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HomeMy WebLinkAbout1328 FishIn Re: Pamela Fish 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 02- 084 -C2 Order No. 1328 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 filed and a hearing was 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Fish 02- 084 -C2 Page 2 I. ALLEGATION: That Pamela Fish, a ublic official /public employee) in your capacity as Secretary/ Treasurer for Elkland Boroug , Tioga 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, including but not limited to utilizing borough cash for your personal use by submitting IOU's to receive cash and subsequently not reimbursing the borough for the funds used; when you obtained cash from the borough for your personal use; when you issued checks to the borough to receive cash and then failed to negotiate the checks for extended periods of time; and when you withdrew funds from the borough wage assessment account in excess of amounts deposited on your behalf. II. FINDINGS: 1. The following includes Fish's duties and responsibility as secretary /treasurer. 1. Attend all meetings of the Elkland Borough Council and keep the required minutes for said proceedings 2. Record minutes, resolutions and ordinances in the books in the required time period 3. Advertise notices for meetings, hearings, job openings, bid requirements or any other public notification as legally required or specified by Elkland Borough Council 4. Prepare all purchase orders for procurement of all materials, supplies, equipment or any other item required by the Elkland Borough in accordance with borough's purchasing policy 5. Maintain an accurate time and attendance record of each employee of Elkland Borough who is required to submit time and attendance records 6. Prepare a weekly payroll for employees of the Elkland Borough 7. Maintain an accurate accounting of all payroll deductions by employees 8. Maintain an accurate reporting of all payroll deductions to each federal, state and /or county agency as prescribed by law 9. Maintain an accurate financial record of all borough accounts including a monthly statement of debits and credits along with a month ending status. Borough accounts include all line items defined within the general fund, water fund, sewer fund, specific reserve funds and each specific active grant the Elkland Borough is responsible for the administrative of 10. Maintain an accurate reconciliation of all borough financial assets, including but not limited to checking accounts, certificate of deposits and money market funds 11. Prepare and submit all financial reports as defined by the finance committee 12. Prepare and submit all federal, state and local reports as defined by the controlling department and /or agency 13. Prepare an agenda for each scheduled council meeting with the approval of the borough's council president 14. Distribute the planned agenda to all council members along with the appropriate attachments, within three days prior to a scheduled meeting except for when a special meeting has been called 15. Prepare a proposed budget for each year under the direction of the borough's finance chairman 16. Review the current status of this year's operating budget with the borough's finance chairman on a monthly basis and point any concerns regarding either current expenditures or revenues 17. Assist the borough's auditor in the audit of borough accounts in the preparation of audit reports 18. Administer all revenue sources, including but not limited to liquid fuel allocations, public utility tax refunds, interests earned on Elkland Borough financial accounts, MHP rents as well as fees accessed by the Elkland Fish 02- 084 -C2 Page 3 Borough for permits, licenses, parking, swimming pool or other services 19. Generate backups for the general accounting system, files per the required schedule 20. Perform other related duties as required by the Elkland Borough Council 2. Fish, in her capacity as secretary /treasurer, supervises the work product of the assistant clerk/secretary. 3. Wendy Graham has served as the borough assistant clerk/secretary since December 1988. a. Graham had previously been employed by the borough in 1988. 4. Graham's duties as assistant clerk/secretary include the following: 1. Perform clerical bookkeeping functions required to support the water and sewer billing system. All reference to the water and sewer billing systems include requirements for solid waste billing 2. Perform data entry functions required to support the water and sewer billing system 3. Prepare custom billings for water and sewer system in accordance with the required monthly schedule 4. Prepare customer late billing notices for water and sewer system in accordance with required monthly schedule 5. Prepare customer shut -off notices for water and sewer systems in accordance with the required monthly schedule 6. Possess customer payments for water and sewer system billings on an accurate and timely basis 7. Generate standard reports as scheduled from the water and sewer system 8. Generate backups for the water and sewer system files per the required schedule 9. Type or otherwise prepare letters, forms other correspondence 10. Address, post and deliver mail to the mailbox or post office 11. Perform other related duties as required by the administrative secretary/ treasurer 5. Wendy Graham's job duties include issuing bills for water, sewer and trash services. a. Pamela Fish supervises these activities. 