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HomeMy WebLinkAbout1329 HuberIn Re: Betsy Huber 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 -054 Order No. 1329 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Huber 03 -054 Page 2 I. ALLEGATION: That Betsy Huber, a (public official /public employee), in her capacity as a supervisor of Upper Oxford Township, Chester County, violated Section 1103(a) provisions of the State Ethics Act (Act 93 of 1998) 65 Pa.C.S. §1103(a) when she used the authority of her office for a private pecuniary gain of herself and /or a member of her immediate family when she participated in discussions and actions of the board of supervisors to appoint her husband as the township zoning officer; and when she participated as a member of the board in approving compensation for him. II. FINDINGS: 1. Betsy Huber has served as a Supervisor on the Upper Oxford Township (UOT), Chester County, Board of Supervisors since approximately 1992. a. Huber has served two 6 year terms as a Supervisor in UOT. b. Huber, as of January 1, 2004, started her third term (13 year) as a Supervisor in UOT. 2. Betsy Huber is the Vice - Chairperson of the UOT Board of Supervisors and has been Vice - Chairperson since 1994. 3. The UOT Board of Supervisors consists of three members. 4. Henry T. Huber is the husband of Betsy Huber. a. Henry T. Huber has served as the Zoning Officer for UOT since 1987. b. Henry T. Huber's service as Zoning Officer pre -dates Betsy Huber's tenure as a member as a member of UOT board of supervisors. c. The Zoning Officer position is annually appointed by the UOT board of supervisors. d. The position of Zoning Officer is a part -time salaried position within UOT. 5. The UOT Board of Supervisors annually makes appointments, during reorganization meetings, for various positions in the township, including zoning officer. a. Appointments are made by one motion for all positions. b. Included as part of the motion is the setting of rates of compensation. 6. Henry Huber has been re- appointed to the Zoning Officer position, for the last 13 years, at each January reorganization meeting of the UOT Board of Supervisors. a. Betsy Huber has voted, during her 13 year tenure, in favor of her husband (Henry Huber) being reappointed to the position of UOT Zoning Officer and setting his salary. 7. Minutes of the UOT Board of Supervisors Reorganization meetings confirm actions taken by Betsy Huber since 1998 regarding the appointment of Henry Huber as zoning officer and the setting of his compensation. January 5, 1998: Second motion and voted to appoint with compensation at $3,900 /year Huber 03 -054 Page 3 January 4, 1999: Made motion and voted to appoint at annual salary of $4,100 /year January 4, 2000: Second motion and voted to appoint at a salary of $4,250 /year January 2, 2001: Made motion and voted to appoint at a salary of $4,500 /year January 7, 2002: Made motion and voted to appoint at a salary of $4,750 /year January 6, 2003: Made motion and voted to appoint and set salary at $5,035 /year 8. Betsy Huber asserts that in an effort to comply with the Ethics Law, at each reorganization meeting of the UOT Board of Supervisors held in January, a motion was made, seconded and carried indicating that Huber would not approve bills for payments to Henry T. Huber, Zoning Officer. a. Huber asserts that as a result of these statements during the reorganization meeting, she attempted to place on the record her abstention in such matters dealing with Henry Huber prospectively throughout the year. 9. The UOT Board of Supervisors adopts a preliminary budget each October for the upcoming new year. a. The new budget is reviewed at each November meeting of the UOT Board of Supervisors. b. The new budget is adopted for the upcoming year at the December meeting of the UOT Board of Supervisors. c. Budgets include compensation for employees for the upcoming year. 10. The adoption of a budget for the upcoming year is determined by a vote of the UOT Board of Supervisors. 11. Betsy Huber, during her tenure, has always been present during the budget process meetings of the UOT Board of Supervisors. a. Betsy Huber, during her tenure, has always voted in favor of adopting the proposed budget for the upcoming year. 1. This includes setting of salaries for township employees. b. Increases in salary for Henry Huber, Zoning Officer, are included in the adopted budget for the upcoming year. 12. Since at least 1998 motions have been approved by the UOT board of supervisors that Betsy Huber would not approve bills for payment to Henry Huber, Zoning Officer. a. Motions unanimously approved by the board also include Supervisor Edward Hook. b. Motions state that Betsy Huber will not approve bills for payment to Henry Huber, Zoning Officer, and Edward Hook will not approve bills for payment to Churchmen's Machine Company and Nadine Hook, Tax Collector. 