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HomeMy WebLinkAbout1352 ClymerIn Re: Thomas Clymer 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 Raquel K. Bergen 04 -022 Order No. 1352 11/29/04 12/8/04 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 investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Clymer, 04 -022 Page 2 I. ALLEGATIONS: That Thomas Clymer, a public official /public employee, in his capacity as Secretary Treasurer for North Centre Township, Columbia County, violated provisions of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § 1101 et seq.) when he used the authority of his office for the private pecuniary gain, including but not limited hiring his wife for clerical duties at the township, setting her rate of compensation and authorizing payments to her. II. FINDINGS: 1. Thomas Clymer has served as the Secretary /Treasurer of North Centre Township, Columbia County, since January 6, 1992. a. Clymer was initially appointed secretary /treasurer during the January 6, 1992, reorganization meeting of the board of supervisors. b. Clymer serves as the secretary /treasurer on a part -time basis. 1. Clymer is employed on a full -time basis by PP &L. c. Clymer previously served as an auditor for North Centre Township. 2. Clymer's duties and responsibilities as township secretary /treasurer include the following: a. Preparing agendas and bill lists for township board of supervisors meetings, minutes of meetings and checks for signature by the board. b. Signature authority on township accounts as required by the second class township code. c. Preparing public notices, answering citizen requests. d. Preparation of the annual budget. 3. Clymer's compensation as secretary /treasurer was set by the board of supervisors on January 6, 1992, at $1,700 per year, plus 5% of all of the township expenditures on an annual basis. a. Compensation is to be paid on a quarterly basis. b. Clymer's rate of compensation did not change from 1992 until 2004. 1. Clymer's compensation has been changed to a flat annual salary. 4. The compensation for the township secretary /treasurer position had been set at $1,700 /year plus 5% of expenditures since at least 1991. 5. Clymer operates the office of the secretary /treasurer from his home. a. A telephone line with the township telephone number has been established in Clymer's residence. 6. Carol Clymer is the wife of Thomas Clymer. a. Carol Clymer has assisted Clymer with his township duties since 1992. Clymer, 04 -022 Page 3 1. Carol Clymer was not compensated for this assistance. 7 In or about January 1996, Clymer approached the board of supervisors requesting the board hire a clerk to assist him with duties of secretary /treasurer. a. Clymer informed the board the requirements of the position were increasing. b. Some of the responsibilities of Clymer's position included receiving and responding to telephone inquiries during the day when Clymer was at his full -time employment. c. Some of the duties, including tax filings and vendor contacts, required someone employed by the township to address these matters. 1. Clymer was not available during the day when many issues arose. 2. Clymer's wife, as a non - employee, was not authorized to respond on behalf of the township. d. Clymer was seeking assistance for the clerical functions and responding to telephone inquiries. 8. Clymer informed the board of supervisors that his wife, Carol Clymer, could perform many of the clerical functions, including correspondence, telephone calls, and resident issues from the Clymer residence, as this is where Clymer maintained the secretary /treasurer's office. a. Clymer informed the board that Carol Clymer could be paid from his compensation as secretary /treasurer. 9. Minutes of the North Centre Township Board of Supervisors Reorganization Meeting for January 2, 1996, confirm that Carol Clymer was hired as township clerk by a unanimous vote of the board. a. The minutes note that the compensation for Carol Clymer would come from the secretary /treasurer pay. b. The board also approved the secretary /treasurer compensation at $1,700 plus 5% of expenditures. 