HomeMy WebLinkAbout1383 MakarIn Re: Robert W. Makar
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
05 -002
Order No. 1383
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 not 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter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.
Makar, 05 -002
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I. ALLEGATION:
That Robert Makar, a former public official /public employee, in his capacity as a
former Income Maintenance Worker for the Department of Public Welfare, Columbia
County Office, violated Sections 1103(a), 1103(g) and 1104(a) provisions of the State
Ethics Act (Act 93 of 1998), 65 Pa. .S. § §1103(a), 1103(g) and 1104(a) when he
represented clients before the Columbia County Board of Assistance within one year of
leaving employment as an Income Maintenance Case Worker; and when he used
confidential information obtained from his public position as an Income Maintenance Case
Worker for the benefit of clients he was representing in his capacity as a Paralegal for
North Penn Legal Services; and when he failed to file Statements of Financial Interests for
calendar years 2000 through 2004.
II. FINDINGS:
1. Robert Makar served as an Income Maintenance Caseworker (IMC) for the
Columbia County Assistance Office (CCOA) of the Pennsylvania Department of
Public Welfare (DPW) from approximately October 31, 1980 to June 25, 2004.
2. Records of the CCOA include a job description for the position of an IMC, which
included the following job requirements for Makar:
a. Conduct client eligibility interviews with recipients and applicants as
appropriate.
b. Make independent decisions regarding the determination of eligibility for
clients in regards to Income Maintenance Programs that include the
Disability Advocate Program (DAP).
c. Discussed clients' situation and available services along with agency
requirements to establish and maintain program eligibility.
d. Obtain eligibility information from clients, institutions, employers, and other
sources.
e. Enter clients' information into a computer database called CIS.
3. In addition to the duties listed on Makar's job description with CCOA he also
performed these services:
a. Fill out PA Form 731, a DAP referral form, that is sent out to the office of
Social Security Income (SSI) and Social Security Disability Income (SSDI).
b. Submit clients' medical information to the Medical Review Team (MRT) for
expert opinions to be provided on the clients' medical condition.
c. Arrange for client transportation to disability appearances /hearings.
d. Represent clients at their hearings as an advocate or arrange for a lawyer to
represent the clients.
e. Assist /remind clients to submit an appeal if denied benefits.
f. Provide clients with information on local attorneys and services that can
assist the clients throughout the appeals process.
Makar, 05 -002
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g.
Submit the appropriate documentation to file disability children for medial
assistance once a year.
4. The majority of Makar's cases at CCOA were part of the Disability Advocate
Program (DAP).
a. The DAP was established in 1985 so that individuals who are disabled and
on public assistance, medical assistance or receiving food stamps can
acquire SSI or SSDI.
b. Individuals eligible for DAP must have a physical or mental disability which
prevents them from working for at least twelve months.
5. Makar, as an IMC had access to confidential medical records pertaining to his
clients.
a. These records are not available to the general public and can only be
acquired through a signed release by the client.
b. Makar would use these records to advocate for his clients' benefits.
6. While working for CCOA, Makar would professionally interact with the following
entities on behalf of his clients:
a. SSI /SSDI through local social security offices.
b. The Bureau of Disability Determination (BDD), a bureau within DPW.
c. Appeals before an Administrative Law Judge at Hearing and Appeals office.
7 Makar's interaction before the entities listed in the previous finding on behalf of
CCOA clients consisted of the following:
a. Makar would set up a client assessment appointment at the SSI /SSDI office
to discuss the client's disability.
b. After the assessment appointment, the client's case goes before the BDD for
a determination if the client is qualified for either /or SSI and SSDI benefits.
1. The BDD is a Commonwealth agency funded by the federal
government independent of CCOA.
c. If the client is denied benefits by the BDD, the case can be appealed to the
Hearing and Appeals office.
1. An Administrative Law Judge presides over the hearing and
determines if the client is eligible for any form of assistance.
8. As part of his public position, Makar would represent clients in hearings held before
an Administrative Law Judge at the Hearing and Appeals office.
a. The appeals process did not affect Makar's compensation as an employee of
CCOA.
9. During the process to acquire assistance for clients, Makar would submit his client's
medical information to Medical Review Team (MRT), Action Review Group, P.O.
Box 145, 410 Second Avenue, Jessup, PA 18434, to review.
Makar, 05 -002
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a. The MRT is a privately operated organization under contract with the
Commonwealth to provide the advocate with expert medical /vocational
opinions as to a client's disability.
