HomeMy WebLinkAbout1330 HillIn Re: Keith Hill
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- 093 -C2
Order No. 1330
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 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11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.
Hill 02- 093 -C2
Page 2
I. ALLEGATION:
That Keith Hill, a public official /public employee, in his capacity as the manager for
Kutztown Borough, Berks County, violated Section 1103(g) provisions of the State Ethics Act
(Act 93 of 1998), 65 Pa.C.S. §1103(g ) when following his resignation as borough manager he
entered into contracts with the borough to perform consulting and management services within
one year of leaving his public position.
II. FINDINGS:
1. Keith Hill served as Kutztown Borough employee from approximately 1990 through
October 27, 2002.
a. Hill served as borough manager and treasurer from 1991.
b. As manager, Hill's duties included overseeing the day to day operations of the
borough and its public utilities and served as the borough's chief administrative
officer and purchasing agent.
c. Hill also served as the manager and assistant treasurer for the Kutztown
Municipal Authority and Kutztown Transportation Authority.
d. Hill is a licensed professional engineer in the Commonwealth of Pennsylvania.
2. The engineering firm Spotts, Stevens & McCoy, Inc. (SSM) has served as the
borough's consulting engineer on an as- needed basis since approximately the 1930's.
a. SSM's functions for the borough primarily relate to planning, public water, waste
water and utility management issues.
b. Spotts, Stevens, and McCoy, Inc. (SSM) served the Borough in other functions
throughout the years, including transportation and environmental engineering
and consulting, and laboratory testing.
3. Gerald Marino has served as Mayor of Kutztown since January 2002.
4. Since January 2002 Marino has frequently questioned borough finances and
employees performance both during public meetings and privately.
a. Other issues questioned by the mayor included matters involving personnel
hiring, personnel assignments and time entries, utility operations and services,
construction contracts, office space, record of minutes, labor and business
contract negotiations, police matters, sunshine law, borough property
trespassing issues, and other day -to -day borough business matters.
b. Marino frequently questioned the performance of Manager Keith Hill.
5. On August 29, 2002, Hill submitted a letter of resignation from his various borough
positions to Kutztown Borough Council.
a.
b.
Hill cited in part a hostile working environment and continual harassment as the
reason for his resignation.
Hill provided a similar notification to all borough employees on September 3,
2002.
6. On September 11, 2002, council held a special meeting to discuss Hill's resignation
Hill 02- 093 -C2
Page 3
letter.
a. Council took action authorizing the Chairman of the Personnel Committee and
President of Council to seek an independent consultant to ask their advice
concerning the manager's vacancy and to approach Keith Hill about being a
consultant during the transitional period.
b. Kutztown Borough typically enters into consulting arrangements with former
administrators to aid in employee transition.
7. Minutes from Council's September 11, 2002, meeting include the following action
regarding the hiring of a consultant and the approach to Hill.
a. "President Ely revealed that council addressed two issues; 1) To consider
interviewing a consultant to assist with getting a replacement or replacements
for the vacancy of the Manager. A motion was made by Mr. Eidle, seconded by
Mrs. Crooker, resolved, to authorize the Chairman of the Personnel Committee
and the President of Council to seek a consultant and ask their advice
concerning the Manager's vacancy. Passed by unanimous vote; and 2) To
approach Keith Hill about being a consultant during the transition period. A
motion was made by Mr. Eidle, seconded by Mr. Mantz, resolved to authorize
the Chairman of the Personnel Committee and the President of Council to work
out an arrangement to hire Keith Hill as a consultant during the transition.
Passed by unanimous vote."
Present: Eric Ely, Malcolm Eidle, Carl Mantz, James Schwoyer, Archie
Follweiler, Jan Crooker"
b. This action was followed by a unanimous council vote to table any action on
Hill's resignation letter.
8. Kutztown Borough Council took action at their September 17, 2002, meeting to
formally request Hill to withdraw his resignation. Minutes from that meeting includes
the following motion.
a. "Mrs. Crooker asked to address council. Before the start of tonight's meeting.
