HomeMy WebLinkAbout1362 VarnerIn Re: Ben Varner
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Daneen E. Reese
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
03 -056
Order No. 1362
2/28/05
3/14/05
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 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter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.
Varner, 03 -056
Page 2
I. ALLEGATION:
That Ben Varner, a (public official /public employee) in his capacity as
Superintendent of the State Correctional Institution at Smithfield violated the following
provisions of the State Ethics Act (Act 93 of 1998) when he used the authority of his office
for a private pecuniary gain, including but not limited to utilizing inmates, trade and
maintenance staff of the State Correctional Institution at Smithfield to perform work on his
personal equipment and residence, including but not limited to equipment repairs and
fabrication work, electrical, plumbing and concrete work; and when he utilized inmates and
materials and facilities provided by the Department of Corrections to perform work on
personal vehicles owned by his brother.
§ 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. "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.
II. FINDINGS:
1. Ben Varner was employed by the Commonwealth of Pennsylvania, Department of
Corrections, from March 9, 1972, until August 15, 2003.
a. Varner was the superintendent of the State Correctional Institute at
Smithfield, PA (SCI - Smithfield) from approximately June 2001, until August
15, 2003.
b. Varner previously was employed as a superintendent at other correctional
institutes within the Commonwealth.
2. On August 22, 2001 Varner signed a job description for the position of corrections
superintendent 2, SCI - Smithfield.
3. As superintendent of SCI Smithfield, Varner was able to reside in a Commonwealth
owned house on site.
Varner, 03 -056
Page 3
a. Any needed repairs to, or upkeep on this property could be performed by
prison staff or supervised inmates at no direct cost to Varner.
b. This benefit of employment did not carry over to work on non - Commonwealth
owned property.
c. Varner resided in a Commonwealth owned residence on site at SCI
Smithfield while having a personal residence built in Alexandria PA.
4. Maintenance charges for employees residing in Commonwealth housing are
established by the Commonwealth's management directive number 315.14
amended May 29, 1997.
a. The Secretary of Corrections, Deputy Secretaries, Facility Managers, Deputy
Superintendents, the Director of the Training Academy, and the Motivational
Boot Camp Commander are required to reside in Commonwealth housing
whenever it is available.
b. Maintenance charges are assessed on a bi- weekly basis consistent with
Management Directive No. 315.14.
1. Stated fees in this management directive are for defined areas
including residence, utilities, laundry, domestic service, garage and
meals.
2. Each area has a specific bi- weekly charge associated with it.
5. While serving as Superintendent of SCI Smithfield, Varner had his personal vehicle
serviced at the prison auto shop.
a. Superintendent Varner had his personal vehicle serviced at least four (4)
times at the prison auto shop between January 18, 2002, and August 1,
2003.
6. SCI Smithfield inmate general welfare fund auto repairs /services policy number OM
022.01 established policies and procedures applicable to all auto services available
to employees of all departments through the institutional auto shop.
a. Policy number OM 022.01 revised June 11, 2002, covered Varner's tenure
as Superintendent of SCI Smithfield.
b. Item IV — Procedures
1. Employees desiring to have automotive services performed by the
institution auto shop must complete an "auto shop services request"
form available from the switchboard operator in the administrative
wing.
2. The cost of services must be prepaid to the switchboard operator.
3. All required repair parts must be provided by the employee at the time
the vehicle is scheduled for service.
4. Employees will present their request form to the switchboard operator
who will certify that the appropriate charge for services has been paid
by signing the form.