1. All medical, social, and vocational information is reviewed by a
physician and vocational counselor in order to make a determination
of disability according to Social Security rules and regulations.
b. Basic guidelines used by CCOA caseworkers when sending case to MRT
included the following:
"Borderline cases — cases in which the advocate is
unsure as to whether to appeal either an initial or
reconsideration denial. Cases that the advocate is
certain of the client's disability, but the case needs to
be pulled together — the MRT will cite specific listings,
as well as provide the vocational report. Cases in
which the advocate feels there is something missing
which would make the case stronger. The MRT will
recommend additional testing /information which is
needed. Cases in which the attorney requests a MRT
review."
c. CCOA caseworkers were encouraged to utilize the expertise of MRT for the
benefit of clients.
d. MRT's opinions were thought to have an impact with Administrative Law
Judges when determining client eligibility.
10. On or about June 27, 2004, Makar learnel that a position was available at North
Penn Legal Services (NPLS), 168 East 5 Street, Bloomsburg, PA 17815, for a
paralegal to handled DAP related cases.
a. The position was advertised in the Press - Enterprise newspaper.
b. Makar applied for the position in response to the advertisement.
c. This position was advertised two (2) days after Makar retired from the
Commonwealth as a CCOA employee.
11. NPLS is a non profit organization that is committed to providing legal assistance for
individuals who are unable to afford such services.
a. In relation to welfare benefits, NPLS provides services that would help
clients appeal their denied cases.
12. On or about August 30, 2004, Makar was hired by Gary Wamser, Esquire of North
Penn Legal Services (NPLS).
a. Wamser was familiar with Makar and had knowledge of his abilities as a
CCOA employee.
b. Wamser hired Makar with the intent of Makar performing similar duties as
those he performed while employed at CCOA.
13. NPLS official business records include a job description for Makar as a paralegal
Makar, 05 -002
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performing the following duties:
a. Provide outreach and community education to community groups and
agencies which serve low income individuals.
b. Represent clients at hearings and appeals.
c. Provide brief service and telephone advice for welfare and self sufficiency,
including parent's access to education, training and supportive services.
d. Provide backup advice and technical assistance to social services and
community groups which serve the interests of low income individuals.
e. Address systemic issues which affect low income individuals, consistent with
LSC guidelines.
f. Actively participate in statewide team of public benefit advocates.
g.
Provide training and assistance to NPLS staff on welfare related issues.
14. In addition to Makar's job description as a paralegal for NPLS he also performs the
following:
a. Collect client information that can be valuable to secure benefits for that
individual.
b. Discuss client's situation and available avenues to establish and maintain
program eligibility by fulfilling the appropriate requirements.
15. NPLS is funded by the Legal Services Corporation, Pennsylvania Legal Services
and the Department of Public Welfare (DPW).
a. Funding from these three entities vary from month to month, depending on
what caseloads NPLS is handling.
16. Makar's position within NPLS is a part of the Public Benefits Project.
a. The Public Benefits Project was created to strive to make the Pennsylvania
Welfare System among the most humanitarian in its treatment of clients,
enable clients to get the benefits to which they are entitled, and to help many
of NPLS' clients advance out of poverty.
17. Makar's position with NPLS is funded by an Access to Justice Grant.
a. Funding for this grant is from civil court filing fees which are provided to legal
aide agencies.
b. DPW does not play any role in funding for this grant.
18. At NPLS, Makar is assigned clients who are appealing a denial to receive SSI
and /or SSDI.
a. These cases are DAP related and identical to those Makar handled while
employed by CCOA.
b. The clients Makar is advocating for at NPLS have gone through the CCOA
process and have been denied DAP related benefits at the BDD level.
Makar, 05 -002
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19. If a CCOA client is denied benefits, they are provided a handout that lists available
legal services and attorneys in the area.
a. Thirteen entities are listed on the handout including contact information
covering the Bloomsburg, Berwick, Danville, Towanda, and Scranton
geographical areas.
b. NPLS' telephone number appears on this handout.
c. IMCs inform clients that NPLS does not charge for its services whereas other
law firms do.
d. NPLS has represented a number of former CCOA clients.
20. When determining a course of action for a client, Makar has made contacts with the
CCOA.
a. Makar's contacts included requesting CCOA caseworkers secure
recommendations from MRT on behalf of clients.
21. From September 9, 2004, to May 31, 2005, Makar has contacted employees of his
prior governmental body (CCOA) about twenty -three clients he has and /or is
representing at NPLS.
a. These contacts were made within a one year period of Makar's retirement
from CCOA.
b. Out of the twenty -three clients, sixteen of them were previously represented
by Makar at CCOA.
c. Of these sixteen clients, Makar has successfully advocated for seven of
them.