6. Residents making utility payments can either mail the payment to Elkland Borough; drop payments in an overnight drop box; or physically make the payment at the Elkland office. a. Approximately fifty (50%) percent of Elkland residents pay their utilities in cash, with the remaining fifty (50%) percent paying with check or money order. 7. Fish is responsible for accounts receivable from Elkland Borough residents, which includes the following: a. Water receipts; trash receipts; sewer receipts; gravel and soil sales; mobile home park rents; parking fines; swimming pool fees; and general fund deposits. b. Fish is responsible for balancing cash received with cash on hand justifying receipts with utility billings issued to residents. c. Fish is responsible for depositing of funds into the borough's general fund bank Fish 02- 084 -C2 Page 4 account of Elkland Borough at Citizens and Northern Bank, located a block away from the borough office. 8. Fish receives payments from 8:00 a.m. to 4:30 p.m., the regular hours of the borough offices. 9. Fish and Graham are the only individuals with access to borough cash and the borough safe, each possessing a key to access the safe. a. If Fish or Graham are out of the office for any particular reason, the cash drawer is secured in the safe, limiting access to either Graham or Fish. 10. Cash payments received for utility payments (water, sewer, trash) are to be deposited daily in the borough's general fund account. a. Fish has not ensured that daily deposits are made. b. Cash received is left in the borough cash register for extended periods of time before deposits are made by Fish. 11. Some Elkland Borough employees have "borrowed" funds from the General Fund accounts, utilizing paper IOU's, which are placed in the register drawer until paid. a. This type of borrowing has not been approved by council. b. Fish and Councilman Richard Snyder are the borough officials who have most frequently utilized IOUs to obtain cash. 12. Fish is responsible for maintaining the IOU slips and tracking the repayment and amounts paid relative to IOUs. a. Fish will remove monies from the cash register for these IOU's, giving the money to employees who request them. 13. Elkland Borough employees also have obtained cash from the cash drawer by writing checks made payable to the Borough of Elkland in order to receive cash advances. a. The "check practice" has been in effect for approximately 15 years. b. Fish has the responsibility to track the payments, and checks written to Elkland Borough. c. Fish will receive checks made payable to cash or the borough and remove monies from the cash register for these checks, giving the cash to the employee writing the check. d. This action has not been approved by council. e. Fish is the borough official who has most frequently obtained cash in this manner. 14. Elkland Borough also established a program where employees can opt to participate in a wage assignment program with their borough payroll. a. Employees can opt to have an amount of money garnished from their weekly paychecks. b. These amounts garnished can be utilized to pay utilities or other borough associated bills. Fish 02- 084 -C2 Page 5 c. The garnished wages do not receive interest and are not matched by Elkland Borough funds. 1. The wage assessment is similar to an interest free savings account. d. The amounts deducted are maintained in the borough general fund. 15. Donald Carmen, Elkland Borough Council President or Council Vice - President William Schoonover must sign checks issued to employees as part of the wage assignment program. a. Carmen or Schoonover must sign all checks prepared by Fish. 1. The checks require the signature of both Council President or Vice President and Fish. b. Carmen relies on Fish that check amounts accurately reflect amounts available to the employees. c. Payments are made from the borough general fund and require the approval of council. 16. Employees can only withdraw monies equaling monies available in their respective accounts. 17. Since at least 2000 Pamela Fish has engaged in a pattern of activity wherein she has utilized funds from the borough cash drawer and the borough general fund for her personal use. a. Fish's use of borough funds for her personal use has included, but has not been limited to the following: 1. Receiving cash from the borough cash drawer, failing to maintain records, and not reimbursing the borough. 2. Writing checks payable to cash or the borough; taking cash from the borough in the amount of the check written; and then not cashing the checks for extended periods so that the borough is not reimbursed. 