c. Established price listing for auto service and repairs:
Car wash & cleaning — up to full size automobiles, motorcycles $ 3.50
Varner, 03 -056
Page 4
Car wash & cleaning - mini -vans, trucks /caps or campers
Car wash & cleaning - motor homes
Car wash & wax - up to full size automobiles
Car wash & wax - mini -vans, trucks /cap or campers
Car wash & wax - motor homes
Lube
Universal Joint
Wheel Balance
Ball Joint installed
Battery Charged
Bearings repacked - standard
Bearings repacked - disc brakes
Master cylinder rebuilt
Tune -up 4 cylinder
Tune -up 6 cylinder
Tune -up 8 cylinder
Replace exhaust system
Hoses Installed
Oil and filter change
Shock absorbers
Tire repair
Tire mounting
Tire and wheel rotation
Water pump replacement
Clean spark plugs
Fan belt replacement - non air
Fan belt replacement - with air
Power steering belt replacement
All other labor
$ 5.00
$ 8.00
$ 11.50
$ 14.00
$ 18.00
$ 2.50
$ 5.00
$ 2.50 /wheel
$ 5.00
$ 1.55
$ 2.00
$ 5.00
$ 4.00
$ 6.00
$ 6.00
$ 6.00
$ 10.00
$ 1.15
$ 3.00
$ 2.55
$ 2.00
$ 2.00
$ 2.00
$ 5.50
$ 1.65
$ 1.00
$ 1.50
$ 1.00
$ 6.00 /hour
d. The repair of personal vehicles by prison auto shop staff and /or inmates was
a benefit limited to prison employees and not the general public.
e. Any parts needed to perform a repair had to be provided by the vehicle
owner.
7 SCI Smithfield switchboard operator records include a receipt ledger detailing the
date, employee name, general nature of service performed and amount paid for
services performed in the prison auto shop.
8. SCI Smithfield receipt ledgers detail work being performed on Varner's personal
vehicle on the following dates:
a. Date
01/18/02
05/23/02
07/24/03
08/01/03
Total
Service
Repair
Repair
Repair
Repair
Amount Paid
$ 18.00
$ 18.00
$ 3.00
$ 20.00
$ 59.00
b. Each repair listed above is marked as paid on the receipt ledger.
c. Prison policy required Varner to supply any needed repair parts at his cost.
d. All charges assessed Varner were for actual labor.
e. Repair ledgers did not specify the exact nature of the repairs.
Varner, 03 -056
Page 5
9. SCI Smithfield financial records include a separate receipt book confirming the
above - listed payments made by Varner as follows:
a. Date Receipt No. Amount
01/18/02 3080 $ 18.00
05/23/03 3437 $ 18.00
07/24/03 3489 $ 3.00
08/04/03 6 $ 20.00
Total 59.
10. On August 18, 2003, Varner made an additional payment of $60.00 for unspecified
services received.
a. Varner's $60.00 reimbursement payment is recorded on the auto shop
receipt ledger and payment receipt book.
b. Receipt number 25 dated August 18, 2003, documents Varner's reimbursement
payment in the amount of sixty ($60) dollars.
1. No details as to what the reimbursement payment was to cover were
listed on the receipt.
11. Current superintendent John Palakovich assessed Varner the additional sixty ($60)
dollar fee based on a review of work performed for Varner of a personal nature
detailed in the Department of Corrections, Office of Professional Responsibility's
August 6, 2003, report.
a. The $60 reimbursement was based on ten (10) hours of labor at a stated
rate of six ($6) dollar per hour.
b. The six ($6) dollar an hour figure was consistent with labor rates listed on
SCI Smithfield policy number OM 022.01 under all other labor." (See
Finding No. 15c).
c. The sixty ($60) dollar reimbursement payment was not designated to cover
any specific personal work or repairs just a general total.
12. In or about the spring and summer 2003 the Department of Corrections, Office of
Professional Responsibility, initiated an inquiry regarding Varner and potential
violations of departmental policies.
13. On August 6, 2003, the Department of Corrections, Office of Professional
Responsibility (OPR) issued a report detailing ethics /policy violations by Ben
Varner while superintendent of SCI Smithfield.
a. The OPR report summarized repairs performed for Varner by prison employees
and /or inmates.
14. The OPR report detailed the following personal work being completed at Varner's
direction:
a. James Jones, correction welding trade instructor, repaired a tree stand for
Varner by re- welding the joints on the stand. Jones repaired a York rake for
superintendent Varner. Varner supplied necessary spring steel needed to
perform the repair with Jones performing welding as needed on it. Repairs
to Superintendent's equipment included deer stand, 1/2 hour, rock rake, 2 to
3 hours, borough truck, 12 to 15 hours.