13. The UOT Secretary/Treasurer provides each Supervisor with a list of bills to be paid for the month at each meeting of the UOT Board of Supervisors. Huber 03 -054 Page 4 a. Betsy Huber receives a list of the bills due for the month at each monthly meeting of the UOT Board of Supervisors. 14. The UOT Supervisors review the bills list at each monthly meeting of the UOT Board of Supervisors. a. The bills list contains wages to employees and those holding appointed positions, including zoning officer. b. Wages due Henry Huber, Zoning Officer, are contained in the bills lists presented to Supervisors at the monthly meetings of the UOT Board of Supervisors. 15. Upon a vote approving to pay the monthly bills list, the Board of Supervisors sign their names on a section at the end of the list entitled: Order to Pay. a. Betsy Huber, as Vice - Chairperson, signs the Order to Pay at the end of each monthly bills list. 1. This includes payments to Henry Huber as zoning officer. 16. The appointment of and payment of bills to Henry Huber, Zoning Officer, by the UOT Board of Supervisors was approved by unanimous votes of 3 -0. In the event that Betsy Huber had not voted, the bills for payment to Henry Huber would still have been approved by the UOT Board of Supervisors by a vote of 2 -0. 17. By following the normal and customary practice of the UOT Board of Supervisors as indicated above, Betsy Huber asserts that she attempted to comply with the provisions of the Ethics Law. 18. Total wages paid to Henry Huber from 1998 through 2003 total $26,535.00. 19. Between 1998 and 2003 seventy -two (72) payroll checks were issued to Henry Huber, totaling $26,535.00 by UOT. a. Fifty -eight (58) checks were deposited into a bank account jointly held by Henry T. and Betsy E. Huber. 20. After Betsy Huber assumed office as UOT Supervisor in 1992, Henry Huber requested an Advice of Counsel from the State Ethics Commission. a. Huber's request was dated February 16, 1992. b. His request concerned the issue of whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a zoning hearing officer of a second class township where the zoning officer's spouse is a township supervisor. 21. Advice of Counsel No. 92 -560 was issued by the State Ethics Commission to Henry T. Huber, dated March 20, 1992. a. It was signed by Vincent J. Dopko, Chief Counsel, State Ethics Commission. 22. In part, the Advice of Counsel ( #92 -560) reads as follows: However, it is clear that both you and your wife are subject to the restrictions of the Ethics Law such that if a conflict of interest, as defined above, would Huber 03 -054 Page 5 arise as to a particular matter, the individual or individuals with the conflict would be required to abstain from any participation in that matter and must observe the disclosure requirements of Section 3(j) set forth above. For example, as a Township Supervisor, your wife would have a conflict of interest as to matters before the Board of Supervisors involving your salary, continued employment with the Township, and the like. You would have a conflict of interest as to any matter before you in your capacity as a Zoning Officer, where the use of the authority of your public employment or confidential information received by holding your public position would result in a private pecuniary benefit for you, your wife, or any other member of your immediate, or a business with which you or a member of your immediate family is associated. 23. Advice No. 92 -560 specifically provided that Betsy Huber would have a conflict of interest as to matters before the board of supervisors relating to Henry Huber's salary, benefits and continued employment with the township. III. DISCUSSION: At all times relevant to this matter, the Respondent, Betsy Huber, hereinafter Huber, 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 Betsy Huber, as an Upper Oxford Township Supervisor, violated Section 3(a)/1103(a) of the Ethics Act when she participated in discussions and actions of the board of supervisors to appoint her husband as the township zoning officer and approve compensation for him. Pursuant to Section 3(a)/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 9 of 1989/Act 93 of 1998 as follows: Section 2/1102. 