3. Accessing the wage assessment account by issuing checks to herself in excess of amounts in her account. 18. Since 2000, Mark Fish has experienced periods of unemployment resulting in him obtaining employment with Corning Glass in or about October 2000. a. Mark Fish has been furloughed from Toshiba on occasions in 2000 and from Corning on occasion since October 2000. b. The periods of unemployment have caused financial instability for the Fish family. 19. Since December 1999, the Fish family expenses have equaled or exceeded the family income which has required the infusion of cash to cover expenses. a. Since December 1999, total expenditures from the Fish bank account, has exceeded deposits by $2,286.00. b. During the period of time from July 2000 to June 2003, Fish had overdrawn the Fish 02- 084 -C2 Page 6 account a total of forty (40) times. 20. The bulk of the cash deposits to the Fish account have been made by Pamela Fish utilizing borough funds. 21. Between January 2000 and May 2003, Fish wrote checks payable to cash or to Elkland Borough which she would endorse and cash at the borough. a. Fish would obtain cash from the borough cash drawer, which she was responsible for maintaining. b. Fish's checks would be placed in the drawer. c. Fish would not deposit the checks to the borough general fund at the time she issued the checks. d. Fish would delay cashing the checks because of a lack of funds available in her personal account. 22. Pamela Fish wrote numerous checks to cash for Elkland Borough which were then negotiated to Citizens & Northern Bank in an amount totaling $4,315.13. 23. On thirty -nine (39) occasions when cashing personal checks with the borough, Fish did not have the funds available in her personal bank account to cover the amounts of the checks. a. Fish would not deposit these checks to the borough general fund for days or months after they were written. 24. Pamela Fish cashed numerous checks using Elkland Borough funds at times which she did not have funds in her personal account, which totaled $2,125.00. 25. Fish issued and cashed personal check number 1845 in the amount of $110.00 at the borough on April 25, 2000. a. On April 25, 2000, the same day Fish cashed the check using borough funds, she made a $110.00 deposit to her personal account. b. At the time of the deposit, the personal account balance was - $75.73. c. Check number 1845 was not deposited to the borough general fund until May 15, 2000. 26. The total of cash Fish received by writing checks to Cash or Elkland Borough in the between January 2001 and May 2003, was $4,315.33. a. Of that amount, $2,125 was when the account was overdrawn. 27. The checks described in Finding No. 44 issued by Fish occurred during normal business hours of Citizens & Northern Bank. a. Citizens & Northern Bank is open during the same hours as Elkland Borough. b. Citizens & Northern Bank is one block away from the Elkland Borough office. c. Fish could have utilized her MAC card, or personally withdrawn monies from her account. d. Fish did not directly utilize the bank or MAC card because she did not have the Fish 02- 084 -C2 Page 7 funds available in her personal account. 28. An Elkland resident purchased a black leather woman's handbag belonging to Fish at the yard sale. 29. Upon taking the purse home, the purchaser found personal documents in the hand bag belonging to Pamela Fish. 30. Located in a side pouch of the hand bag were the following items: a. Two (2) non - negotiated checks payable to the Borough of Elkland. b. Three (3) non - negotiated checks payable to the order of Cash. c. Five (5) IOU's due and owing to Elkland Borough, printed on the back of Elkland Borough water receipts. d. Two (2) adding machine tapes with figures added and subtracted in no particular order. 31. The following items were found in the hand bag. Checks Check No. Date Amount Payable To Si ned 1992 08/15700 $ 20.00 Cash a h 2015 08/25/00 $ 375.00 Elkland Boro Pamela Fish 1888 05/18/00 $ 200.00 Cash Pamela Fish 2070 10/10/00 $ 550.00 Elkland Boro Pamela Fish 2055 09/29/00 $ 100.00 Cash Pamela Fish IOUs Amount Date Person $ 40.00 0872700 aim $ 40.00 11/16/00 Pam $ 20.00 10/17/00 Pam $ 50.00 No Date Pam $ 60.00 No Date Pam 32. The checks discovered in the purse were original checks that have never been negotiated by Citizens & Northern Bank. 33. On or about the date on four of the unnegotiated checks, a corresponding cash deposit was made by Fish to her personal account no. 1171629. Check Date Check Amount Date of Cash Deposit Amount of Deposit 05/18/00 $200.00 05/17/00 $100.00 08/25/00 $375.00 08/24/00 $320.00 09/29/00 $150.00 09/26/00 $150.00 10/10/00 $550.00 10/11/00 $550.00 Total $1,275.00 $1,120.00 34. Fish was writing checks payable to cash and the borough during this time period, and thereafter taking borough funds for personal use. 35. During the period of time from December 1999 to May 2003 when Fish was cashing checks drawn on her personal account using borough funds, and obtaining cash by writing IOUs, she also was making cash deposits to her personal bank account. Fish 02- 084 -C2 Page 8 a. Cash deposits totaling $6,454.00 were made during this time to the account. 