Varner, 03 -056
Page 6
b. Harold Shaffer, corrections machinist trade instructor, repaired an A -frame
type swing at the superintendent's residence. Repair work consisted of work
on eyebolts and took approximately 2 hours to complete. Shaffer also was
involved with repairs to a trailer at James Jones' request. He had fabricated
four rollers for the trailer using scrap stock from the machines /welding shop.
Shaffer spent approximately 12 hours of shop time to facilitate the repair.
Shaffer took the rollers for the trailer to the auto shop for installation upon
completion of the fabrication work.
c. Christian Stone — corrections automotive trade instructor, installed rollers on
a roll -off truck bed which was owned by Huntingdon Borough and did not
charge for the job. Work done on Superintendent Varner's old truck included
cutting the frame and welding it to a tongue to be used as a trailer, bolting
several teeth onto a rock rake and installing a spreader onto the back of his
dump truck. Stone spent approximately 40 hours time performing work on
Varner and other employees' equipment, including Lt. Painter's front -end
loader, and Mr. Corbin's skid loader.
d. Lt. Rodney Painter issued a masonry drill bit to Varner which Varner had
subsequently returned.
15. On August 5, 2003, Varner was interviewed by Major Anthony Russ and Lieutenant
David Novitsky from the Department of Corrections, Office of Professional
Responsibility. Varner provided them with the following details on personal work he
had performed by prison staff and /or inmates.
a. Benny Varner — acknowledged that several items of a personal nature were
either repaired or fabricated at SCI Smithfield. Varner said a dump truck
was converted into a trailer, a salt /stone spreader was attached to his
personal truck, a rock rake repaired, a tree stand repaired, a Huntingdon
Borough trailer was altered enabling it to accommodate garbage dumpsters,
a ramp was made to load an ATV, and A -frame swing was repaired at the
state owned superintendent's residence.
b. Varner retained no record of when these repairs were completed or paid for.
c. Varner added that several employees completed these repairs and that they
were completed at the institutions auto shop and at the maintenance shops
inside the perimeter of SCI Smithfield.
d. Varner claimed that he asked Mr. Stone how much was owed for the repairs
to which Stone informed him that no payment was necessary since he was
the superintendent.
e. Varner said he presumed that the repairs were a perk of being superintendent.
f. Varner also had on one occasion signed out a Hilti drill bit for personal use
at his residence.
1. Varner claimed that the item did not work properly and it was returned
to the institution.
The following findings relate to determining the total financial gain received by
Varner for personal work he received from prison employees and /or inmates
16. The SCI Smithfield does not make its tools available for use by the general public.
Varner, 03 -056
Page 7
a. Varner had access to the tool room and its contents only as a result of his
position as Superintendent.
17. APM Home Center, Fairgrounds Road, Huntingdon, PA 16652 rents concrete
boring rotary hammers and core boring bits similar to Hilti brand products.
a. APM Home Center is local to SCI Smithfield.
b. APM Home Center rents tools and equipment to the general public as part of
their retail business.
18. APM Home Center rental rates for a rotary hammer similar to the Hilti brand Varner
borrowed from SCI Smithfield's tool room are as follows:
a. 1 days rental of rotary hammer $35.00
1 days rental of core bit $16.00 to $24.00
2 inch ($16)
2.5 inch ($18)
3 inch ($20)
3.5 inch ($22)
4 inch ($24)
19. Varner realized a minimum private pecuniary gain of $51.00 as a result of not
paying the fair market rental value for 1 days use of a Hilti style concrete boring bit.
a. Financial gain based on one (1) day hammer rental of $35.00 and a
minimum bit size of 2 inches rental of $16.00.
