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HomeMy WebLinkAbout1381 BrittonIn Re: Thomas Britton File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella 04 -041 Order No. 1381 12/12/05 12/23/05 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 allegations. 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. 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Britton, 04 -041 Page 2 I. ALLEGATION: That Thomas Britton, a public official in his capacity as Supervisor of Cambria Township, Cambria County, violated provisions of the State Ethics Act (Act 9 of 1989, 65 P.S. §401 et seq.) when he used the authority of his office for a private pecuniary gain of himself and /or members of his immediate family and /or businesses with which members of his immediate family are associated by participating in actions to approve payments to Barr Calvert [sic], a business which is owned by his son; and when he participated in board actions to award contracts to Barr Calvert [sic] in excess of $500 without an open and public process; when he authorized pension payments to himself to which he was not entitled; and when he reimbursed himself township funds in excess of the amount personally incurred for health care insurance. II. FINDINGS: 1. Thomas Britton served as a supervisor for Barr Township, Cambria County, from February 29, 1996 through December 31, 2003. a. Britton was initially appointed to complete an unexpired term at the February 29, 1996 special meeting. b. Britton served in multiple township positions of varying combinations during his supervisor tenure including secretary /treasurer, township manager, pension fund officer, sewage application officer, building permit officer, and roadmaster. 2. Britton also served in multiple employment positions of varying combinations including secretary /treasurer, pension fund officer, sewage application officer, and building permit officer prior to and after serving as a township supervisor. a. Barr Township employed Britton from November 10, 1990 to February 28, 1996 and from January 5, 2004 through April 3, 2004 as an employee only. 1. Britton resigned from employment with the township effective April 3, 2004. 3. Britton maintained employment with the township in various positions following his appointment to the board of supervisors. a. From January 1999 through December 2003, Britton held the following positions: 1999: Secretary /Treasurer, Roadmaster, Pension Fund Officer, Sewage Application Officer, Building Permit Officer. 2000: Secretary /Treasurer, Manager, Roadmaster, Pension Fund Officer Sewage Application Officer, Building Permit Officer. 2001: Secretary /Treasurer, Manager, Roadmaster, Pension Fund Officer Sewage Application Officer, Building Permit Officer. 2002: Secretary /Treasurer, Pension Fund Officer Sewage Application Officer, Building Permit Officer. 2003: Secretary /Treasurer, Pension Fund Officer Sewage Application Officer, Building Permit Officer. Britton, 04 -041 Page 3 4. Briton's duties and responsibilities in his positions of secretary /treasurer, manager, and roadmaster included the following: a. Britton, as the secretary /treasurer, was responsible for the following duties including, among others, taking minutes at monthly meetings, purchasing, bid advertisement, collection of phone quotes for materials and services needed, accounts receivable and accounts payable, payroll, etc. b. Britton, as the township manager, was responsible for the following duties, including, among others, investigation of any action or proposal contemplated by the township, administration of all township projects, negotiation between the township and third parties, consultation with township officials, representation of the township before governmental agencies, enforcement and administration of township ordinances, and other duties set forth in Barr Township Ordinance No. 19930208 established on February 8, 1993. c. Britton, as the township roadmaster, was responsible for the following duties, including, among others, maintenance of township roads, including inspecting roads, plowing roads, maintaining the township vehicles; and other duties set forth in Barr Township Ordinance No. 19861013, established on October 13, 1986. 5. From at least January 1999 through 2003 Britton routinely worked full time, 40 hours per week in his various positions. a. Britton performed the majority of the duties of his various positions at the Barr Township office. 6. Barr Township is a second -class township governed by a three - member board of supervisors. a. Supervisors currently receive $75.00 gross per meeting as payment for services in their supervisor capacity. 1. Regular meetings are held once per month. 2. Special meetings are held occasionally throughout the year. b. The supervisors must be present at the meeting to receive the $75.00. 7 During Britton's tenure as a supervisor /employee, from approximately 1996 through 2003, the Barr Township road crew was primarily composed of Ralph Dumm, Brian Birchall, and a township supervisor who held the roadmaster position. a. The supervisor in the roadmaster position performed physical labor with the road crew on an as- needed basis. b. Dumm and Birchall worked full time in their capacity as road crew employees. c. The road crew normally worked 7:OOa to 3:OOp, Monday through Friday with a one -half hour paid lunch period. 1. Hours occasionally changed to 6:OOa to 4:OOp with a four day work week in the summer months. Britton, 04 -041 Page 4 2. Exceptions to this schedule occasionally occurred due to inclement weather, emergencies, etc. d. Britton served as roadmaster in 1999, 2000 and 2001. 8. The supervisor in the roadmaster position would meet Dumm and Birchall each morning at the township garage to address work to be performed that day. a. The roadmaster occasionally met Dumm and Birchall in the afternoon to discuss work to be completed the following day. b. When not working with Dumm and Birchall, the roadmaster occasionally traveled to the work site to check work performed. 9. The board of supervisors authorized the individual serving in the roadmaster position to expend up to $1,000.00 per item in the furtherance of his duties without specific authorization of the remaining supervisors. a. Britton made purchases up to $1,000 as township roadmaster in 1999, 2000 and 2001. b. Britton continued authorizing purchases in 2002 and 2003 with no prior vote or approval by the board after he no longer served as the township roadmaster. 10. Britton, in his capacity as secretary /treasurer and /or manager, was responsible for placing bid advertisements or obtaining price quotes if applicable. a. Britton would be advised of supplies or services needed by the board of supervisors or roadcrew employees. b. Britton did not publicly advertise for bids regarding materials needed if the estimated cost did not exceed the $10,000.00 bidding threshold as documented in the Second Class Township Code. c. Britton did routinely obtain verbal price quotes from at least three separate companies regarding the price of the materials needed. 11. After a price was obtained, Britton routinely placed the order for the parts or materials or instructed the remaining supervisors or road crew on where to purchase the needed items. 12. Orders placed and /or purchases made were not consistently discussed with or approved by the board prior to the purchase. a. The board approved the purchases after the fact by the approval of the monthly bills at the regular supervisors' meetings. b. Although no formal vote approving the purchases occurred prior to the purchase, at least one of the remaining supervisors was aware of the purchase(s) prior to the purchase(s) being made. THE FOLLOWING FINDINGS RELATE TO BRITTON REIMBURSING HIMSELF TOWNSHIP FUNDS IN EXCESS OF THE AMOUNT PERSONALLY INCURRED FOR HEALTH CARE INSURANCE Year Monthly Premiums Total Primary Care Supplemental Care Non - Facility Drug 1999/2000 $456.11 Included in Primary Care $91.09 $547.20 2000/2001 $353.11 Included in Primary $77.49 $430.60 Britton, 04 -041 Page 5 13. Barr Township has offered health care benefits to employees through Highmark Blue Cross /Blue Shield under Group Contract Number 44878 -15 since at least May 1995. a. Group Contract Number 44878 -15 is composed of three separate contracts: 1. A primary care designated gatekeeper health care contract utilizing the Keystone Health Plan West Network; 2. A supplemental medical - surgical health care contract for out -of- network services; and 3. An outpatient non - facility drug contract. 14. The effective dates of the contracts span from July 1 through June 30 of each respective year. a. The contract self- renews for twelve consecutive months and thereafter, year to year, unless terminated. b. Any increases in monthly premium rates become effective on July 1 as the contract renews. 15. Eligibility requirements for coverage under the group policy are set forth in the individual contracts. a. An eligible person is defined as a salaried employee of the group. b. An eligible person does not include any employee who is eligible for Medicare by reason of age and who has elected Medicare coverage in lieu of coverage offered by the group. c. An individual's eligibility date is the first day of the month following the date of employment. 16. Barr Township is responsible for payment to Highmark on or before the 20 day of the previous month for the current month's insurance coverage. a. Barr Township pays the entire premium for covered employees. b. Coverage categories include employee only; employee and child; employee and children; employee and spouse; and employee and dependents. 