. Zepp contacted the other two supervisors prior to his father performing any duties for the township. 22. Michael Zepp created a job description for the position of building and grounds maintenance employee which included the following specific duties and wages. Zepp 03 -051 Page 5 a. Duties and Wages: 1. Vehicle Cleaning a Cld wash h and b ean Clean an and wash ve police icles vehicles equipment c Clean garages work areas 2. Ground Care Taker (a) Mow/Trim and maintain flower beds 3. Hours (a) No more than 10 hours per week 4. Wages (a) $10.00 per hour b. The list of job duties is signed by Supervisors Douglass Miller and Michael Zepp. c. No date is listed on this job description. 23. Duties for the building and grounds maintenance employee were previously completed by the township's road laborers. a. Township road department employees were paid at a rate of $12.50 per hour while Francis Zepp received $10.00 per hour to perform these same services. b. Michael Zepp asserted during an interview with an Ethics Commission investigator that his father was used to save money, free up other township employees to work primarily on township roads and give his father something to do. 24. Services provided by Francis Zepp included washing and interior cleaning of police vehicles. a. Police operating expenses are shared between Hamilton Township and Abbottstown Borough. 25. Francis Zepp's wages as the Hamilton Township Building and Ground Maintenance employee were paid in the same manner as other employee payroll. a. Francis Zepp provided secretary /treasurer Barbara Webb with atotal number of hours worked. b. Francis Zepp was able to determine the dates and times he would work consistent with limits established in his job description. c. Barbara Webb would prepare Francis Zepp's payroll checks for signature. 26. Hamilton Township financial records include W -2 wage and tax statements which reflect the following annual gross wages were paid to Francis Zepp for duties performed as the Building & Grounds maintenance employee: a. 2001 $ 647.00 2002 $ 614.26 2003 $ 1 655.50 Total $ 2,916.76 Zepp 03 -051 Page 6 27. Hamilton Township financial records confirm that thirty -seven (37) payments were issued to Francis Zepp for duties related to the position of Building and Ground maintenance employee between July 10, 2001, to September 29, 2003. 28. Michael Zepp in his official capacity as a Hamilton Township Supervisor signed the front side of eight payroll checks issued to his father Francis Zepp which totaled $679.97. III. DISCUSSION: At all times relevant to this matter, the Respondent, Michael Zepp, hereinafter Zepp, 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 Michael Zepp, as a Hamilton Township Supervisor, violated Sections 1103(a) and 1103(f) of the Ethics Act when he took actions as a township supervisor resulting in the hiring of his father and wife to positions with the township without an open and public process; and participated in actions of the board of supervisors to set compensation and authorize payments to members of his immediate family. 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. Section 1103(f) of the Ethics Act imposes certain restrictions as to contracting. Section 1103(f) of the Ethics Act provides: Section 1103. Restricted activities Zepp 03 -051 Page 7 (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). Section 1103(f) of the Ethics Act provides in part that no public official /public employee or spouse or child or business with which he or the spouse or child is associated may enter into a contract with his governmental body valued at five hundred dollars or more or any subcontract valued at five hundred dollars or more with any person who has been awarded a contract with the governmental body with which the public official /public employee is associated unless the contract is awarded through an open and public process including prior public notice and subsequent public disclosure. 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. Zepp has served as a Hamilton Township supervisor in Adams County since January of 2000. After the January 2000 reorganizational meeting, the township secretary/ treasurer resigned leaving the township without a secretary or assistant secretary. In February of 2000, Joanna Zepp, Zepp's spouse, began performing the duties of assistant secretary for the township. Zepp was out of town when the board of supervisors asked Joanna Zepp to be assistant secretary. Joanna Zepp was asked to fill the position because of her prior municipal secretary experience in another township. The board of supervisors took no vote to approve the hiring of Zepp's spouse. When the township board hired a new secretary effective March of 2000, Joanna Zepp assisted in her training on the township computer system. Joanna Zepp was utilized by the township on an as- needed basis when the regular secretary was unavailable. Joanna Zepp was reappointed as board assistant secretary during the January reorganizational meetings for 2001 -2003. In all three years, Zepp participated in the unanimous board decision to reappoint his spouse. In 2003, Zepp also seconded the motion to hire his spouse. The compensation Joanna Zepp received from the township for the years 2000 -2003 is delineated in Fact Finding 14. Although other township employees were compensated at the rate of $12.00 per hour, Joanna Zepp received $10.00 per hour. Of the 26 payments that were issued to Joanna Zepp from the township, there were 8 instances where Zepp, in his official capacity as township supervisor, signed checks payable to his spouse. Zepp 03 -051 Page 8 In addition to the above, Zepp hired his father, Francis Zepp, as a building ground maintenance