20. James Jones, Welding Trades Instructor, SCI Smithfield, performed personal work
for Varner on Commonwealth time, including welding a tree stand, rock rake and
fabricating ramps to load an all terrain vehicle (ATV) into the back of a pickup truck
or trailer.
a. Varner supplied the parts necessary to repair his rock rake.
b. Institution scrap metal was used to fabricate the ATV ramps.
c. Jones spent approximately thirty (30) minutes welding Varner's tree stand.
d. Jones spent approximately two (2) hours welding Varner's rock rake.
e. Jones spent approximately one (1) hour fabricating ATV loading ramps for
Varner.
f. Jones did not record individual days he worked on Varner's personal
projects.
g. This work was done at Varner's direction.
h. Jones received the following average hourly wages since 2001:
1. 2001: $22.78 /hour
2. 2002: $23.21 /hour
3. 2003: $24.85 /hour
21. Varner realized a private pecuniary benefit of $79.73 as a result of Commonwealth
time spent by James Jones performing work of a personal nature for Varner at
Varner's direction.
a. Financial gain based on Jones' lowest average hourly rate since 2001 of
Varner, 03 -056
Page 8
$22.78, multiplied by personal hours worked.
1. 0.5 hours to repair tree stand @ $22.78 /hour = $11.39
2. 2.0 hours to repair rock rake @ $22.78 /hour = $45.56
3. 1.0 hours to fabricate ATV ramps @ $22.78 /hour = $22.78
22. Charles DeLuca, Electrical Trade Instructor, SCI Smithfield, performed personal
work for Varner on Commonwealth time, including an electrical inspection at
Varner's personal residence and removal of a swimming pool pump and related
components.
a. DeLuca spent approximately 1.5 hours performing an electrical inspection at
Varner's personal residence in Alexandria, PA, including travel time.
b. DeLuca spent approximately three (3) hours disconnecting an above ground
pool pump and related electric service at the superintendent's residence for
relocation to Varner's personal residence in 2002.
1. The pool also was dismantled for removal utilizing inmate labor.
2. Neither the pool nor its electrical components were Commonwealth
property.
c. DeLuca did not record individual days he spent working on these projects.
d. This work was done at Varner's direction.
e. DeLuca received the following average hourly wages since 2001:
1. 2001: $20.92
2. 2002: $22.77
3. 2003: $24.41
23. Varner realized a private pecuniary benefit of $94.14 as a result of Commonwealth
time spent by Charles DeLuca performing work of a personal nature for Varner at
Varner's residence.
a. Financial gain based on DeLuca's lowest average hourly rate since 2001 of
$20.92 multiplied by personal hours.
1. 1.5 hours to perform electrical inspection @$20.92 /hour = $31.38.
2. 3.0 hours to disconnect pool electric @ $20.92 /hour = $62.76
24. Theodore Boozel, Community Work Program Coordinator, SCI Smithfield,
supervised the four (4) inmates who dismantled the above ground swimming pool at
the superintendent's residence and loaded it into Varner's personal dump truck for
transport to Varner's personal residence.
a. Boozel did not record the actual date that the pool was dismantled.
b. The pool was not Commonwealth property.
c. Inmate labor is valued at $6.00 per hour per SCI Smithfield policy OM
022.01.
Varner, 03 -056
Page 9
d. This work was done at Varner's direction.
e. Boozel received the following average hourly wages since 2001:
1. 2001: $18.72
2. 2002: $20.20
3. 2003: $21.16
25. Varner realized a private pecuniary benefit of $74.88 as a result of Commonwealth
time spent by Theodore Boozel dismantling Varner's above ground pool at Varner's
direction.
a. Financial gain based on four (4) hours of Theodore Boozel's time @ $18.72
per hour, $74.88 ($18.72 was Boozel's lowest average salary during this
period).
26. Christian Stone, Automotive Trades Instructor, SCI Smithfield, performed work of a
personal nature for Varner on Commonwealth time including installing blades on a
rock rake, reconditioning and installation of a rock/salt spreader on Varner's truck,
modification of a truck frame into a trailer and supervision of four inmates assisting
with some of these projects:
a. Stone did not record the actual dates that this work occurred.
b. Parts and materials used for these repairs were provided by Varner, no
institutional scrap was used.
c. Stone spent approximately 0.5 hours installing blades on Varner's rock rake.
d. Stone spent approximately 3.0 hours converting a truck frame into a towable
trailer for Varner.
e. Stone spent approximately 4.0 hours refurbishing and installing a rock/salt
spreader on Varner's trucks.
f. This work was done at Varner's direction.
g.