17. Monthly health care insurance premiums paid by Barr Township to Highmark from 1999 through 2004 for an eligible employee and his /her spouse are shown below: Year Monthly Premiums Total Primary Care Supplemental Care Non - Facility Drug Care 2001/2002 $420.95 Included in Primary Care $95.29 $516.24 2002/2003 $444.19 Included in Primary Care $100.95 $545.14 2003/2004 $761.00 Included in Primary Care $150.14 $911.14 Britton, 04 -041 Page 6 18. The health care contract regarding the Keystone Health Plan West Network sets forth a comprehensive program of inpatient and outpatient benefits provided at coordinated care and self- referred benefit levels. a. Various co- payments are required for services rendered under the contract. 1. The amount of the co- payment is determined by the service rendered. 19. The supplemental medical - surgical health care contract for out -of- network services entitles members to benefits for covered services when rendered by an out -of- network provider. a. Various co- payments are required for services rendered under the contract. 1. The amount of the co- payment is determined by the service rendered. 20. The outpatient non - facility drug contract sets forth a comprehensive program of outpatient drug coverage. a. Cost sharing options under the contract include deductibles, coinsurance, co- payment, and annual maximums 1. The amount of the co- payment depends on the prescription issued (i.e. generic or brand name). 21. Township employees utilizing township provided health care benefits are responsible for making any required co- payments. a. Co- payment in the primary contract and supplemental care contract is defined as: 1. For hospital or facility other providers, a specified dollar amount of the provider's reasonable charge which must be paid by the subscriber and which will be deducted from the provider's reasonable charge before determination of the benefits payable under this contract." 2. For professional providers or professional other providers, a specified dollar amount of the provider's reasonable charge which must be paid by the subscriber and which will be subtracted from the provider's reasonable charge before determination of the benefits payable under this contract." Britton, 04 -041 Page 7 c. Co- payment in the non - facility drug contract is defined as: 1. "A specified dollar amount of the provider's allowable price which must be paid by the subscriber and which will be donated from the provider's allowable price before determination of the benefits payable under this contract." 22. Prior to turning age sixty -five in December 1999, Britton and his spouse, Verda Britton, received health insurance benefits through Barr Township's group policy with Highmark Blue Cross /Blue Shield. a. Britton's date of birth is December 23, 1932. 1. Britton turned sixty -five on December 23, 1997. b. Verda Britton's date of birth is February 12, 1934. 1. Verda Britton turned sixty -five on February 12, 1999. 23. Just prior to turning age 65, Britton initiated action to be included in Highmark's Medicare insurance plan. a. Britton completed a Security Blue enrollment application on November 3, 1997. b. Britton elected to enroll in the Security Blue Standard Plan. 1. The Standard Plan and Basic Plan were the only plans offered at that time. 24. Highmark Blue Cross /Blue Shield offers Security Blue, a Medicare Advantage coordinated health care plan, through which individuals with Medicare Part A and B can receive supplemental health insurance coverage. a. Security Blue is offered in seventeen separate counties in Pennsylvania, including Cambria County. 25. Highmark Security Blue currently offers three separate plans, the basic plan, the standard plan, and the standard plan with deluxe option, for members who pay Security Blue directly and are not part of an employer group or trust fund. a. Monthly premiums due are based on the plan in which the member is enrolled. b. Services covered are based on the plan in which the member is enrolled. c. All plans offered require a co- payment or out -of- pocket maximum amount to be paid for covered services. d. Any increases in monthly premiums normally become effective January 1 of the applicable year. 26. Monthly Security Blue premiums per individual for calendar years 1999 through 2004 regarding the Standard Plan are shown below: Effective Dates Monthly Premium Britton, 04 -041 Page 8 Effective Dates January 1, 1999 - December 31, 1999 January 1, 2000 - December 31, 2000 January 1, 2001 - February 28, 2001 / March 1, 2001 - December 31, 2001 January 1, 2002 - December 31, 2002 January 1, 2003 — December 31, 2003 January 1, 2004 — February 29, 2004 / March 1, 2004 — December 31, 2004 Monthly Premium $35.00 $39.00 $57.00 / $48.00* $65.00 $97.00 $129.00 / $91.00* * Highmark reduced Security Blue premiums effective March 1, 2001 and March 1, 2004. a. Although monthly premium amounts are documented, individuals enrolled in Security Blue are billed on a quarterly basis. 27. Britton indicated on the Security Blue application his receipt of Medicare PartAand Part B effective December 1, 1997. a. Britton indicated that he would have no other health insurance through his or his spouse's employer when enrolled in Security Blue. 28. Medicare is composed of Part A (hospital insurance) and Part B (medical insurance). a. Medicare Part A (hospital insurance) assists in paying for care in hospitals as an inpatient, critical access hospitals, skilled nursing facilities, hospice care, and some home health care. 1. Most individuals receive Part A automatically when they turn age sixty -five. 2. Individuals, or an individuals spouse, who paid Medicare taxes for at least ten years while working are not required to pay a monthly premium for Part A. b. Medicare Part B (medical insurance) assists in paying for doctor's services, outpatient hospital care, and some other services that are medically necessary that Part A does not cover. c. Enrollment in Part B is optional. 1. Individuals can enroll in Part B coverage anytime during a seven - month period that begins three months prior to turning sixty -five. d. Premiums for Part B are usually automatically deducted from the individual's monthly Social Security, Railroad Retirement, or Civil Service Retirement Payment. 1. If the individual does not receive any of the payments listed above, Medicare sends the individual a bill for the Part B premium every three months. 29. Medicare Part B premiums for calendar years 1999 through 2004 are shown below: Britton, 04 -041 Page 9 1999 2000 2001 2002 2003 2004 $45.50 $45.50 $50.00 $54.00 $58.70 $66.60 a. Premiums noted above represent the monthly payment due per individual. b. Increases in Medicare Part B premiums become effective in January of each year. 30. Verda Britton continued to receive health care benefits through Barr Township's group policy after Britton was dropped from the township policy after reaching age 65. a. Verda Britton was not eligible, due to age, for Medicare Part A and B at that time. 31. At the January 5, 1998 regular township meeting, Britton and supervisors Lon Good and Bernard Birchall voted to pay the cost of Britton's monthly Medicare Part B premium and Security Blue premium as well as Verda Britton's premiums through the township's group policy. a. The supervisors opted to pay Britton's Part B and Security Blue premiums and drop Britton from the township's group policy as a cost savings measure. b. The vote passed unanimously (3 -0). 32. Verda Britton completed a Security Blue enrollment application on December 17, 1998. a. Verda Britton elected to enroll in the Security Blue Standard Plan. b. Verda Britton indicated on the application her receipt of Medicare PartAand Part B effective February 1, 1999. c. Verda Britton indicated that she would have no other health insurance through her or her spouse's employer when enrolled in Security Blue. 33. At the January 4, 1999 regular township meeting, Britton, Good, and Birchall voted to pay the cost of Britton's and Verda Britton's monthly Medicare Part B premiums and Security Blue premiums. a. The supervisors opted to pay Britton's and Verda Britton's Part B and Security Blue premiums as a cost savings measure. b. The vote passed with no abstentions noted. 34. Britton's and Verda Britton's Medicare Part B premiums were automatically deducted from the monthly Social Security Payments a. The Brittons were responsible for payment of their Security Blue premiums. b. The township did not issue checks to Medicare or Security Blue for the Brittons' coverage. Meeting Date Rate Approved Britton's Vote Final Vote January 4, 1999 $161.00 Yes 3 -0 January 3, 2000 171.00 Yes 3 -0 January 2, 2001 214.00 Abstain 2 -0 -1 January 7, 2002 310.00 Abstain 2 -0 -1 January 6, 2003 None No Vote No Vote January 5, 2004 None No Vote No Vote Britton, 04 -041 Page 10 35. Britton issued himself payments from the township's general fund on a monthly basis as reimbursement for expenses he and his spouse incurred in payment of their premiums. a. Although Britton paid his and his spouse's Security Blue payments on a quarterly basis, Britton utilized, in part, monthly premium costs for Medicare Part B and Security Blue, to determine their monthly reimbursement. 