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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11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
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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
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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
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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
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(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
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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