Stone received the following average wages:
1. 2001: $13.49
2. 2002: $15.58
3. 2003: $17.43
27. Varner realized a private pecuniary benefit of $101.18 as a result of Commonwealth
time spent by Christian Stone performing repair, fabrication and installation services
at Varner's direction.
a. Financial gain based on Stone's lowest average hourly rate since 2001 of
$13.49 multiplied by personal hours worked.
1. 0.5 hours installing rock rake blades @ $13.49 /hour = $6.75
2. 3.0 hours converting a truck frame into a trailer @ $13.49 /hour =
$40.47
3. 4.0 hours refurbishing /installing a rock/salt spreaeder [sic] onto
Varner's truck @ $13.49 /hour = $53.96
Varner, 03 -056
Page 10
28. Christian Stone also supervised four (4) inmates including Norman Round who
performed personal work for Varner in the prison's autoshop.
a. Inmate labor was valued at $6.00 per hour.
b. Records were not maintained identifying inmates assigned to the prison
autoshop or duties performed.
c. Any materials or parts needed were supplied by Varner.
d. This work was not reimbursed for by Varner.
29. Three (3) unknown SCI Smithfield inmates assisted with the restoration of the
spreader box and modifications to the dump truck frame under Christian Stone's
supervision at Varner's direction.
a. These inmates spent approximately sixteen (16) hours each assisting with
repairs to and installation of the salt spreader.
b. These inmates spent approximately sixteen (16) additional hours assisting
modifying a truck frame into a trailer and dump bed.
30. Varner did not reimburse the Commonwealth /Department of Corrections, for the
repairs or labor he had performed by prison staff and equipment" beyond work
specifically detailed in finding numbers 18 and 19.
a. Varner did make a general reimbursement payment of $60.00 on August 18,
2003.
b. Varner only had access to SCI Smithfield staff and inmate labor as a result
of his position as superintendent.
31. Ben Varner realized a total pecuniary benefit of $340.93 as a result of all personal
work detailed in this report after deducting Varner's $60.00 general reimbursement
payment made on August 18, 2003.
Source Value
Use of Hilti style boring bit $ 51.00
James Jones' labor $ 79.73
Charles DeLuca's labor $ 94.14
Theodore Boozel's labor /supervision $ 74.88
Christian Stone's labor $ 101.18
Total $ 400.93
Varner reimbursement payment $ 60.00
Total Financial Gain $ 340.93
III. DISCUSSION:
Respondent Ben Varner (also referred to herein as "Respondent" or "Varner ") has
at all times relevant to these proceedings been a public official /public employee subject to
the provisions of the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11,
65 Pa.C.S. § 1101 et seq., which Act is referred to herein as the "Ethics Act."
The allegations are that Varner, as Superintendent of the State Correctional
Institution at Smithfield violated Section 1103(a) of the Ethics Act when he used the
authority of his office for a private pecuniary gain, including but not limited to: (1) utilizing
inmates, trade and maintenance staff of the State Correctional Institution at Smithfield to
perform work on his personal equipment and residence, including but not limited to
Varner, 03 -056
Page 11
equipment repairs and fabrication work, and electrical, plumbing and concrete work; and
(2) utilizing inmates and materials and facilities provided by the Department of Corrections
to perform work on personal vehicles owned by his brother.
Pursuant to 1103(a) of the Ethics Act quoted above, 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).
The term "conflict of interest" is defined in the Ethics Act as follows:
§ 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. "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.
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.
Varner was employed by the Commonwealth of Pennsylvania, Department of
Corrections, from March 9, 1972, to August 15, 2003.
Varner served as Superintendent of the State Correctional Institute at Smithfield, PA
( "SCI- Smithfield ") from approximately June 2001 to August 15, 2003.
As Superintendent of SCI - Smithfield, Varner resided in a Commonwealth owned
residence on site. Upkeep and repairs on the residence could be performed by prison staff
or supervised inmates at no direct cost to Varner as a benefit to his Commonwealth
employment. Such benefits did not extend to privately owned residences, such as
Varner's personal residence in Alexandria, Pennsylvania.
Varner, 03 -056
Page 12
SCI - Smithfield Policy Number OM 022.01, which was in effect while Varner was a
Superintendent, established policies and procedures applicable to all auto services
available to employees of all departments through the institutional auto shop. Per the
policy, prison employees were permitted to have their personal vehicles repaired by prison
auto shop staff or inmates, but any repair parts had to be provided by the vehicle owner
(see, Finding 6).