36. The Barr Township supervisors approved payment of the Brittons' Medicare Part B and Security Blue premiums at the January regular meetings from 1999 through 2002 shown below: a. The rate approved represented the total cost for Medicare Part B and Security Blue for both Britton and Verda Britton. b. No vote is documented in the minutes approving the payment of Britton's and Verda Britton's Medicare Part B and Security Blue premiums for 2003 or 2004 37. Although not voted on or approved by the supervisors, Britton continued to issue himself checks as reimbursement for premiums paid personally for his and Verda Britton's Medicare Part B and Security Blue premiums in 2003 and 2004. a. Although no specific vote was taken in 2003 and 2004 regarding the Britton's health care coverage, the remaining supervisors were aware that the township was paying the Britton's health care coverage during those years. 38. In addition to issuing reimbursement to his and his spouse's health insurance premiums, Britton reimbursed himself for any co -pays he or his spouse incurred. a. The township agreed to reimburse the co -pays due to the significant savings the township realized as a result of the Brittons not participating in the township's group insurance coverage. b. The co -pays were to be reimbursed as long as the total reimbursement to the Brittons for Medicare Part B, Security Blue and co -pays incurred totaled less than the cost of employee and spouse coverage through the township's group policy. 39. Britton calculated the average cost of co -pays that he and Verda Britton accumulated from 1997 to determine the total amount of reimbursement due on a Personal Check Number Coverage Dates Amount Received/ Applied Tom Britton Verda Britton Total 1014 01/2000 — 03/2000 117.00 117.00 234.00 1060 04/2000 — 06/2000 117.00 117.00 234.00 1116 07/2000 — 09/2000 117.00 117.00 234.00 1168 10/2000 — 12/2000 117.00 117.00 234.00 001228 01/2001 — 03/2001 171.00 171.00 342.00 001276 04/2001 — 06/2001 135.00 135.00 270.00 Britton, 04 -041 Page 11 monthly basis. a. Britton's total monthly reimbursement was composed of his Medicare Part B premium, Security Blue premium, and accumulated co -pays regarding monthly prescriptions and doctors visits. b. Britton did not begin reimbursing himself for co -pays incurred until approximately 2001. 40. Britton submitted no documentation verifying the accuracy of the reimbursement he was providing himself. a. Britton personally generated a general invoice noting the number of the check he issued himself, the amount of the check, and a brief description of why the check was issued (i.e. To Tom Britton for Security Blue "). b. Britton read checks issued to himself as reimbursement during the reading of the monthly bills of board of supervisors meetings. 41. From January 2000 through April 2004, Britton and Verda Britton made monthly payments for Medicare Part B via automatic social security deduction totaling $5,529.60 as shown below: Time Period Monthly Total Premiums Premium (Britton and Spouse) 01/2000 — $45.50 $1,092.00 12/2000 01/2001 — $50.00 $1,200.00 12/2001 01/2002 — $54.00 $1,296.00 12/2002 01/2003 — $58.70 $1,408.80 12/2003 01/2004 — $66.60 $532.80 4/2004 Total $5,529.60 a. Monthly premiums shown represent premiums per individual. 42. From November 1999 through April 2004 Britton and Verda Britton issued payment to Highmark Security Blue via personal checks totaling $6,892.00 as shown below: Month/Year Medicare Part B Premium (Britton & Spouse) Security Blue Premium (Britton & Spouse) Reimbursement Due January 2000 $91.00 $78.00 $169.00 February 2000 91.00 78.00 169.00 March 2000 91.00 78.00 169.00 April 2000 91.00 78.00 169.00 May 2000 91.00 78.00 169.00 June 2000 91.00 78.00 169.00 July 2000 91.00 78.00 169.00 August 2000 91.00 78.00 169.00 September 2000 91.00 78.00 169.00 October 2000 91.00 78.00 169.00 November 2000 91.00 78.00 169.00 Personal Check Number Coverage Dates Amount Received/ Applied Tom Britton Verda Britton Total 001315 07/2001 - 09/2001 144.00 144.00 288.00 001344 10/2001 - 12/2001 144.00 144.00 288.00 001377 01/2002 - 03/2002 195.00 195.00 390.00 001410 04/2002 - 06/2002 195.00 195.00 390.00 001447 07/2002 - 09/2002 195.00 195.00 390.00 001484 10/2002 - 12/2002 195.00 195.00 390.00 001508 01/2003 - 03/2003 291.00 291.00 582.00 001533 04/2003 - 06/2003 291.00 291.00 582.00 001563 07/2003 - 09/2003 291.00 291.00 582.00 001591 10/2003 - 12/2003 291.00 291.00 582.00 001619 01/2004 - 03/2004 387.00 387.00 774.00 001642* 04/2004* 53.00 53.00 106.00 Total 6,892.0 0 Britton, 04 -041 Page 12 Check # 1642 written in the amount of $470.00 for the second quarter; however, Britton resigned effective April 2004 and was entitled to reimbursement for that month only. a. Britton and Verda Britton were billed individually for their Security Blue coverage but issued one personal check to Security Blue for both premiums. 43. Britton's reimbursement for health insurance co -pays incurred by him and his spouse discriminated in Britton's favor in comparison with health insurance benefits received by the remaining township employees. a. Employees covered under the township's group health insurance policy were not reimbursed for co -pays incurred.. . 44. Over the time period of January 2000 through April 2004, Britton was entitled to monthly reimbursement from the township totaling $12,421.60 for personal payments made for health care premiums associated with himself and his spouse, as shown below: Month/Year Medicare Part B Premium (Britton & Spouse) Security Blue Premium (Britton & Spouse) Reimbursement Due December 2000 91.00 78.00 169.00 January 2001 100.00 114.00 214.00 February 2001 100.00 114.00 214.00 March 2001 100.00 96.00 196.00 April 2001 100.00 96.00 196.00 May 2001 100.00 96.00 196.00 June 2001 100.00 96.00 196.00 July 2001 100.00 96.00 196.00 August 2001 100.00 96.00 196.00 September 2001 100.00 96.00 196.00 October 2001 100.00 96.00 196.00 November 2001 100.00 96.00 196.00 December 2001 100.00 96.00 196.00 January 2002 108.00 130.00 238.00 February 2002 108.00 130.00 238.00 March 2002 108.00 130.00 238.00 April 2002 108.00 130.00 238.00 May 2002 108.00 130.00 238.00 June 2002 108.00 130.00 238.00 July 2002 108.00 130.00 238.00 August 2002 108.00 130.00 238.00 September 2002 108.00 130.00 238.00 October 2002 108.00 130.00 238.00 November 2002 108.00 130.00 238.00 December 2002 108.00 130.00 238.00 January 2003 117.40 194.00 311.40 February 2003 117.40 194.00 311.40 March 2003 117.40 194.00 311.40 April 2003 117.40 194.00 311.40 May 2003 117.40 194.00 311.40 June 2003 117.40 194.00 311.40 July 2003 117.40 194.00 311.40 August 2003 117.40 194.00 311.40 September 2003 117.40 194.00 311.40 October 2003 117.40 194.00 311.40 November 2003 117.40 194.00 311.40 December 2003 117.40 194.00 311.40 January 2004 133.20 258.00 391.20 February 2004 133.20 258.00 391.20 March 2004 133.20 182.00 315.20 April 2004 133.20 182.00 315.20 Total 5,529.60 6,892.00 12,421.60 Britton, 04 -041 Page 13 Meeting Date Check Date Check Number Check Amount Amount Due Excess Britton's Vote Signatories 01/03/00 01/03/00 634 $171.00 $169.00 $2.00 Yes (3 -0) Britton /Birchall 02/14/00 02/01/00 680 171.00 169.00 2.00 Yes (3 -0) Britton /Birchall 03/13/00 03/03/00 725 171.00 169.00 2.00 Yes (3 -0) Britton /Birchall 04/10/00 04/01/00 773 171.00 169.00 2.00 Yes (3 -0) Britton /Birchall 05/08/00 05/19/00 838 171.00 169.00 2.00 Yes (3 -0) Britton /Birchall 06/12/00 06/05/00 853 171.00 169.00 2.00 Yes (3 -0) Britton /Birchall 07/10/00 07/03/00 888 171.00 169.00 2.00 Yes (3 -0) Britton /Birchall 08/04/00 08/04/00 935 171.00 169.00 2.00 Yes (3 -0) Britton /Birchall 09/11/00 09/01/00 958 171.00 169.00 2.00 Yes" Britton /Birchall 10/09/00 10/02/00 983 171.00 169.00 2.00 Absent Britton /Birchall 11/13/00 11/01/00 1010 171.00 169.00 2.00 Yes" Britton /Birchall 12/11/00 12/01/00 1046 171.00 169.00 2.00 Yes" Britton /Birchall 01/02/01 01/02/01 1081 214.00 214.00 0.00 Yes (3 -0) Britton /Birchall 02/12/01 02/01/01 1121 214.00 214.00 0.00 Yes" Britton /Birchall 03/12/01 03/02/01 1166 214.00 196.00 18.00 Abstain Britton /Birchall 04/09/01 04/02/01 1210 214.00 196.00 18.00 Abstain Britton /Birchall 05/14/01 05/01/01 1243 214.00 196.00 18.00 Yes (3 -0) Britton /Birchall 06/11/01 06/01/01 1290 214.00 196.00 18.00 Abstain Britton /Birchall 07/09/01 07/06/01 1341 214.00 196.00 18.00 Yes (3 -0) Britton /Birchall 08/13/01 08/01/01 1363 264.00 196.00 68.00 Yes (2 -0) Britton /Birchall 09/10/01 09/03/01 1405 264.00 196.00 68.00 Yes (2 -0) Britton /Brawley 10/08/01 10/01/01 1434 264.00 196.00 68.00 Yes" Britton /Birchall 11/26/01 11/01/01 1474 264.00 196.00 68.00 Yes (3 -0) Britton /Birchall 12/10/01 12/01/01 1504 264.00 196.00 68.00 Yes (3 -0) Britton /Birchall 01/07/02 01/02/02 1550 310.00 238.00 72.00 Yes (3 -0) Britton /Brawley 02/11/02 02/01/02 1578 310.00 238.00 72.00 Yes (3 -0) Britton 03/11/02 03/01/02 1630 310.00 238.00 72.00 Yes (3 -0) Britton /Rietscha 04/08/02 04/01/02 1668 310.00 238.00 72.00 Yes" Britton /Rietscha 05/13/01 05/01/02 1703 310.00 238.00 72.00 Yes (3 -0) Britton /Rietscha 06/10/02 06/07/02 1748 310.00 238.00 72.00 Yes (3 -0) Britton /Rietscha 07/08/02 07/01/02 1781 350.00 238.00 112.00 Yes (3 -0) Britton /Rietscha 08/12/02 08/01/02 1827 350.00 238.00 112.00 Yes (3 -0) Britton /Rietscha 09/09/02 09/03/02 1875 350.00 238.00 112.00 Yes" Britton /Rietscha 10/14/02 10/01/02 1910 350.00 238.00 112.00 Absent Britton /Rietscha 11/11/02 11/01/02 1948 425.00 238.00 187.00 Yes (3 -0) Britton /Rietscha 12/09/02 12/02/02 1984 425.00 238.00 187.00 Yes (3 -0) Britton /Rietscha 01/06/03 01/03/03 2028 425.00 311.40 113.60 Yes (3 -0) Britton /Rietscha 02/10/03 02/03/03 2072 425.00 311.40 113.60 Yes (3 -0) Britton /Rietscha 03/10/03 03/04/03 2109 425.00 311.40 113.60 Yes (3 -0) Britton /Rietscha 04/14/03 04/01/03 2148 425.00 311.40 113.60 Yes" Britton /Rietscha 05/12/03 05/01/03 2189 425.00 311.40 113.60 Yes" Britton /Rietscha 07/14/03 06/13/03 2256 425.00 311.40 113.60 Yes (3 -0) Britton /Rietscha 07/14/03 07/03/03 2272 425.00 311.40 113.60 Yes (3 -0) Britton /Rietscha 09/08/03 08/15/03 2333 425.00 311.40 113.60 Yes" Britton /Rietscha 10/13/03 09/09/03 2360 425.00 311.40 113.60 Absent Britton /Rietscha 11/10/03 10/28/03 2395 425.00 311.40 113.60 Yes (3 -0) Britton /Rietscha 12/08/03 11/12/03 2424 425.00 311.40 113.60 Yes (3 -0) Britton /Rietscha 12/08/03 11/20/03 2428 425.00 311.40 113.60 Yes (3 -0) Britton /Rietscha 01/05/04 12/15/03 2468 450.00 391.20 58.80 NA Britton /Rietscha 02/09/04 01/09/04 2490 450.00 391.20 58.80 NA Britton /Rietscha 03/08/04 02/11/04 2540 450.00 315.20 134.80 NA Britton /Rietscha 03/08/04 03/08/04 2579 375.00 315.20 59.80 NA Britton /Rietscha Total $15,805.00 $12,421.60 $3,383.40 Britton, 04 -041 Page 14 45. Britton routinely issued monthly reimbursement checks to himself which included co -pays incurred. a. Britton was responsible for calculating the amount of the monthly reimbursement while serving as supervisor- secretary/treasurer from January 1998 through December 2003 and as secretary/treasurer after his supervisor term expired in December 2003. 