employee on or about July 2001. Although there was no vote by the board of supervisors authorizing hiring of Francis Zepp, the other two supervisors knew of Zepp's action in that Zepp contacted them about the hiring of his father to the position. Neither supervisor objected to the hiring. Although one supervisor agreed with the hiring, the other questioned the propriety of such action by Zepp in hiring an immediate family member. Zepp created ajob description for the building and grounds maintenance employee with a maximum of 10 hours per workweek and wages at $10.00 per hour. Although the work for building and grounds maintenance was previously done by township employees who were paid at the rate of $12.50 per hour, Francis Zepp received less for performing the same services. Francis Zepp's wages as building and grounds maintenance employee were processed in the same fashion as for all other employees. The compensation that Francis Zepp received for years 2001 -2003 is delineated in Fact Finding 26. Of the 37 payments that Francis Zepp received for performing the duties of building and grounds maintenance employee, Zepp signed 8 of the checks payable to his father. 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. The Consent Agreement proposes that this Commission find: "a. That an unintentional violation of Section 1103(a) of the Ethics Act occurred when Zepp participated in the hiring process of his wife and father to part -time positions within Hamilton Township. b. That an unintentional violation of Section 1103(f) of the Ethics Act occurred when such contracts were in excess of $500 and awarded without an open and public process." In addition, Zepp agrees to pay $150.00 to the Commonwealth of Pennsylvania and forwarded to this Commission within thirty (30) days of the mailing of this Order. In applying the provisions of Section 1103(a) of the Ethics Act to the stipulated facts, there were uses of authority of office on the part of Zepp. As to his spouse Joanna, Zepp participated in the actions at the reorganizational meetings in January of 2001 -2003 to reappoint his spouse. He also seconded a motion to hire his spouse at the January 2003 reorganizational meeting. Finally, Zepp signed some of the checks that were issued to his spouse for compensation as the township assistant secretary. Such actions were uses of authority of office. Similarly, as to Zepp's father, Zepp actually made the decision to hire his father after consulting with the other two supervisors. Zepp developed the job description and set the wages for his father's position. Lastly, Zepp participated by signing some of the checks that were issued in payment to his father as the township building and grounds maintenance employee. All such actions were uses of authority of office. See, Juliante, Order 809. The uses of authority of office by Zepp resulted in private pecuniary benefits to his spouse and father. Joanna Zepp as Zepp's spouse, and Francis Zepp, as Zepp's father, are members of his immediate family as that term is defined under the Ethics Act. See, 65 Pa.C.S. § 1102. Accordingly, Zepp unintentionally violated Section 1103(a) of the Ethics Act when he used the authority of office as to the hiring of his spouse and father for part -time employment positions with the township. See, Stoner, Order 1304. Turning to Section 1103(f) of the Ethics Act, the stipulated facts reflect the hiring of both Zepp's spouse and father to part -time positions with the township. Since the restrictions as to contracting only apply to the public official, spouse, child or business with which associated, our inquiry under Section 1103(f) must be limited to the hiring of Zepp's spouse. The record before us reflects that when Joanna Zepp was hired in 2000, there was no Zepp 03 -051 Page 9 advertisement for the position and the wages that Joanna Zepp received were in excess of $500.00. Accordingly, Zepp unintentionally violated Section 1103(f) of the Ethics Act when his spouse was hired to a part -time position for the township with wages in excess of $500.00 where the position was not advertised through an open and public process. See, Confidential Opinion 02 -004. 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, Zepp is directed to pay $150.00 through this Commission to the Commonwealth of Pennsylvania 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. Zepp, as a Hamilton Township Supervisor, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Zepp unintentionally violated Section 1103(a) of the Ethics Act when he used the authority of office as to the hiring of his spouse and father for part -time employment positions with the township. 3. Zepp unintentionally violated Section 1103(f) of the Ethics Act when his spouse was hired to a part -time position with the township with wages in excess of $500.00 where the position was not advertised through an open and public process. In Re: Michael Zepp ORDER NO. 1324 File Docket: 03 -051 Date Decided: 6/8/04 Date Mailed: 6/16/04 1. Zepp, as a Hamilton Township Supervisor, unintentionally violated Section 1103(a) of the Ethics Act when he used the authority of office as to the hiring of his spouse and father for part -time employment positions with the township. 2. Zepp unintentionally violated Section 1103(f) of the Ethics Act when his spouse was hired to a part -time position with the township with wages in excess of $500.00 where the position was not advertised through an open and public process. 3. Per the Consent Agreement of the parties, Zepp is directed to make payment of $150.00 to the Commonwealth of Pennsylvania through this Commission within 30- days of the mailing of the 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