36. Cash deposits were made to Pamela Fish's account between December 1999 and May 2003 in the total amount of $6,454.00. 37. The source of the cash deposits was not identified in bank statements. a. Cash deposits totaling $620.00 in April 2000 and $759.00 in July 2000 occurred while Mark Fish was unemployed. b. Fish was writing IOUs to the borough during this period and obtaining cash and not maintaining records of any repayments. 38. On the following dates from March 2000 through May 2003 when Fish was making cash deposits to her account, the account was in a negative balance. Date Deposit Balance 04/11/00 $ 260.00 -$ 50.70 05/17/00 $ 100.00 -$350.00 07/13/00 $ 150.00 $ 0.00 08/24/00 $ 220.00 -$ 283.75 12/12/00 $ 100.00 -$ 75.00 12/04/01 $ 470.00 - $116.84 05/29/02 $ 50.00 -$ 72.49 11/07/02 $ 188.00 -$ 11.40 01/06/03 $ 500.00 -$408.23 05/19/03 $ 260.00 -$ 30.86 39. Fish regularly withdrew cash from the borough cash drawer in the form of IOUs from 2000 through May 2003. a. There is no record of Fish ever reimbursing the borough. 40. From 2000 to May 2003, Wendy Graham, the Elkland Borough Assistant clerk would, at times, provide assistance to Fish by providing her with cash from the general fund cash drawer in lieu of a personal check or IOU submitted by Fish. a. There is no record of Fish ever reimbursing the borough. b. Graham did not maintain records of the amounts given to Fish. 41. As of August 22, 2003, the Elkland Borough cash draw was short $4,799.56. a. IOUs for other employees were accounted for. b. There is no record of Fish's IOUs or any payment records. 42. Fish withdrew funds for personal use from the Borough General Fund as part of the Wage Assignment Program. a. The funds would be withdrawn by Fish issuing a check to herself from the general fund. b. The amount of the checks would be determined by Fish. c. Fish and Council President Donald Carmen signed the checks. d. The payments were not approved by the borough council. Fish 02- 084 -C2 Page 9 43. Fish would issue Wage Assignment checks to herself in excess of the amounts she had deposited to the program. a. Between February 2000 and October 2003 Fish used her public position to issue Wage Assignment payments to herself totaling $1,776.89. b. These payments were issued at times when Fish did not have the necessary funds in her wage assignment account available to cover the amounts of the checks. 44. Wage Assignment payments issued by Pamela Fish to herself confirm checks totaling $1,594.89 when the balance of Fish's Wage Assignment Account balance was low or in the negative. Date Amount Balance 02714700 $ /0.00 $ /4.38 05/11/00 $ 60.00 -$ 12.56 07/20/00 $ 71.89 -$ 340.54 05/30/00 $ 500.00 -$ 77.17 07/05/01 $ 175.00 -$ 466.66 09/05/01 $ 200.00 -$ 835.05 08/01/02 $ 200.00 -$ 338.82 01/31/03 $ 68.00 $ 68.80 04/29/03 $ 75.00 $ 76.15 05/16/03 $ 75.00 $ 76.15 06/30/03 $ 75.00 $ 76.15 10/14/03 $ 25.00 $ 25.15 45. On June 21, 2001, Fish authorized borough check no. 6133 payable to her in the amount of $500.00. a. The check was issued as part of the wage assignment program. b. Fish's balance in her Wage Assignment Account at the time the check was written was $13.34. c. After the check was cashed the wage assignment account balance dropped to (- $486.66). d. Check no. 6133 was not approved by council. 1. It is Fish's responsibility to ensure the payment was included on a bill list for council approval. e. Carmen confirmed signing other wage assignment checks for Fish but has no recollection of signing check no. 6133. 1. Carmen questioned the authenticity of his signature on this check. 46. Fish's wage assignment account balance reached a high of $835.05 in negative funds on September 5, 2001. a. Fish would repay the borough on a no- interest repayment plan as she had funds available to do so. b. This repayment and borough schedule was done without the knowledge or approval of council. Fish 02- 084 -C2 Page 10 47. Fish's Wage Assignment balance remained negative until November 14, 2002. a. Fish, who controlled the wage assignments for all employees, was the only borough employee with a negative balance. 48. Fish's use of her public position enabled her to manipulate borough funds for her personal use. a. From 2000 through May 2003 Fish regularly accessed the borough cash drawer to obtain cash by writing personal checks or issuing IOUs. b. Fish was responsible for documenting IOUs. 1. No records exist of Fish ever repaying the borough for funds received through the issuance of IOUs. c. No other borough employees issued IOUs to the extent of Fish. d. As a result of Fish not repaying the borough, the cash fund is short $4,799.56. 49. Fish used the Wage Assignment program to access borough funds to which she was not entitled. a. Fish received $1,594.89 in borough funds as a result of writing checks to herself. 1. Fish signed checks approving the payments. 