46. Britton, as a township supervisor, participated in votes to approve monthly bills which included reimbursements to him totaling $3,383.40 in excess of the insurance premiums incurred for Medicare Part B and Security Blue as shown below: `Yes" signifies instances where no specific vote split or abstention is documented in Year Reimbursement Due (Medicare & Security Blue) Reimbursement Received Excess Reimbursement 2000 $2,028.00 $2,052.00 $24.00 2001 $2,388.00 $2,818.00 $430.00 2002 $2,856.00 $4,110.00 $1,254.00 2003 $3,736.80 $5,100.00 $1,363.20 2004 $1,412.80 $1,725.00 $312.20 Total $12,421.60 $15,805.00 $3,383.40 Britton, 04 -041 Page 15 the minutes. a. Britton voted to approve the payment of monthly bills which included reimbursement checks written to himself in the excess amounts on thirty - eight out of forty -nine occasions. 1. Britton specifically abstained from voting on his reimbursement checks on three occasions. 2. Britton was absent from the regular meetings on three occasions. 3. Britton was not a supervisor in 2004. 4. Two of the checks Britton voted to approve were written for the proper amounts. b. Britton's signature appears as an authorized township signatory on all fifty - two checks issued as reimbursement. 1. Britton maintained signature authority over township accounts in his employee position of secretary /treasurer after his supervisor term expired in December 2003. 47. In a sworn statement provided to Commission Investigators on April 18, 2005, Britton testified as follows: a. The township realized a significant savings by paying his Medicare, Security Blue, and co -pays monthly in comparison with the monthly cost of insurance for an employee and spouse through the township group contract with Highmark; b. The quality of coverage received by Britton through Medicare and Security Blue was not as good as that received by township employees through the group insurance plan; c. When Britton dropped coverage through the township the township realized an additional savings due to an age reduction regarding those covered by the group; and d. Britton did not begin reimbursing himself for co -pays accumulated until 2001 because he had forgotten about reimbursing himself. 48. Britton and his spouse realized a private pecuniary gain of approximately $3,383.40 as a result of voting to reimburse himself and then issuing payments to himself which exceeded the costs for his health care insurance as shown below: Britton, 04 -041 Page 16 THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT BRITTON AUTHORIZED PENSION PAYMENTS TO HIMSELF WITHOUT BOARD OF SUPERVISORS APPROVAL 49. Barr Township has maintained a non - uniformed pension plan for employees through Baltimore Life Insurance Company, since at least November 12, 1991. a. The application for the Group Deferred Annuity Policy was signed by Britton as the township secretary /treasurer and Giles Dumm as the chairman of the board of supervisors at that time. b. The pension fund was initially established with Columbia Insurance effective January 1, 1980 50. The Barr Township Non - Uniformed Pension Fund is a guaranteed fund. a. Funds contributed by the township are maintained by Baltimore Life in one lump sum; however, Baltimore Life maintains records on the amounts specifically allocated to each eligible employee. 51. Individuals with funds allocated in their name at Baltimore Life may request the removal of all of or a portion of those funds at any time. a. The release of funds to an individual typically requires documentation noting the approval of the governing body. b. The township's policy initially required a 10% surrender fee to Baltimore Life on any withdrawals made by active members unless: 1. The withdrawal was made upon the death of the Annuitant, 2. The withdrawal was made upon the total disability of the Annuitant, or 3. The withdrawal was made for the purpose of purchasing from Baltimore Life a life annuity on the life of the Annuitant. c. The township's policy was amended in 2000 to allow lump sum withdrawals with no surrender fees if the member was retiring from the township and was at least sixty -five years of age. 52. Individuals removing all of their funds from Baltimore Life are not automatically removed from the township's non - uniformed pension fund. a. Individuals are documented as active members of the plan until the employee retires. 53. Employee eligibility regarding enrollment in the non - uniformed pension plan was initially established by resolution at a regular township supervisors' meeting. a. Multiple resolutions have been approved by the board of supervisors since the establishment of the plan which address eligibility requirements, contribution amounts, and other procedural issues. 54. The resolutions approved from November 1999 through December 2003 regarding Resolution Number Meeting Date Approved Township Contribution Amount 19991108 11/08/99 2,100.00 20001113 11/13/00 2,800.00 20031113 11/10/03 15% of prior year's wages Britton, 04 -041 Page 17 the township's non - uniformed pension fund were done as follows: a. Votes to approve the resolutions and contribution amounts documented therein were unanimously approved at the November meetings. 1. The contribution amount became effective as of the date of approval of the resolution. b. Britton was present and voted to approve the resolutions at the November meetings held in 1999, 2000 and 2003. 55. Resolution Numbers 19991108, 20001113, and 20031113 set forth the following mandates, among others, regarding the pension plan: a. All employees of the township who were paid on an hourly basis and employed more than one thousand hours in any year were eligible to receive a benefit; 1. Hours of service were determined on the basis of actual hours for which the employee was paid or entitled to payment. 2. Eligibility applied to only full -time employees who completed one thousand hours service for the year. 3. Barr Township considered employees to be employed on a full time basis regarding eligibility for the township pension fund if employees worked at least 1,000 hours in the calendar year. b. The benefit was to be invested in a township established pension plan; c. Benefits for the year were to be paid prior to close of the calendar year; and d. The board of supervisors and secretary were authorized to execute any and all documents necessary for the implementation of the pension plan. 56. Municipalities that offer employees enrollment in a municipal pension plan are eligible to receive funding from the Commonwealth of Pennsylvania through the Department of the Auditor General, Municipal Pensions and Fire Relief Programs Unit to offset the expense of the plan. a. State aid supplied is a reimbursement to the township of a portion of the total amounts contributed for eligible employees in the previous year. b. State aid provided to municipalities is based on hours worked by employees for the previous year. 57. The State mandates that municipalities with non - uniformed employee pension plans can receive reimbursement only for those employees who meet the following Britton, 04 -041 Page 18 requirements: a. Employees must be an active, full time non - uniformed employee of the municipality; b. Employees must be employed for any six consecutive months during the calendar year; c. Employees must work no less than thirty -five hours per week; and d. Employees must be a member of a pension plan and meet all its requirements. 58. Britton began employment with Barr Township as the township secretary /treasurer effective November 10, 1990. a. Britton held other positions and performed other functions, in addition to secretary /treasurer, throughout his tenure with the township, from 1990 until 2004. 59. As a township employee and subsequently a township supervisor, Britton was eligible for inclusion in the township pension fund contingent upon working 1,000 hours per calendar year. a. Contributions were made in Britton's name to the township non - uniformed pension fund each year from at least 1992 through 2001. b. Britton was eligible to receive the contribution in each of the years from 1992 through 2001 by virtue of working at least 1,000 hours each year as an employee of the township. 