10. Members of the board of supervisors, Warren Eartwine, Jr. and Steven Hess, confirmed the following regarding the selection of Carol Clymer as township clerk: a. The position was not advertised prior to the selection of Carol Clymer. b. Thomas Clymer recommended the board consider Carol Clymer because Carol Clymer was in a position to handle daily telephone calls and paperwork while Clymer was at work and that Carol Clymer had assisted in the past with no compensation. c. Clymer did not request a salary for Carol Clymer, but advised that she could be paid from the compensation paid to him as the secretary /treasurer. d. Since no additional compensation would have to be paid, the board agreed to hire Carol Clymer. 11. Prior to 2001, Clymer paid his wife, Carol Clymer, nominal stipend from his Clymer, 04 -022 Page 4 quarterly payments as secretary /treasurer. a. The amounts varied annually. b. No 1099's or W -2's were issued. c. The entire secretary- treasurer salary was reported on W -2's issued to Thomas Clymer. 12. Since 2001, Clymer, in his capacity as township secretary /treasurer, allocated portions of his compensation to his wife as follows: 2001: Date Check No. Gross Amt. 04/09/01 3942 $ 3,493.64 10/08/01 4231 $ 3,963.33 $ 7,456.97 2002: 01/06/02 4342 $ 8,000.84 04/07/02 4504 $ 3,409.49 07/08/02 4632 $ 3,356.19 10/14/02 4729 $ 6,701.10 $ 21, 467.62 2003: 01/02/03 4861 $ 6,652.56 04/13/03 5026 $ 4,694.17 07/14/03 5132 $ 3,803.25 10/13/03 5259 $ 10,270.17 $ 25,420.15 13. W -2 Wage and Tax Statements issued to Thomas Clymer and Carol Clymer by North Centre Township since 1999 confirm the following earnings: Thomas Clymer Carol Clymer 1999: $19,112.44 $ 0.00 2000: $16,350.47 $ 0.00 2001: $ 7,568.79 $ 7,456.97 2002: $ 0.00 $21,502.62 2003: $ 225.00 $25,420.15 a. In 2002 all of the secretary /treasurer salary was applied to Carol Clymer as township clerk. 14. Clymer, in his capacity as secretary /treasurer, prepared the payroll which included payments to Carol Clymer. a. The payroll was approved by the board of supervisors. b. Clymer prepared the checks for signature by the board. c. Checks were signed by two members of the board and Thomas Clymer. III. DISCUSSION: Since January 6, 1992, Respondent Thomas Clymer (also referred to herein as "Respondent" or "Clymer ") has served as Secretary /Treasurer of North Centre Township, Columbia County. In that capacity, Clymer, at all times relevant to this case, has been a Clymer, 04 -022 Page 5 public official /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 Clymer as Secretary /Treasurer of North Centre Township ( "Township ") violated provisions of the Ethics Act when he used the authority of his office for private pecuniary gain, including but not limited to hiring his wife for clerical duties at the Township, setting her rate of compensation and authorizing payments to her. 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: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). § 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 office 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. The term 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. 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. Clymer was initially appointed Township Secretary /Treasurer during the January 6, 1992, reorganization meeting of the Township Board of Supervisors. At that meeting, the Board set Clymer's compensation as Secretary /Treasurer at $1,700 per year, plus 5% of all of the Township expenditures on an annual basis. Clymer's compensation did not change from 1992 until 2004. It then changed to a flat annual salary. Clymer serves in the position of Township Secretary /Treasurer on a part -time basis. In his private capacity, he is a full -time employee of PP &L. Clymer, 04 -022 Page 6 Clymer's office as Township Secretary /Treasurer is located in his home and includes a telephone line with the township telephone number. Clymer's wife, Carol Clymer, has assisted Clymer with his Township duties since 1992. Prior to 1996, Carol Clymer was not compensated for this assistance. Some of Clymer's Township responsibilities require attention by Clymer - -or by someone else standing in an employment relationship with the Township -- during times when Clymer is not available. In or about January 1996, Clymer asked the Township Board of Supervisors to hire a clerk to assist him. Clymer informed the Board that his wife could perform many of the clerical functions from the Clymer residence. Clymer recommended that the Board consider Carol Clymer because she was in a position to handle daily Township work while Clymer was at his full -time job and she had assisted in the past with no compensation. Clymer did not request a salary for his wife, but advised that she could be paid from the compensation paid to him as Secretary /Treasurer. At