In the spring or summer of 2003, the Department of Corrections, Office of
Professional Responsibility ("OPR ") initiated an inquiry regarding Varner and potential
violations of departmental policies. On August 5, 2003, Major Anthony Russ and
Lieutenant David Novitsky from the Department of Corrections, Office of Professional
Responsibility, interviewed Varner, at which time, Varner provided details regarding
personal work completed at his direction by prison staff and /or inmates (see, Finding 15).
According to Varner, such work consisted of the following: converting a dump truck into a
trailer; attaching a salt /stone spreader to Varner's personal truck; repairing a rock rake,
tree stand, and an A -frame swing; altering a Huntingdon Borough trailer enabling it to
accommodate garbage dumpsters; and fabricating a ramp to load an ATV. Varner also
disclosed that on one occasion, he signed out a Hilti drill bit for personal use at his
residence, but later returned the drill bit claiming that it did not work properly.
On August 6, 2003, OPR issued a written report detailing personal work completed
at Varner's direction by prison staff. OPR's report included the following information:
James Jones, Corrections Welding Trade Instructor, repaired a tree stand, rock rake, deer
stand, and borough truck; Harold Shaffer, Corrections Machinist Trade Instructor, repaired
a trailer and an A -frame type swing at Varner's Commonwealth residence; Christian Stone,
Corrections Automotive Trade Instructor, installed rollers on a roll -off truck bed which was
owned by Huntingdon Borough, and converted Varner's old dump truck into a trailer; and
Lt. Rodney Painter issued a masonry drill bit to Varner, which Varner subsequently
returned (see, Finding 14).
In addition to the above, Varner directed other prison staff members and /or prison
inmates to perform personal work for him on Commonwealth time.
Charles DeLuca, Electrical Trade Instructor, utilized inmate labor to dismantle an
above ground swimming pool pump and related components at Varner's Commonwealth
residence for relocation at Varner's personal residence in Alexandria, Pennsylvania.
Neither the swimming pool nor its electrical components were Commonwealth property
(see, Finding 22). DeLuca also conducted an electrical inspection at Varner's personal
residence.
Theodore Boozel, Community Work Program Coordinator, supervised four inmates
who dismantled the above ground swimming pool at Varner's Commonwealth residence
and loaded it into Varner's personal dump truck for transport to Varner's personal
residence.
Norman Round, an inmate at SCI - Smithfield, along with three other unnamed
inmates worked under the supervision of Stone assisting with the restoration of a salt
spreader box and modification of Varner's dump truck frame.
Varner used the above named Commonwealth employees to perform personal work
for him at a cost to the Commonwealth of at least $349.93 (see, Finding 31). Varner
utilized Commonwealth equipment, specifically, a Hilti drill bit, for personal use at a cost to
the Commonwealth of at least $51.00 (see, Finding 19). Varner did not reimburse the
Commonwealth for the work that was completed utilizing Commonwealth labor, nor did he
reimburse the Commonwealth for his personal use of the Hilti drill. Varner did, however,
Varner, 03 -056
Page 13
make a general reimbursement payment of $60.00 on August 18, 2003, when he was no
longer employed by the Department of Corrections.
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
as follows:
"3.
The Investigative Division will recommend the following in relation to
the above allegations:
a. The Investigative Division will recommend a violation of an
unintentional violation [sic] of Section 1103(a) of the Ethics Act
occurred when Varner utilized the labor of employees and
equipment at State Correctional Institutions at Smithfield for
personal reasons.
b. By agreement of the parties, all charges related to Varner's
use of labor from inmates are dismissed.
4. Varner agrees to make payment in the amount of $300.00 in
settlement of this matter. Said amount to be payable to the
Commonwealth of Pennsylvania and forwarded to the Pennsylvania
State Ethics Commission within thirty (30) days of the issuance of the
final adjudication in this matter.