60. Britton, as the secretary /treasurer and pension fund officer from at least 1999 through 2003, was responsible for determining which Barr Township employees were eligible for township paid pension contributions. a. Britton typically totaled the number of hours worked by each township employee in the late fall /early winter months to determine the number of hours worked to that point. b. If the total was less than one thousand hours, Britton estimated the number of hours the employee should work by December 31 of that year based on the number of hours worked to date and the number of days remaining in the year. 1. If the estimated amount totaled one thousand hours or more, the employee was provided a pension fund contribution by the township. 61. At the December 10, 2001 regular supervisors' meeting, Britton requested his pension fund money held at Baltimore Life be released to him effective January 2002. a. Minutes confirm the request was "approved" with no specific vote split. 62. Correspondence dated December 31, 2001 was subsequently submitted to Lee D. Barnhart, Baltimore Life -Life of Maryland representative, addressing Britton's desire to withdraw the funds from his pension account. Britton, 04 -041 Page 19 a. The correspondence was written by Britton and signed by Birchall as the Chairman of the Board of Supervisors. b. The correspondence noted Britton's request for a full amount, one time payment. c. The correspondence noted Britton's retirement date of January 1, 2002. d. A copy of the December 10, 2001 minutes was attached as documentation of the governing body's approval. 63. Britton's request to withdraw the contents of his pension fund was received at Baltimore Life on January 10, 2002. a. Baltimore Life subsequently forwarded an Application for Cash Value Benefits form to Britton for completion. 64. Britton completed Baltimore Life's Application for Cash Value Benefits form on or about February 7, 2002 requesting the total surrender of his pension fund. a. "Date of Retirement 1 -1 -02" is documented in Britton's handwriting on the form. b. Birchall signed the application on February 7, 2002, effectively authorizing the withdrawal on behalf of the township. c. The application was received at Baltimore Life's claim department on February 13, 2002. 65. Baltimore Life issued check number 091255, dated February 26, 2002, to Barr Township in the amount of $17,821.41 as payment in full regarding Britton's pension payout. a. Britton's ending balance at the time the check was issued by Baltimore Life was $19,801.56. b. Britton's final payout was reduced by $1,980.15 to $17,821.41 due to the 10% surrender fee. 1. Baltimore Life withheld 10% of Britton's funds even though the information received from the township indicated Britton was retiring and was over the age of sixty -five. c. The check received from Baltimore Life was deposited into the township General Fund. 66. Britton issued himself Barr Township General Fund check number 1635, dated March 5, 2002, in the amount of $17,821.41 for withdrawal of his pension fund from Baltimore Life. a. Britton signed the check issued to him as an authorized township signatory. b. The "For" section of the check issued to Britton noted "Surrender Retirement." 67. Check Number 1635 was presented for approval of the board of supervisors via the Britton, 04 -041 Page 20 reading of the monthly bills at the March 11, 2002 regular meeting. a. Minutes document Britton's presence at the meeting. b. The motion to pay the monthly bills passed 3 -0 with no abstention noted by Britton. 68. Between February 26, 2002, and March 18, 2002, Britton contacted Baltimore Life and requested that the ten percent withheld from his withdrawal be supplied to him because he was over sixty -five years of age and had retired from the township. a. Britton had not retired from the township and was employed as township secretary treasurer and pension fund officer. b. Britton was actively working for the township at the time he requested to be reimbursed the ten percent surrender fee held by Baltimore Life 69. Based on Britton's request, Baltimore Life issued Barr Township check number 093109, dated March 18, 2002, in the amount of $1,980.15. a. The amount represented the return of the 10% surrender fee. b. The check received by the township from Baltimore Life was deposited into the township General Fund. 70. Britton issued himself Barr Township General Fund check number 1655, dated March 20, 2002, in the amount of $1,980.15 for the balance of his pension fund from Baltimore Life. a. Britton signed the check issued to himself as an authorized township signatory. b. The "For" section of the check issued to Britton noted "Pension Fund." 71. Check Number 1655 was presented for approval of the board of supervisors via the reading of the monthly bills at the April 8, 2002 regular meeting. a. Minutes document Britton's presence at the meeting. b. The motion to pay the monthly bills passed with no abstention noted by Britton. 72. Britton did not retire from Barr Township as a Supervisor or employee on January 1, 2002. a. Britton was not entitled to the 10% surrender fee he realized via check number 1655. b. Absent Britton retiring, Baltimore Life was not required to provide the 10% surrender fee to Britton. 73. Britton provided false information to Baltimore Life regarding his retirement status in an effort to circumvent the 10% surrender fees required by the township's policy with Baltimore Life. Britton, 04 -041 Page 21 a. Britton was serving as a supervisor and was still employed by the township when his Application for Cash Value Benefits from Baltimore Life was completed on February 7, 2002. b. Britton was serving as a supervisor and was still employed as secretary /treasurer and pension fund officer by the township when he contacted Baltimore Life to request the $1,980.15 held by Baltimore Life as a surrender fee. 74. Britton was aware of the ten percent surrender fee required by the policy and the situations under which the surrender fee would not be applicable as a result of his township positions and personal experience. a. Britton was the pension fund officer or contact individual for Baltimore Life from at least 1993 through 2003. 1. Britton contacted Baltimore Life in 2000/2001 and requested surrender fees withheld from Bernard Keith to be forwarded because Keith was over sixty -five and retiring from the township. b. Britton had accumulated $4,359.90 in the township pension fund as of December 20, 1993. 1. Britton withdrew his entire pension fund balance on December 20, 1993. 2. Baltimore Life records document a withdrawal of $3,923.91 to Britton and surrender fees of $435.99 to Baltimore Life for a total of $4,359.90. 75. As a result of informing Baltimore Life that he had retired, Britton was not eligible for township contributions in his name to the pension fund held at Baltimore Life for 2002 and 2003. a. Britton worked the required number of hours for inclusion in the pension fund during those years. b. Baltimore Life records would have shown Britton as having retired in January 2002. 76. In an effort to continue to receive a pension fund contribution in those years, Britton issued himself a township check in an amount equal to the individual amounts deposited with Baltimore Life for eligible township individuals. a. Britton violated provisions of Barr Township Ordinance Number 20001113 which required investments in a township established pension plan. (Finding No. 95). 77. Barr Township issued General Fund check number 1922, dated October 2, 2002, to Baltimore Life Insurance Company in the amount of $8,400.00 in association with township pension contributions due to eligible employees for calendar year 2002. a. Accompanying the check was correspondence from Britton dated October 2, 2002, that detailed contribution amounts of $2,800.00 for Rietscha, Birchall, and Dumm for calendar year 2002. 78. As township secretary, Britton issued himself Barr Township General Fund check Britton, 04 -041 Page 22 number 1939, dated October 25, 2002, in the amount of $2,800.00 as payment due him in association with the township's pension fund policy. a. Britton signed the check issued to himself as an authorized township signatory. b. The "For" section of the check noted "2002 Pension Fund" c. Britton would not have been able to make a contribution to Baltimore Life in his name for calendar year 2002 because he had informed Baltimore Life he had retired in January 2002. 79. Check Number 1939 was presented for approval of the board of supervisors via the reading of the monthly bills at the November 11, 2002 regular meeting. a. Minutes document Britton's presence at the meeting. b. The motion to pay the monthly bills passed 3 -0 with no abstention noted by Britton. 1. Britton was one of three supervisors at the meeting. 80. Britton issued Barr Township General Fund check number 2402, dated October 28, 2003, to Baltimore Life Insurance Company in the amount of $8,400.00 in association with township pension contributions due to eligible employees for calendar year 2003. a. Accompanying the check was correspondence dated October 28, 2003, that detailed contribution amounts of $2,800.00 for Rietscha, Birchall, and Dumm for calendar year 2003. 