Mrs. Crooker distributed a letter to everyone discussing why it will be so difficult
for the Borough if Mr. Hill resigns. A motion was made by Mrs. Crooker,
seconded by Mr. Eidle, resolved to formally request Mr. Keith A. Hill to withdraw
his resignation because of Mr. Hill's involvement with the telecommunications
project, the regional sewer treatment plant project and the water treatment plant
or to postpone his resignation until negotiations have been completed in regard
to the proposed regional sewer treatment plant project. Passed by unanimous
vote.
Present: Ely, Eidle, Mantz, Schwoyer, Follweiler, Crooker"
b. Hill informed Council President Eric Ely that he did not want to withdraw his
resignation under the existing circumstances.
9. In a letter to the Kutztown Borough Council dated October 8, 2002, Hill states the
following: "Since submitting my original resignation letter to the Council dated August
29, 2002, several borough representatives have approached me as to whether I would
reconsider my resignation from the many different positions I hold with the Borough of
Kutztown. My position has remained the same in that unless actions were taken to
remedy the unprofessional and hostile work environment and conditions, I would not be
interested in reconsidering my resignation. At this point in time, I am not convinced
that working conditions will improve anytime in the near future."
Hill 02- 093 -C2
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10. Hill's resignation was officially accepted by Kutztown Borough Council during their
October 8, 2002, meeting. Minutes from that meeting include the following actions
approving wages and benefits for Hill through October 27, 2002, with additional
overtime compensation in the amount of $8,000:
a. "A motion was made by Mr. Mantz, seconded by Mrs. Crooker, Resolved, To
accept, with great regret, the resignation of Borough Manager Keith A. Hill from
all of his positions with the Borough, effective October 27, 2002, and be it
further resolved, to continue Mr. Hill's standard salary and benefits through
October 27, 2002, and to pay Mr. Hill the additional compensation of $8,000 for
transitional services and overtime work through October 27, 2002. Passed by
unanimous vote. Mr. Ely commented that he appreciates Mr. Hill's willingness
to extend his resignation date. Mr. Eidle lamented "it's a sad day.
Present: Ely, Eidle, Mantz, Schwoyer, Follweiler, Crooker"
11. Borough Council's desire to retain Hill as a consultant related to budget preparation, a
telecommunication project and other transitional needs.
a. Hill's responsibility as Manager and treasurer included preparation of the budget
and oversight of the borough's telecommunications project.
12. Hill discussed possible employment with the engineering firm Spotts, Stevens &
McCoy, 1047 North Park Road, Reading, PA 19610, after announcing his intention to
resign as manager.
a. Hill submitted his letter of resignation on August 29, 2002.
b. Hill did not receive any written confirmation of an employment offer from SSM
until receiving a letter dated October 4, 2002, with Hill providing written
acceptance of future employment with SSM on October 8, 2002.
c. Hill first discussed with representatives of the borough his employment by the
engineering and consulting firm of Spotts, Stevens and McCoy, Inc. (SSM) on
October 7, 2002 at a meeting.
d. The borough requested the consulting proposal from SSM after learning of
Hill's acceptance of employment with SSM.
e. SSM was familiar with Hill's abilities as a result of professional dealings with the
borough.
f. SSM was interested in Hill as a licensed engineer and for his managerial
knowledge and expertise in telecommunication planning.
13. Hill accepted a position with SSM effective October 28, 2002, after completing his
service with Kutztown Borough.
a. Hill was hired by SSM as a salaried employee based on a forty hour workweek.
b. Hill does not receive any incentives or bonuses for generating or bringing in
new business for SSM.
14. Upon learning of Hill's pending employment with SSM, Council President Eric Ely
requested a proposal from SSM to continue to utilize Hill's services.