5. The Investigative Division will recommend that the State Ethics
Commission take no further action in this matter; and make no
recommendations to any law enforcement or other authority to take
action in this matter. Such, however, does not prohibit the
Commission from initiating appropriate enforcement actions in the
event of Respondent's failure to comply with this agreement or the
Commission's order or cooperating with any other authority who may
so choose to review this matter further."
Consent Agreement, paragraphs 3 -5.
In considering paragraph 3(a) of the Consent Agreement quoted above, it is clear
that the elements for a violation of Section 1103(a) of the Ethics Act have been established
as to Varner's use of the labor of Commonwealth employees as well as Commonwealth
equipment at SCI - Smithfield for personal reasons. But for the fact that Varner was a
Superintendent at SCI - Smithfield, he would not have been in a position to use
Commonwealth employees on Commonwealth time or to access Commonwealth
equipment for personal purposes. Such uses of authority of office resulted in an initial
private pecuniary benefit to Varner in the amount of $400.93 ($349.93 [total number of
hours of Commonwealth labor] plus $51.00 [fair market rental value for 1- day use of a Hilti
style concrete boring bit]. However, as noted above, Varner made a general
reimbursement payment in the amount of $60.00 when he was no longer employed by the
Department of Corrections, such that the parties have stipulated that the resulting total
financial gain to Varner was in the amount of $340.93.
Although intent is not a requisite element for a violation of the Ethics Act, Yocabet v.
State Ethics Commission, 531 A.2d 536 (Pa. Cmwlth. 1987), it is one of the factors that this
Commission may consider in determining the proper disposition of a case. Based upon
the Stipulated Findings, it would appear to be the view of the parties that Respondent did
not intend to violate the Ethics Act in taking the above actions. In this regard, we note that
Varner, 03 -056
Page 14
SCI - Smithfield had its own policy in place that may have led Varner to believe that it was
permissible to have his own personal vehicles repaired by SCI - Smithfield employees at no
cost to him. Given this, we conclude that the application of the law to the facts before us
supports a determination that an unintentional violation of Section 1103(a) of the Ethics
Act occurred when Varner utilized the labor of employees and equipment at SCI - Smithfield
for personal reasons.
As to paragraph 3(b) of the Consent Agreement, the parties have agreed to a
dismissal of all charges related to Varner's use of labor from inmates. Since the
Investigative Division in the exercise of prosecutorial discretion and as part of an overall
comprehensive settlement of the case has the option to take such action, we need not and
will not discuss the dismissed charges.
We shall now consider the parties' recommendation as to restitution. (See, 65
Pa.C.S. § 1107(13)). In settlement of this matter, Respondent has agreed to make
payment in the amount of $300.00 to the Commonwealth of Pennsylvania, with such
payment to be forwarded to this Commission within thirty (30) days of the issuance of the
final adjudication in this matter.
In considering the above recommendation, the $300.00 of restitution proposed by
the Consent Agreement is less than the total private pecuniary benefit that Respondent
received from the aforesaid unintentional violation of Section 1103(a) of the Ethics Act, but
that amount has been agreed to by both parties in the context of a settlement.
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, Varner is directed to pay
restitution in the amount of $300.00 to the Commonwealth of Pennsylvania through this
Commission by no later than the thirtieth (30 day after the mailing date 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. Ben Varner ("Varner "), as Superintendent of the State Correctional Institution at
Smithfield ("SCI-Smithfield") was at all times relevant to these proceedings a public
official /public employee subject to the provisions of the Ethics Act.
2. Varner unintentionally violated Section 1103(a) of the Ethics Act when he utilized
the labor of employees and equipment at SCI - Smithfield for personal reasons.
In Re: Ben Varner
ORDER NO. 1362
File Docket: 03 -056
Date Decided: 2/28/05
Date Mailed: 3/14/05
1 Ben Varner ("Varner "), as a Superintendent of the State Correctional Institution at
Smithfield ( "SCI- Smithfield ") unintentionally violated Section 1103(a) of the Ethics
Act when he utilized the labor of employees and equipment at SCI - Smithfield for
personal reasons.
2. Per the Consent Agreement of the parties, Varner is directed to pay $300.00 to the
Commonwealth of Pennsylvania through this Commission by no later than the
thirtieth (30 day after the mailing date 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