81. Britton issued himself Barr Township General Fund check number 2337, dated August 15, 2003, in the amount of $2,800.00 as payment due him in association with the township's pension fund policy. a. The amount was the same as the contribution to the pension plan for each eligible township employee. b. Britton signed the check issued to himself as an authorized township signatory. c. The "For" section of the check noted "Pension Fund For 2003." d. Britton was not eligible to have a contribution to Baltimore Life made in his name for calendar year 2003 because he had informed Baltimore Life he had retired in January 2002. 82. Check Number 2337 was presented for approval of the board of supervisors via the reading of the monthly bills at the September 8, 2003 regular meeting. a. Minutes document Britton's presence at the meeting. b. The motion to pay the monthly bills passed with no abstention noted by Britton. 83. The board of supervisors were unaware that Britton was not eligible to have a pension payment made on his behalf to Baltimore. Britton, 04 -041 Page 23 a. The board was unaware the payment was going directly to Britton. 84. In a sworn statement provided to Commission Investigators on April 18, 2005, Britton testified as follows: a. He did not inform Baltimore Life that he had retired to avoid having his withdrawal diminished by ten percent; b. He felt he was entitled to the $1,980.15 that would have been withheld by Baltimore Life. 85. Britton realized a private pecuniary gain of $7,580.15 as a result of submitting false information to Baltimore Life to avoid surrender fees associated with the withdrawal of his pension fund monies and when he issued payment directly to himself for pension benefits in violation of Ordinance Number 20001113 as shown below: a. 2002 Surrender Fees received $1,980.15 b. 2002 Direct Payment $2,800.00 c. 2003 Direct Payment $2,800.00 d. Total $7,580.15 86. Britton and /or a business with which an immediate family member is associated, realized a total private pecuniary gain of $10,963.55 when he participated in decisions and actions as a township supervisor when he received health insurance benefits in excess of those received by other township employees by reimbursing himself for co- payments incurred; when he provided false information to Baltimore Life in order to circumvent payment of surrender fees associated with the withdrawal of his township pension; and when he issued payment directly to himself from the township for pension fund contributions in violation of the township ordinance associated with the pension fund. Description Amount Co- Payment Reimbursement 3,383.40 Pension Fund Surrender Fee 1,980.15 Direct Pension Fund Payments 5,600.00 Total $10,963.55 III. DISCUSSION: At all times relevant to this matter, the Respondent, Thomas Britton (Britton) has been a public official subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401, et seq., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegations are that Britton, as a Cambria Township Supervisor, violated §1103(a) of the Ethics Act when he participated in actions to approve payments to Barr Culvert, a business which is owned by his son; when he participated in board actions to award contracts to Barr Culvert in excess of $500 without an open and public process; when he authorized pension payments to himself to which he was not entitled; and when he reimbursed himself from township funds in excess of the amount provided for by the health care insurance. Britton, 04 -041 Page 24 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. The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows: Section 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. Britton served as a Barr Township Supervisor on the three member Board from February 1996 through December 2003. Britton also held other positions with the Township such as Secretary /Treasurer, Manager, Pension Fund Officer, SEO, Building Permit Officer, and Roadmaster. Britton received $75 per meeting as a Supervisor. In his Township employment positions, Britton routinely worked a 40 hour week for specified compensation. The Board of Supervisors authorized the Roadmaster to expend up to $1,000 per item for work - related matters without authorization from the other two Supervisors. Britton made purchases up to $1,000 as Township Roadmaster in the years 1999 through 2001. Britton continued to make purchases in 2002 and 2003 without any Board approval and did so when he was no longer Roadmaster. As Secretary /Treasurer or Manager, Britton had the responsibility for making bid advertisements or solicitations for quotes. Britton did not publicly advertise for bids unless the estimated cost exceeded the $10,000 threshold set forth in the Second Class Township Code. Britton routinely obtained verbal quotes from at least three vendors for needed materials. Once the price was obtained, Britton placed the order. Although there was no formal Board vote approving purchases, Britton usually apprised one of the other supervisors prior to making the purchases. Even though purchases were not consistently Britton, 04 -041 Page 25 discussed or approved by the Board prior to purchase, the Board approved the purchases after the fact as monthly bills. Barr Township offers health care benefits to its employees through Highmark Blue Cross /Blue Shield. Barr Township pays the entire premium for covered employees. Plan eligibility extends to salaried employees of the Township but not to those who meet eligibility and elect coverage under Medicare. For an eligible individual, coverage begins on the first day of the month following the date of employment. Health coverage may include different categories of insureds: employees only, employee and spouse, or employee and children /dependents. The health care program provides for in- patient and out - patient benefits and services with the insureds being responsible for certain co- payments. Before Britton and his spouse turned 65, they received health insurance benefits through the Township's group plan with Highmark. Highmark offered Security Blue, a Medicare Advantage Plan, to individuals who had Medicare Part A or B so that they could receive supplemental health insurance coverage. Highmark offered three separate plans: a Basic Plan, a Standard Plan and a Standard Plan with Deluxe Option. Such plans are for members who pay Security Blue directly and are not part of an employer group. Just prior to turning 65 on December 23, 1997, Britton initiated action to be included in Highmark's Medicare insurance plan with the Township. Britton's spouse, Verda, did not become 65 until February 12, 1999. When Britton applied to Highmark Security Blue, he indicated his receipt of Medicare Part A and Part B, effective December 1, 1997. Britton further stated that he did not have any other health insurance through his or his spouse's employer when he enrolled in Security Blue. Britton's spouse continued to receive health care benefits through the Township's group plan even after he was removed upon attaining 65. At that time, Verda was not eligible for Medicare A or B due to her age. At a January 5, 1998, regular township meeting, Britton and the other two supervisors voted to pay the cost of Britton's monthly Medicare B premium and Security Blue premium as well as Verda's premiums through the Township's group plan. Such action, which was taken as a cost savings measure, passed by a 3 -0 vote. On December 17, 1998, Verda Britton completed a Security Blue application, indicating her receipt of Medicare Part A and Part B, effective February 1, 1999. In addition, Verda stated that she had no other health insurance through her or her spouse's employer when she enrolled in Security Blue. At a township meeting in January 1999, Britton and the other two supervisors agreed to pay the cost of his and his spouse's monthly Medicare B premiums and Security Blue premiums, which motion passed with no abstentions noted. Britton and his spouse's Medicare Part B payments were automatically deducted from their monthly Social Security payments. However, the Brittons were responsible for the payment of the Security Blue premiums. Britton issued payments from the Township's general fund to himself on a monthly basis as reimbursement for the expenses he and his spouse incurred in payment of their premiums. The Board approved payments of Britton's Medicare Part B and Security Blue premiums at the January regular meetings from 1999 through 2002. Such actions covered the total cost for Medicare Part B and Security Blue for both Britton and his spouse. In 2003 and 2004, no votes are documented in the minutes for the approval of such payments. Britton continued to issue checks to himself as reimbursement for premiums paid on behalf of himself and his spouse for Medicare Part B and Security Blue premiums in 2003 and 2004. The other two supervisors were aware that the Township was paying Britton for such health benefits even though no specific votes were taken. Britton not only Britton, 04 -041 Page 26 reimbursed himself for the insurance premiums for himself and his spouse, but also for co- payments that he or his spouse incurred. From January 2000 through April 2004, Britton and his spouse made monthly payments for Medicare Part B through automatic Social Security deductions totaling $5,529. In addition, from November 1999 through April 2004, Britton and his spouse issued payments to Highmark Security Blue through personal checks in the amount of $6,892. The reimbursements that Britton received for health insurance co- payments incurred by him and his spouse discriminated in his favor because the remaining township employees were