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 P.S. § 402/65 Pa.C.S. § 1102. Section 3(a)/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 Huber 03 -054 Page 6 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. Huber has served on the three - member board of supervisors in Upper Oxford Township since 1992. Huber's spouse, Henry, has served as the zoning officer in the township since 1987. The position of zoning officer is a part -time salaried position which is made through appointments by the board of supervisors at the annual reorganizational meetings. Huber has voted, during her tenure on the board, in favor of the reappointments of her spouse to the zoning officer position. The details of Huber's participation are set forth in part in Fact Finding 7. Huber asserts that at each January reorganizational meeting of the board of supervisors, a motion carried indicating that Huber would not approve bills for payments to her spouse as zoning officer. The board of supervisors adopts a preliminary budget each year which is reviewed and then adopted in December for the following year. Huber has always been present during the budget process meetings and has voted in favor of adopting the proposed budgets for the upcoming years which provided for the salaries for township employees, including Henry Huber as zoning officer. From approximately 1998 forward, motions have been made at board of supervisors meetings that Huber would not approve bills for payments to her spouse as zoning officer. As to the bill approval process in the township, the secretary /treasurer to the board of supervisors provides each supervisor with a list of bills to be paid for the month. The list not only includes bills due for the month but also the wages for employees holding appointed positions. Thus, the wages due Henry Huber as zoning officer are contained in the bills lists presented to the supervisors at the monthly meetings of the board. Following a vote to approve the monthly bills, the supervisors sign their names on a section at the end of the list entitled "Order to Pay." Huber, as vice chairman of the board, signed the Order to Pay at the end of each of the monthly bills lists which included payments to her spouse as zoning officer. Typically the appointments and payment of bills to Henry Huber as zoning officer were approved by unanimous votes of the board of supervisors. For the period 1998 through 2003, of the 72 payroll checks that were issued to Henry Huber, 58 checks were deposited into the bank account in the joint names of Huber and her spouse, Henry. In that timeframe, Henry Huber received total wages of $26,535.00. Lastly, Huber in 1992 requested and received an Advice of Counsel from the Legal Division of this Commission wherein she was advised that she would have a conflict as to matters before the board relating to her spouse's salary, benefits and continued employment with the township. 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 that Huber violated Section 3(a)/1103(a) of the Ethics Act when she participated in discussions and actions of the board of supervisors to appoint her husband as the township zoning officer, and participated as a member of the board in approving compensation for her husband. Huber agrees to pay $1,000 to the Commonwealth of Pennsylvania through this Commission within thirty (30) days of the mailing of this Order. Huber 03 -054 Page 7 In applying the provision of Section 3(a)/1103(a) of the Ethics Act to the above allegation, there were uses of authority of office on the part of Huber. But for the fact that Huber was a supervisor, she would not have been in a position to take various actions as to the reappointments of her spouse as zoning officer, participate as to the budget process which encompassed wages and increases for township employees including her spouse, and participate in the bill approval processes which included township employee wages. All such actions were uses of authority of office. See, Juliante, Order 809. The uses of authority of office resulted in private pecuniary benefits consisting of the wages that Henry Huber received. Lastly, the private pecuniary benefits inured to Henry uber, who, as Huber's spouse, is a member of her immediate family as that term is defined under the Ethics Act. See, 65 P.S. § 402/65 Pa.C.S. § 1102. Accordingly, Huber violated Section 3(a)/1103(a) of the Ethics Act by participating in discussions and actions of the board to appoint her husband as the township zoning officer and approve his compensation. See, Stoner, Order 1304. 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, Huber is directed to y $1,000 to the Commonwealth of Pennsylvania through this Commission within thirty (30) day 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. Huber, as an Upper Oxford Township Supervisor, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Huber violated Section 3(a)/1103(a) of the Ethics Act by participating in discussions and actions of the board to appoint her spouse as the township zoning officer and approve compensation for him. In Re: Betsy Huber ORDER NO. 1329 File Docket: 03 -054 Date Decided: 6/8/04 Date Mailed: 6/16/04 1. Huber, as an Upper Oxford Township Supervisor, violated Section 3(a)/1103(a) of the Ethics Act by participating in discussions and actions of the board to appoint her spouse as the township zoning officer and approve compensation for him. 2. Per the Consent Agreement of the parties, Huber is directed to pay $1,000 to the Commonwealth of Pennsylvania through this 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