15. On October 16, 2002, J. Carlton Godlove, II, President and CEO of SSM, Inc.,
submitted a proposal to Eric Ely, Kutztown Borough President, for professional
management services during the Borough's upcoming management transition.
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a. SSM's proposal outlined responsibilities for the operation of Kutztown Borough
for the positions of manager /chief administrative officer and treasurer.
b. Keith Hill's name was not contained in the report.
c. Hill did not make this proposal to council.
16. As borough manager, Hill participated in the preparation of SSM's proposal to
Kutztown Borough for professional management services by providing information
regarding the functions that were performed by the manager.
a. Hill was requested by council to provide this information.
17. SSM's proposal was prepared and submitted to the borough prior to Hill terminating his
employment with the Borough.
18. Council discussed hiring a consultant to handle the transition to a new borough
manager during their October 29, 2002, meeting.
a. During this meeting it is noted that Hill had accepted a position with Spotts,
Stevens & McCoy, Inc., the borough's engineer.
b. Councilman Eric Ely informed council that "Although he (Hill) took a position
with Spotts, Stevens & McCoy, Inc., they proposed that we hire them as
consultants on a part -time basis for $84.00 per hour, a 30% discount off their
regular rate ... Mr. Hill's duties will be to work on the budget and assist in the
transition with new employees."
19. Minutes from Council's October 29, 2002, meeting included the following official action
taken to hire SSM, Inc., as part -time management consultants to the borough:
a. "A motion was made by Mr. Eidle, seconded by Mr. Mantz, resolved to hire
Spotts, Stevens & McCoy, Inc., as consultants on a part -time basis for $84 per
hour a 30% discount off their regular rate to assist the borough in its operations
during the transition period following the borough manager's resignation.
Passed by unanimous vote.
Present: Ely, Eidle, Mantz, Schwoyer, Follwieler, Crooker"
b. SSM was selected so that the borough could continue to use Keith Hill.
20. At this time, SSM was already serving as the borough engineer and had been so
serving for many years.
21. Kutztown Borough Council took action at their December 30, 2002, meeting to
unanimously adopt resolution number 31 -2002 appointing Jaymes A. Vettraino as
Borough Manager and Treasurer.
a. Part of Hill's duties was to assist with Vettraino's transition.
22. Keith Hill was the only SSM representative who provided transitional managerial
consulting services to Kutztown Borough.
a. Hill only provided consulting services to the borough from October 30, 2002,
through January 28, 2003, on a part time basis.
b. Hill reported to council president Eric Ely and on a day -to -day basis, Hill
Hill 02- 093 -C2
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reported to the Borough Secretary and /or Assistant Borough secretary.
c. Hill, in effect, performed the same duties as a consultant that he had performed as a
borough employee.
d. Hill's time was invoiced to the borough at the rate of $84.00 per hour.
23. Ely relied on Hill to determine the number of hours needed to complete tasks for the
borough within the parameters of the agreement with SSM.
a. Hill selected the dates and hours he would perform services for the borough.
b. These services were provided as a compensated employee of SSM.
c. Services were provided by Hill at both the borough's municipal office and Hill's
office at SSM with the majority of work being completed at the municipal office.
24. Kutztown Borough financial records reflect that invoices were submitted by SSM for
payment of transitional management services performed by Hill.
25. Each SSM invoice to the borough included a detailed listing of professional services
rendered which include:
a. 2003 budget preparation and meetings
Payroll
Account Transfers
Review Manager job description
Tele - communication project work and planning
Monthly closeouts
Work with new manager
Police Arbitration
26. The total of the invoices submitted by SSM to the borough was $19,482.60.
27. SSM has not performed any transitional services for Kutztown Borough since January
28, 2003.
28. SSM and the borough mutually ceased their arrangement as a result of continued
tensions between Hill and Mayor Marino and pending litigation.