the January 2, 1996, reorganization meeting, the Township Board of Supervisors voted unanimously to hire Carol Clymer as Township clerk. The position was not advertised prior to the hiring. The minutes note that the compensation for Carol Clymer would come from the Secretary /Treasurer pay. The Board also approved the same Secretary /Treasurer compensation for Clymer that had been in place since 1992. Prior to 2001, Clymer paid his wife in varying amounts from his own payments as Secretary /Treasurer, with the entire Secretary- Treasurer salary being reported on W -2's issued to him. Thereafter, Carol Clymer's compensation was as detailed in Findings 12- 13. As Secretary /Treasurer, Clymer prepared the payroll, which included payments to his wife. The payroll was approved by the Board of Supervisors. Clymer prepared and signed such paychecks, which were also signed by two Board members. 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 Clymer did not violate Section 1103(a) regarding the hiring of his spouse for clerical duties with the Township as the compensation she was paid was taken from his salary as Township Secretary /Treasurer, and the approval for the hiring was made by the Township Board of Supervisors. As we consider the elements of a Section 1103(a) violation, although the Township Board of Supervisors approved the hiring of Clymer's wife, Clymer used the authority of his Township position when he advocated the hiring of a Township clerk; advocated the hiring of his own wife for that position; and subsequently prepared payroll /paychecks and signed paychecks as to his wife. With regard to the element of a private pecuniary benefit, Carol Clymer was paid from her husband's compensation as Secretary Treasurer, and the Township did not incur any additional expense over and above that amount as a result of her hiring. One may only speculate what would have happened if the Board had refused to hire Carol Clymer. Would Respondent have been able to continue to function as Secretary /Treasurer without a Township clerk to assist him, or might someone other than his immediate family member have been hired as Township clerk? If a non - family member had been hired, would Respondent's compensation have been decreased? We note these questions to caution that the outcome of this particular case, based upon a limited Stipulation of Findings and a Consent Agreement, should not be interpreted as a precedent that would apply in every instance. To the contrary, there might be circumstances under which such actions by one Clymer, 04 -022 Page 7 spouse to get an employment position for the other spouse would clearly result in keeping income within the immediate family rather than diverting it to a non - family member. In any event, we are constrained to decide whether to accept the Consent Agreement based upon the Stipulation of Findings. We conclude that there is a lack of clear and convincing evidence to establish a violation of Section 1103(a) of the Ethics Act. We parenthetically note that under the Consent Agreement, Section 1103(f) of the Ethics Act, pertaining to improper contracting, is not before us. We determine that the Consent Agreement submitted by the parties sets forth the proper disposition for this particular case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, we find that Clymer did not violate Section 1103(a) of the Ethics Act regarding the hiring of his spouse for clerical duties with the Township. As per the Consent Agreement of the parties, this Commission will take no further action in this case which is closed. IV. CONCLUSIONS OF LAW: 1. As Secretary /Treasurer of North Centre Township ( "Township "), Columbia County, since January 6, 1992, Respondent Thomas Clymer ( "Clymer ") was at all times relevant to this case a public official /public employee subject to the Ethics Act. 2. Clymer did not violate Section 1103(a) of the Ethics Act regarding the hiring of his spouse for clerical duties with the Township. In Re: Thomas Clymer ORDER NO. 1352 File Docket: 04 -022 Date Decided: 11/29/04 Date Mailed: 12/8/04 1 Respondent Thomas Clymer ( "Clymer "), as Secretary /Treasurer of North Centre Township ( "Township "), Columbia County, did not violate Section 1103(a) of the Ethics Act regarding the hiring of his spouse for clerical duties with the Township. 2. As per the Consent Agreement of the parties, this Commission will take no further action in this case which is closed. BY THE COMMISSION, Louis W. Fryman, Chair