50. Fish wrote checks to cash or to Elkland Borough and cashed them at the borough knowing that she did not have available funds in her bank account to cover the amounts of the checks. a. Fish avoided depositing the checks until she had available funds to cover the checks. b. Fish received cash from the borough totaling $2,125 at times when writing checks and not having funds available to cover the checks. 51. Fish received cash from Elkland Borough totaling $1,275 when she failed to negotiate checks payable to the borough after receiving cash. 52. From January 2000 to May 2003 when Fish was making cash deposits totaling $6,454 to her personal account, she had responsibility for the cash in the borough cash drawer. a. b. c. Fish did not ensure that deposits were timely made to cover her IOUs, uncashed checks and cash she was given from the drawer by Wendy Graham. Fish's failure to make timely deposits created an illusion that the cash drawer would balance by using daily deposits to balance past deficits. As a result, Fish was able to obtain $4,799.56 from the cash drawer which has not been repaid. 53. Pamela Fish has made contributions to her Wage Assessment Program such that it no longer has a negative balance. 54. Other employees of Elkland Borough engaged in the practice of withdrawing funds Fish 02- 084 -C2 Page 11 from the borough register in exchange for IOUs. 55. Pamela Fish asserts that the time of her making withdrawals from the borough register, that she believed the practice was authorized by members of borough council. 56. It is Pamela Fish's position that although she did violate the Ethics Act, she did not permanently convert to her own use or steal money from the Borough of Elkland or any other person. a. This is not the position of the Investigative Division. III. DISCUSSION: At all times relevant to this matter, the Respondent, Pamela Fish, hereinafter Fish, 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 Fish, as Secretary/Treasurer for Elkland Borough, violated Section 1103(a) of the Ethics Act when she utilized borough cash for her personal use by submitting IOU's to receive cash and subsequently not reimbursing the borough for the funds used; obtained cash from the borough for her personal use; issued checks to the borough to receive cash and then failed to negotiate the checks for extended periods of time; and withdrew funds from the borough wage assessment account in excess of amounts deposited on her behalf. 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. Fish 02- 084 -C2 Page 12 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. Fish, as secretary /treasurer for the borough, has various duties and responsibilities as delineated in Fact Finding 1. Fish also supervises Wendy Graham, the borough assistant clerk/secretary who inter alia issues the bills for water, sewer and trash services in the borough. In the borough, residents make utility payments by either mailing the payments, placing them in an overnight drop box, or making the payments at the borough office. Approximately 50% of the receipts are in cash with the remaining 50% through check or money order. Fish has the responsibility for the borough receivable accounts which include utility receipts, various sales, rents, fines, and fees. Fish and Graham are the only two individuals with access to the borough cash and safe. Each of them has a key to access the borough safe. Even though cash payments are to be deposited daily in the borough's general fund account, Fish has not ensured that deposits are made on a daily basis and has )eft cash in the borough cash register for extended periods of time before making deposits. Further, even though such action has never been approved by council, some borough employees, like Fish, have frequently "borrowed" borough funds and placed paper IOU's in the register drawer. Fish has the responsibility for maintaining the IOU's and tracking their repayments. In addition, some borough employees obtain cash from the drawer and write checks payabletotheborough for cash advances. Likewise, these other practices have never been approved by council. Fish is the borough official who most recently obtained cash in such a manner. The borough also has an established Wage Assessment Program whereby employees may have a portion of their weekly paychecks deposited into an interest free savings account for the purpose of paying their borough bills or utilities. If employees choose to withdraw monies from their accounts, they may not exceed the balance in their account. Since at )east 2000, Fish has engaged in a pattern of conduct where she has utilized funds from the borough cash drawer and general fund for personal use. Such activities entailed taking cash from the borough cash drawer, failing to maintain records, and failing to reimburse the borough; writing checks payable to cash or to the borough, taking cash from the borough and then not cashing her checks for extended periods so that the borough would not be reimbursed; and utilizing