29. In his capacity with SSM, Hill performed the duties of a borough employee and did not
represent any outside parties before the borough.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Keith Hill, hereinafter Hill, has been
a public employee 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 Keith Hill, as the manager for Kutztown Borough, Berks
County, violated Section 1103(g) of the Ethics Act when following his resignation as borough
manager he entered into contracts with the borough to perform consulting and management
services within one year of leaving his public position.
Hill 02- 093 -C2
Page 7
Under Section 1103(g) of the Ethics Act, a former public official /public employee is
prohibited from representing a person for compensation on any matter before the
governmental body with which he was associated for a period of one year after he leaves that
body. The terms 'governmental body ", "person ", and "represent" are defined in the Ethics
Law as follows:
Section 1102. Definitions
"Governmental body." Any department, authority,
commission, committee, council, board, bureau, division, service,
office, officer, administration, legislative body, or other
establishment in the Executive, Legislative or Judicial Branch of
a state, a nation or a political subdivision thereof or any agency
performing a governmental function.
"Person." A business, governmental body, individual,
corporation, union, association, firm, partnership, committee, club
or other organization or group of persons.
"Represent." To act on behalf of any other person in any
activity which includes, but is not limited to, the following:
personal appearances, negotiations, lobbying and submitting bid
or contract proposals which are signed by or contain the name of
a former public official or public employee.
65 Pa.C.S. § 1102.
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.
Hill served as a Kutztown Borough employee from 1990 through October of 2002. Hill
held the positions of borough manager and treasurer from 1991 and manager and assistant
treasurer for the Kutztown Municipal Authority and Kutztown Transportation Authority.
In a private capacity, Hill is a professional engineer licensed by the Commonwealth of
Pennsylvania. The engineering firm of Spotts, Stevens & McCoy, Inc. (SSM) serves as the
borough's consulting engineer on an as- needed basis. SSM has also served the borough in
areas such as transportation and environmental engineering and consulting, and laboratory
testing.
Gerald Marino, who has been the Mayor of Kutztown since January of 2002, is noted
for raising questions concerning borough finances and employees both privately and at public
meetings. Marino specifically has raised issues about the job performance of Hill on several
occasions. Hill resigned his position by letter of August 29, 2002, citing sundry reasons
including a hostile working environment and harassment. Following Hill's resignation, council
held a special meeting on September 11, 2002, for the dual purpose of obtaining an
independent consultant regarding the manager position vacancy and also approaching Hill to
act as a consultant during the transition period. See, Fact Findings 6, 7. Borough council met
a week later on September 17, 2002, to formerly request Hill to withdraw his resignation. Hill
informed the council president that he was resolute in leaving given the existing situation. See,
Fact Findings 8, 9.
At an October 8, 2002, meeting of council, Hill's resignation was officially accepted with
the proviso that Hill could continue with a standard salary, benefits and additional
compensation of $8,000 for transitional services through October 27, 2002. It was the
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consensus of council to retain Hill as a consultant given the borough's budget preparation, a
telecommunications project, and other transitional needs.
Hill discussed possible employment with SSM after announcing his intention to resign
as the borough manager on August 29, 2002. Hill received a written confirmation of an
employment offer from SSM by letter dated October 4, 2002, and wrote his acceptance of
employment with SSM on October 8, 2002. Hill discussed his employment by SSM at an
October 7, 2002, meeting with borough representatives. After completing his service with the
borough, Hill accepted a position with SSM effective October 28, 2002. SSM hired Hill as a
salaried employee without any incentives or bonuses for generating new business for the firm.
When the borough council president learned that Hill was employed with SSM, he
requested a proposal from SSM whereby Hill would provide services to the borough.
Subsequently, the President and CEO of SSM submitted a proposal to borough president for
professional management services during the borough's management transition period. Hill did
not make the proposal to council and his name did not appear in the report. Hill participated in
the preparation of the SSM proposal given that he had information regarding the functions that
were performed by the borou9h manager. SSM's proposal was prepared and submitted to the
borough prior to Hill terminating his employment with the borough.