not reimbursed for co- payments. For the period January 2000 through April 2004, Britton was only entitled to reimbursements totaling $12,421.60 for payments made for health care premiums associated with himself and his spouse. Britton routinely issued monthly reimbursement checks to himself that included co- payments. Britton, as a Township Supervisor, participated in votes to approve monthly bills that included reimbursements to him totaling $3,383.40 in excess of the insurance premiums incurred for Medicare Part B and Security Blue. In addition, Britton co- signed 52 of the checks issued to him as reimbursements. Britton and his spouse realized a private pecuniary benefit of $3,383.40 in excess of the costs of the health care insurance. Britton asserts that the Township realized a savings by paying his Medicare and Security Blue; the coverage that Britton and his spouse received was not as good as that received by Township employees; the Township realized additional savings when Britton dropped coverage through the Township, and Britton did not reimburse himself for co- payments until 2001. In addition to health insurance plans, the Township also maintains a non - uniformed guaranteed pension plan for employees through the Baltimore Life Insurance Company (Baltimore Life). The Township makes its contributions to Baltimore Life that maintains the fund in one lump sum and records the amounts allocated for each employee. Township employees in the pension plan may request the payment of all or a part of the funds at any time. A release of funds by an employee requires documentation verifying approval by the governing body. Any surrender requires a 10% fee for the withdrawal unless the payment occurs due to the death of the employee, the total disability of the employee, or the purchase of a life annuity by the employee from Baltimore Life. In 2000, the Township's policy was amended to allow lump sum withdrawals with no surrender fees if the member would retire and be at least 65 years of age. Employees who would remove all of their funds were not automatically removed from the Township fund because they would be treated as active members of the plan unless retired. A number of Township resolutions dealt with plan enrollment as well as eligibility requirements, contribution amounts and other procedural issues. Britton participated and voted to approve resolutions in 1999, 2000 and 2003 regarding changes in the plan. Such resolutions provided in part that all full -time employees of the Township who worked on an hourly basis for more than 1,000 hours a year would be eligible to receive pension benefits. Municipalities that offer employees enrollment plans and municipal pension plans may receive funding from the Commonwealth of Pennsylvania. The Commonwealth imposes certain requirements for non - uniform employee pension plans for payments on behalf of employee. Such employees must: be active, full -time, and non - uniformed; maintain employment for six consecutive months during the calendar year; work no less than 35 hours per week; be a member of the pension plan; and meet all of its requirements. As a Township employee and Supervisor, Britton met eligibility for inclusion in the Township fund. Contributions were made in Britton's name in the Township non - uniform pension plan from at least 1992 through 2001 based upon his working at least 1,000 hours each year as an employee of the Township. As a Secretary /Treasurer and Pension Fund Britton, 04 -041 Page 27 Officer from 1999 through 2003, Britton was responsible for determining which Township employees were eligible for Township paid pension contributions. At a December 2001 meeting of the Board of Supervisors, Britton requested that his pension fund money be paid to him. The minutes reflect approval of the request with no specific votes listed. In a letter dated December 31, 2001 to Baltimore Life, Britton made a request for the full amount of his pension in a lump sum payment noting his retirement date of January 1, 2002. Baltimore Life forwarded a cash value benefits form to Britton for completion, which he completed and returned to Baltimore Life. Thereafter, Baltimore Life issued a check dated February 26, 2002 to Barr Township in the amount of $17,821.41 as payment in full regarding Britton's pension payout. The actual ending balance for Britton's pension was $19,801.56, as reduced by a 10% surrender fee to $17,821.41. Baltimore Life withheld the 10% even though the information received from the Township indicated that Britton was retiring and was over 65 years of age. After the check was deposited into the Township's general fund, Britton issued himself a check in the amount of $17,821.41 representing the withdrawal of his pension from Baltimore Life. Britton, as an authorized Township signatory, co- signed the check issued to himself. The check was submitted with a list of monthly bills for approval. A motion to pay the monthly bills passed on a 3 -0 vote with no abstention by Britton. Britton contacted Baltimore Life and requested that the 10% hold back be supplied to him because he was over 65 years of age and was retired from the Township. However, Britton had not retired from the Township and continued employment as the Secretary /Treasurer and Pension Fund Officer. Thus, Britton was actively working for the Township when he requested the 10% surrender fee from Baltimore Life. Based upon Britton's assertions, Baltimore Life issued a check to the Township in the amount of $1,980.15 that equaled the 10% hold back surrender fee. The check was received and deposited into the general fund of the Township. Britton then issued a check to himself from the general fund in the amount of $1,980.15. The check was presented along with monthly bills at the April Board meeting. The minutes reflect Britton's presence and the lack of any abstention as to the vote to pay the monthly bills. Since Britton did not retire from the Township, he was not entitled to the 10% surrender fee. In order to circumvent the 10% surrender fee, Britton had provided false information to Baltimore Life regarding his retirement status. Britton took such action despite his awareness of the 10% surrender fee limitations vis a vis his employment status with the Township. As a consequence of Britton informing Baltimore Life that he had retired, he was no longer eligible for Township contributions. Nevertheless, Britton added his name to the pension fund for 2002 and 2003. In an effort to receive pension fund contributions for those years, Britton issued himself a Township check in the amount equal to the amounts deposited with Baltimore Life for individual Township employees. Such actions by Britton were in direct violation of the Township ordinance regarding its pension plan. In October 2002, the Township issued a check in the amount of $8,400 to Baltimore Life for eligible employee contributions for employees Rietscha, Birchall and Dumm for the 2002 calendar year. Britton then issued a check to himself from the Township general fund in the amount of $2,800 as a payment to himself for the Township pension. Britton signed the check issued to himself as the authorized Township signatory. That check to Britton was submitted for approval at the November 2002 regular Board meeting. The minutes reflect that the monthly bills passed on a 3 -0 vote with no abstentions. For the calendar year 2003, Britton issued a Township general fund check in the amount of $8,400 to Baltimore Life for the pension contributions for the same three employees. Once again, Britton issued a check to himself from the Township general fund Britton, 04 -041 Page 28 in the amount of $2,800. Britton signed the check that was made payable to himself. The check was reviewed as part of the monthly bills for the September 2003 Board meeting; the motion passed with no abstentions noted. For the years 2002 and 2003, the other members of the Board of Supervisors were unaware that Britton was not eligible to have a pension payment made on his behalf and such members were unaware that payment was going to Britton. Britton asserts that he retired so that he would not have his retirement diminished by the 10% to which he was entitled. Britton received a private pecuniary benefit of $7,580.15 as a result of submitting false information to Baltimore Life about the $1,980.15 surrender fee and two $2,800 payments. Based upon the facts and circumstances in this case, Britton received a total private pecuniary benefit of $10,963.55 consisting of reimbursing himself for co- payments under the health plan totaling $3,383.40, the 10% surrender fee of $1,980.15 and two direct pension fund payments totaling $5,600. 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. "3. The Investigative Division will recommend the following in relation to the above allegations: a. That no violation of Section 1103(a) occurred regarding the allegation that Britton participated with a sale of Slate Rock to Barr Township. b. That no violation of Section 1103(a) occurred regarding the allegation concerning the sale of supplies from Barr Culvert to Barr Township. c. That a violation of Section 1103(a) of the Ethics Act occurred when Britton acted to reimburse himself for health insurance co- payments in the amount of $3,383.40. d. That a violation of Section 1103(a) of the Ethics Act occurred when Britton used the authority of his office to receive the pension fund surrender fee in the amount of $1,980.15. e. That a violation of Section 1103(a) of the Ethics Act occurred when Britton used the authority of his office to receive direct pension fund payments in the amount of $5,600.00. f. That no violation of Section 1103(a) occurred regarding the allegation that Britton received illegitimate wages as both a township supervisor and township employee. 