the Wage Assessment Account by issuing checks to herself in excess of the balance in her account. There were 39 instances where Fish cashed personal checks with the borough when she did not have funds available in her account to cover the amount of the checks. As noted, Fish did not deposit the checks to the boroughs general fund for days or months after they were written. Further, Fish cashed numerous checks using borough funds when she did not have funds in her personal account. In one instance on April 25, 2000, Fish cashed a personal check in the amount of $110.00 for which she made a deposit into her personal account that had a balance of - $75.73 at that time. Fish's check was not cashed until it was deposited on May 15, 2000. Fish received cash in the amount of $4,315.33 between January of 2001 and May of 2003 by writing checks to cash or the borough. Approximately half of those checks were written when her own bank account was overdrawn. When Fish's handbag was sold at a yard sale, the purchaser found personal documents consisting of two non - negotiated checks payable to the borough, three non - negotiated checks payable to the order of cash, five IOU's of Fish due and owing to the Borough, and two adding machine tapes. Details of the items found in the handbag are set forth in Fact Finding 31. As to four checks that had not been deposited into the borough account totaling $1,275.00, a cash deposit was made into Fish's personal account in the Fish 02- 084 -C2 Page 13 amount of $1,120.00 on or about that time. Since Fish was writing checks payable to cash and the borough, she was taking borough funds for personal use. In the relevant time period, Fish made cash deposits into her own personal account in the amount of $6,454.00. Although the source of the cash deposits is not identified in the bank statements, it occurred during a time period when Fish was writing IOU's to the borough, obtaining cash and not maintaining records of any repayments with the borough. Fish regularly withdrew cash from the borough cash drawer in the form of IOU's from 2000 to 2003. There is no record of Fish reimbursing the borough. At times the borough assistant clerk would provide assistance to Fish by providing her with cash from the general fund cash drawer. There was likewise no record of Fish ever reimbursing the borough. As of August 22, 2003, the borough cash drawer was short by $4,799.56. Fish also withdrew funds for her personal use from the borough general fund vis -a -vis the Wage Assessment Program. Withdrawals occurred by Fish issuing checks to herself from the borough fund which were not approved by borough council. Further, Fish issued the checks to herself in excess of the amount she had deposited in the program. During the relevant time period, Fish issued checks to herself totaling $1,594.89 from the Wage Assessment Account at times when her balance was low or at a negative figure. See, Fact Finding 44. In one particular instance on June 21, 2001, Fish authorized a borough check to herself in the amount of $500.00 as to the Wage Assessment Program when her balance in the account was only $13.34, thereby leaving a negative balance of - $486.66. That check was also not approved by council. Fish's Wage Assessment Account was the only one of all the accounts for borough employees that had a negative balance which continued until November of 2002. Fish was able to utilize borough funds and her Wage Assessment Account by virtue of her public position where she could obtain borough funds for her personal use. Fish's action of not reimbursing the borough for funds that she took resulted in the shortage of $4,799.56. Further as to the Wage Assessment Program, Fish's use of the borough funds resulted in her receipt of $1,594.89 as to which she was not entitled. Fish wrote checks to cash or to the borough knowing that she did not have a balance in her account to cover the amounts of the checks, for which she received $2,125.00. Fish also received cash in the amount of $1,275.00 as to checks payable to the borough that she failed to negotiate for cash she had taken. The actions of Fish occurred at a time when she and her family experienced financial difficulties. Fish has since made contributions to the Wage Assessment Program such that she no longer has a negative balance. 