At a borough council meeting on October 29, 2002, a motion was made to hire SSM as
a consultant on a part -time basis at $84.00 per hour for the purposes of assisting the borough
in operations during the transition period following the borough manager's resignation. SSM,
then serving as the borough engineer, was selected so that the borough could continue to use
Hill.
On December 30, 2002, borough council took action to appoint a new borou9h
manager and treasurer. Hill was the only SSM representative to provide transition managerial
consulting services to the borough for the period from October 30, 2002, through January 28,
2003. Hill continued providing such services after the appointment of the new borough
manager in order to provide assistance to the new manager in his transition into the position.
SSM provided invoices to the borough for the transition manacement services which included
a detailed listing of professional services rendered. Sail submitted invoices totaling
$19,482.60 for providing the transition managerial services. During the time that Hill provided
such services on behalf of SSM, he did not represent any outside parties before the borough.
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 the following: "That no violation
of Section 1103(9), of the Public Official and Employee Ethics Law, 65 Pa.C.S. 1103(g)
occurred in relation to the contract with the borough for Hill to perform consulting and
management services within one year of leaving his public position as Hill's services were a
continuation of the duties and responsibilities he performed as a public employee and as such
services were specifically requested by the borough council, as a temporary transitional
solution to an emergency situation, during which service Hill did not represent any person
before the borough, but rather continued to represent the borough."
In applying Section 1103(g) of the Ethics Act to the instant matter, this provision
prohibits a former public official /public employee from representing a person for actual or
promised consideration before his former governmental body for a period of one year after
termination of service. See, Long Opinion 97 -010.
In this case, the parties proffer unique facts and circumstances as a basis for finding
no violation of Section 1103(g) of the Ethics Act. In particular, it is noted that after Hill
announced his resignation, council requested him to withdraw his resignation and failing that
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Page 9
to continue providing services until a replacement was found. Further, it was the council
president who contacted Hill's prospective employer about the possibility of providing
consultant services to the borough where Hill would basically perform his same functions.
Council had concerns because there were pending matters regarding budget preparation, a
telecommunications project, and other matters during the transition period. Hill had familiarity
with such matters.
SSM submitted the proposal without listing Hill's name nor having Hill make the
presentation to council. Hill did not represent any other person before the borough during that
period of time. Accordingly, Hill did not violate Section 1103(g) of the Ethics Act as to a
contract with the borough for him to provide consulting and management services within one
year of leaving his position, as such services were a continuation of his duties and
responsibilities which would be performed at the request at borough council and done so a
temporary transition to an emergency situation during which time Hill did not represent any
person before the borough but continued to act on behalf of the borough in the transition
period.
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.
IV. CONCLUSIONS OF LAW:
1. Hill, as the former manager and treasurer for Kutztown Borough, Berks County, was a
public official and then became a former public employee subject to the provisions of
Act 9 of 1989 as codified by Act 93 of 1998.
2. Hill did not violate Section 1103(g) of the Ethics Act as to a contract with the borough
for him to provide consulting and management services within one year of leaving his
position, as such services were a continuation of his duties and responsibilities which
would be performed at the request of borough council and done so as a temporary
transition to an emergency situation during which time Hill did not represent any person
before the borough but continued to act on behalf of the borough in the transition
period.
In Re: Keith Hill
ORDER NO. 1330
File Docket: 02- 093 -C2
Date Decided: 6/8/04
Date Mailed: 6/16/04
1. Per Consent Agreement of the parties, Hill, as a former manager and treasurer for
Kutztown Borough, Berks County, did not violate Section 1103(g) of the Ethics Act as
to a contract with the borough for him to provide consulting and management services
within one year of leaving his position, as such services were a continuation of his
duties and responsibilities which would be performed at the request of borough council
and done so as a temporary transition to an emergency situation during which time Hill
did not represent any person before the borough but continued to act on behalf of the
borough in the transition period.
BY THE COMMISSION,
Louis W. Fryman, Chair