4. Britton agrees to make payment in the amount of $10,963.55 in settlement of this matter. Said amount to be payable to 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." Consent Agreement, ¶3, ¶4. In reviewing the Consent Agreement, we note that the proposed disposition in part provides for no violation of §1103(a) of the Ethics Act as to the sale of Slate Rock, the sale Britton, 04 -041 Page 29 of supplies from Barr Culvert to the Township, and the receipt of wages by Britton as both a Supervisor and Township employee. As to these three matters, there are no facts of record from the stipulated findings to establish a violation of §1103(a) of the Ethics Act by clear and convincing proof. Accordingly, Britton did not violate §1103(a) of the Ethics Act as to the sale of Slate Rock to Barr Township, the sale of supplies from Barr Culvert to Barr Township and the receipt of wages as both a Supervisor and Township employee due to a factual insufficiency of the evidence. We shall now address the two remaining allegations concerning the Township health and pension plans. Regarding the Township health plans, there were uses of authority of office on the part of Britton. But for the fact that Britton was a Supervisor as well as a Township employee in various key positions, he would not have been in a position to reimburse himself for health insurance co- payments. Under the Township health insurance plan, the employees were required to make co- payments. However, Britton routinely issued monthly reimbursement checks to himself that included co- payments that he incurred as to medical services. Britton voted to approve the payment of monthly bills that included reimbursement checks to himself. In some instances Britton signed the checks as an authorized Township signatory. Such actions on the part of Britton were uses of authority of office. See, Juliante, Order 809. Such uses of authority of office on the part of Britton resulted in pecuniary benefits to himself in the amount of $3,383.40 that comprised co- payments that were in fact Britton's responsibility. By reimbursing himself from Township funds, Britton had no out of pocket expenses as to the co- payments. Since Britton was not entitled to such reimbursement, the pecuniary benefits he received as to the co- payments were private. Lastly, the private pecuniary benefits inured to Britton and his spouse, who is a member of his immediate family as that term is defined under the Ethics Act. The private pecuniary benefits totaled $3,383.40. Accordingly, Britton violated §1103(a) of the Ethics Act when he used the authority of office to have the Township pay $3,383.40 to him for health insurance co- payments for which he was obligated to make payment. Hessinger, Order 931; Wasiela, Order 932, affirmed in part; R.H. & T.W. v. SEC, 673 A.2d 1004 (Pa. Commw. 1996), No. 1732 C.D. 1994, No. 1733 C.D. 1994. Turning to the matter of the two pension fund issues, Britton used his position to obtain a surrender fee of $1,980.15 from Baltimore Life through which the Township maintains a non - uniform pension plan for its employees. The money at issue arose because Britton chose to withdraw his account from the pension fund. The plan was structured so that a withdrawal by a member required a 10% surrender fee unless the withdrawal occurred as a result of death, total disability, a purchase of an annuity or the retirement of the individual at age 65 or older. When Britton received 90% of his funds with the 10% being retained by Baltimore Life as the surrender fee, Britton made a false representation that he was retired. The facts of record establish that Britton continued in his employment with the Township. Britton used the authority of this office to misstate his retirement status so that he could obtain the 10% surrender fee from Baltimore Life. The 10% surrender fee totaling $1,980.15 was a pecuniary benefit. That pecuniary benefit was private because it was not authorized in law. In fact, the fee was contrary to the terms of the pension plan and the ordinance that only allowed the payment of the surrender fee to the employee if the individual was at least 65 and retired. That private pecuniary benefit inured to Britton. Accordingly, Britton violated §1103(a) of the Ethics Act when he used the authority of his office to obtain a pension plan surrender fee of $1,980.15 to which he was not entitled as a non - retiree. Zontek, Order 897. The second pension plan issue developed as a consequence of Britton's first transgression. Once Britton falsely represented to Baltimore Life that he was retired, there Britton, 04 -041 Page 30 could not be any more payments from the Township into the plan for Britton. However, Britton continued his employment with the Township and sought to obtain the $2,800 a year that the Township would be required to pay if he were not retired. Since Britton could not have a $2,800 payment going into a pension account for himself at Baltimore Life, given his retirement status with Baltimore Life, Britton took action to reimburse himself the $2,800 directly from the Township fund. Britton used the authority of office to issue checks from the Township fund in those two years, each in the amount of $2,800 to himself. In addition, Britton signed the checks to himself as an authorized Township signatory. Finally, Britton attended and participated in the Township Board meetings when the monthly bills, which included two payments to himself, were approved for payment. The minutes reflect Britton's presence and do not show any abstention on his part. Such actions were uses of authority of office on the part of Britton. The uses of authority of office resulted in pecuniary benefits consisting of the two payments of $2,800. The total of $5,600 that Britton received was a private pecuniary benefit because there was no authorization in law for Britton to receive those payments. Lastly, the payments inured to Britton himself. Accordingly, Britton violated §1103(a) of the Ethics Act when he used the authority of office to make two $2,800 payments to himself from the Township fund for a pension plan contribution after Britton represented that he had retired from employment with the Township. Hessinqer, Order 931. 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, Britton is directed to make payment in the amount of $10,963.55 in settlement of this matter. Said amount to be payable to 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. 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. Thomas Britton, as a Supervisor of Cambria Township, Cambria County, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Britton did not violate Section 1103(a) when he participated with a sale of Slate Rock to Barr Township due to a factual insufficiency of evidence. 3. Britton did not violate Section 1103(a) when Barr Culvert sold supplies to Barr Township due to a factual insufficiency of evidence. 4. Britton violated §1103(a) of the Ethics Act when he used the authority of office to have the Township pay $3,383.40 to him for health insurance co- payments for which he was obligated to make payment. 5. Britton violated §1103(a) of the Ethics Act when he used the authority of his office to obtain a pension plan surrender fee of $1,980.15 to which he was not entitled as a non - retiree. 6. Britton violated §1103(a) of the Ethics Act when he used the authority of office to make two $2,800 payments to himself from the Township fund for a pension plan contribution after Britton represented that he had retired from employment with the Township. Britton, 04 -041 Page 31 7. Britton did not violate Section 1103(a) when he received wages as both a township supervisor and township employee due to a factual insufficiency of evidence. In Re: Thomas Britton ORDER NO. 1381 File Docket: 04 -041 Date Decided: 12/12/05 Date Mailed: 12/23/05 1 Thomas Britton, as a Supervisor of Cambria Township, Cambria County, did not violate Section 1103(a) when he participated with a sale of Slate Rock to Barr Township due to a factual insufficiency of evidence. 2. Britton did not violate Section 1103(a) when Barr Culvert sold supplies to Barr Township due to a factual insufficiency of evidence. 3. Britton violated §1103(a) of the Ethics Act when he used the authority of office to have the Township pay $3,383.40 to him for health insurance co- payments for which he was obligated to make payment. 4. Britton violated §1103(a) of the Ethics Act when he used the authority of his office to obtain a pension plan surrender fee of $1,980.15 to which he was not entitled as a non - retiree. 5. Britton violated §1103(a) of the Ethics Act when he used the authority of office to make two $2,800 payments to himself from the Township fund for a pension plan contribution after Britton represented that he had retired from employment with the Township. 6. Britton did not violate Section 1103(a) when he received wages as both a township supervisor and township employee due to a factual insufficiency of evidence. 7 Per the Consent Agreement of the parties, Britton is directed to make payment in the amount of $10,963.55 to be payable to 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. 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