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 Fish violated Section 1103(a) of the Ethics Act when she converted Elkland Borough funds for her personal use and did not violate Section 1103(a) of the Ethics Act by her use of the Employee Wage Assessment Program, in that she made sufficient contributions to the same to balance her account. In addition, Fish agrees to pay $4,000.00 to the Commonwealth of Pennsylvania in twenty -six (26) equal installments of $150.00 and a twenty- seventh (27) installment of $100.00, with the first installment to be forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the mailing of this order. In applying the rovisions of Section 1103(a) of the Ethics Act, there were numerous uses of authority of office on the part of Fish. But for the fact that Fish was the secretary/ treasurer, she would not have been in a position to convert borough funds for personal use. Specifics of such actions were taking cash and putting IOU's in the borough cash drawer, writing checks payable to cash or the borough from her personal account when there were insufficient funds in her personal account to cover the checks, and writing checks to herself Fish 02- 084 -C2 Page 14 from the Wage Assessment Account when there was low or negative balances. As to the latter action, council prohibited taking funds that exceeded the balance in the account. All of these types of actions were uses of authority of office. See, Juliante, Order 809. These uses of authority of office resulted in pecuniary benefits to Fish consisting of her utilization of borough funds to which she was not entitled. The pecuniary benefits were private because they were not authorized in law. In this regard. the stipulated findings indicate that borough council never approved of such activities. Lastly, the private pecuniary benefits inured to Fish herself. Accordingly, Fish violated Section 1103(a) of the Ethics Act when she converted borough funds for personal use. See, ColeIla, Order 1130; Gulnac, Order 1135. Turning to the matter of the employee Wage Assessment Program, borough council authorized employees to withdraw funds from their particular accounts, not to exceed the existing balance. However, Fish made withdrawals from that account at times when it had less of a balance than the amount that she took out or in some instance, even negative balances. Such actions were uses of authority of office. The receipt of those funds were private pecuniary benefits in that her actions were not based upon authorizations of council. The private pecuniary benefits inured to herself. Such actions form the basis for a violation of Section 1103(a) of the Ethics Act. However, the Investigative Division as part of an overall settlement of the matter proposes no violation as to the allegation based upon the fact that Fish subsequently made contributions to the account so that it no longer has a negative balance. Hence, as part of the overall Consent Agreement in this case, this Order will reflect that Fish did not violate Section 1103(a) of the Ethics Act as to her use of funds in her employee Wage Assessment Program as to which she has made sufficient contributions to balance that account. 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. According! , Fish is directed to pay $4,000.00 to the Commonwealth of Pennsylvania in twenty -six (26 equal installments of $150.00 and a twenty- seventh (27) installment of $100.00, with the irst installment to be forwarded to the Pennsylvania State Ethics Commission within thirty (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. In this case, Fish was in the position, as borough secretary /treasurer, to convert borough cash or borough funds to her own personal use. Without a system in the borough for oversight, checks and balances, Fish had the opportunity and seized upon that opportunity to convert borough funds to her own personal use. The fact that Fish may have had financial difficulties in her family provided no basis or justification for taking borough funds. Fish violated the public trust in converting borough funds to personal use, contrary to both the spirit and letter of the Ethics Act. If Fish continues as secretary/ treasurer, we admonish her that her future actions must comport with the Ethics Act. Further, borough council needs to take the necessary steps to implement oversight and safeguards so that the situation does not reoccur. IV. CONCLUSIONS OF LAW: 1. Fish, as a Secretary/Treasurer for Elkland Borough, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Fish violated Section 1103(a) of the Ethics Act when she converted borough funds for personal use. 3. Per the Consent Agreement of the parties, Fish did not violate Section 1103(a) of the Ethics Act as to her use of funds in her employee Wage Assessment Program in that she has made sufficient contributions to balance that account. Fish 02- 084 -C2 Page 15 In Re: Pamela Fish ORDER NO. 1328 File Docket: 02- 084 -C2 Date Decided: 6/8/04 Date Mailed: 6/16/04 1. Fish, as a Secretary/Treasurer for Elkland Borough, violated Section 1103(a) of the Ethics Act when she converted borough funds for personal use. 2. Per the Consent Agreement of the parties, Fish did not violate Section 1103(a) of the Ethics Act as to her use of funds in her employee Wage Assessment Program in that she has made sufficient contributions to balance that account. 3. Per the Consent Agreement of the parties, Fish is directed to pay $4,000.00 to the Commonwealth of Pennsylvania in twenty -six (26) equal installments of $150.00 and a twenty- seventh (27) installment of $100.00, with the first installment to be forwarded to the Pennsylvania State Ethics Commission within thirty (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