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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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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 Page 4 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. Hill 02- 093 -C2 Page 5 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 Page 6 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 Hill 02- 093 -C2 Page 8 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 Hill 02- 093 -C2 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