22. The following list details the sixteen clients that Makar represented while employed
at CCOA and later, within a one (1) year period of his retirement at NPLS:
Jarrod Pifer
Steven Dimick
Laura Harbaugh
Deon Reese
Thomas Holloway
Raymond Bott
Shirley Larry
Fred Bardo
Linda Holloway
Brett Santee
Randy Tripp
Randie Swinger
Larry Karchner
Magda Cosme
Michelle Wisiak
Robert Longenberger
a. Of these sixteen, Makar was successful in securing benefits while employed
by NPLS for Jarrod Pifer, Linda Holloway, Laura Harbaugh, Randy Tripp,
Dean Reese, Shirley Larry, and Michelle Wisiak.
23. When Makar is successful for a client, that individual is removed from state benefits
and awarded federal benefits.
a. The function of NPLS is as a cost saving measure to the Commonwealth.
24. NPLS as a non profit organization fills out a 1696 form at the appeals hearing
certifying that neither NPLS nor Makar will receive any compensation from their
Makar, 05 -002
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client if the case is won.
a. This same form was filled out by Makar as a CCOA employee.
b. The only compensation Makar receives is his salary provided by the Access
to Justice Grant.
25. Clients that [sic] Makar has previously represented at CCOA have contacted NPLS
for legal representation as a result of contact information provided to them by
CCOA.
26. Makar has not solicited prior CCOA clients on behalf of NPLS.
27. Some former CCOA clients of Makar sought out NPLS for representation and have
been assigned to Makar.
a. NPLS was contacted by the client as a result of being included on the CCOA
handout.
b. NPLS was contacted by many individuals since they provide legal services
free of charge.
28. Makar generally has only brief interactions with clients either by office appointment
or by phone contact. The nature of these interactions involved briefing the client of
his /her case status, having the client sign documents, and representing the client at
his /her hearing.
29. Since September 9, 2004, Makar has contacted CCOA employees through e -mails
and faxes inquiring about medical information on prior clients he has represented at
CCOA. Makar has contacted the following CCOA employees:
a. Diane Belusko, Executive Director.
b. Gloria Simons, Supervising Intake Caseworker.
c. Sabrina Kreischer, Supervisor of Income Maintenance Caseworkers.
d. Mike Bucher, DAP related Income Maintenance Caseworker.
30. From September 15, 2004, to January 14, 2005, Makar made contact with
employees of CCOA, his prior governmental body, seven times.
a. This contact was made within a one year period of Makar leaving the
CCOA's employment.
31. Makar's contacts before CCOA within one year of leaving employment included the
following:
a. On September 15, 2004, Makar e- mailed Sabrina Kreisher requesting that
any medical records on Randy Tripp be sent to MRT.
b. On December 8, 2004, Makar faxed Diane Belusko, Executive Director,
CCOA, stating that he is appealing a decision of Heather Kelly. In the fax,
Makar states, We have medicals to get the ball rolling and will bring or mail
these to you for their (MRT) opinion to see what we missed the first time."
c. On December 15, 2004, Makar sent a fax to Belusko informing her that he
Makar, 05 -002
Page 8
told his client, Raymond Bott, to ask Michael Bucher, to review his (Bott's)
case and get an opinion from MRT." Makar asked in the e-mail, Has Mike
(Bucher) done this yet ?"
d. On December 22, 2004, Makar faxed Belusko stating that he is preparing for
an appeal hearing for Shirley Larry and Laura Harbaugh. Makar requested
that these individuals' medical information be sent to MRT so that we can
have their expert opinion for further (case) development."
e. In an e-mail dated December 23, 2004, Makar writes the following to
Belusko, "I will bring our medical records over for you to copy and send to
MRT."
f. A fax from Makar dated January 5, 2005, was sent to the attention of
Belusko, Kriecher and Bucher. In the fax, Makar states the following, "I will
gather what medicals I have and bring them over to you to copy and send to
MRT. We are depending on you to gather the medicals and send them to
the MRT for their opinion so we have a place to start."
On January 14, 2005, Makar sent a fax to the attention of Belusko, Kriecher
and Bucher. The subject of the fax is Heather Kelly. Makar requests that
Bucher contact MRT by phone to inform MRT of Kelly's current treatment
plans so that MRT can have current information to render an opinion.
g.
32. Makar, in his position as paralegal for NPLS, does not have access to MRT without
paying a fee.
a. MRT would provide the service for NPLS at a cost of $100 to $125.
b. Makar contacted CCOA employees to update /send medical information of
his NPLS clients to MRT so that a favorable decision can be decided at the
appeals stage for his clients.
1. Administrative Law Judges in the past, have approved clients for
benefits based upon the opinions of MRT.
c. A favorable result for the client does not financially benefit NPLS or Makar.
33. Makar's contacts with his former governmental body (CCOA) were for the purpose
of having files or records transferred to MRT and not for the purpose of influencing
any decision by CCOA.
34. Makar did not engage in any negotiations, lobbying or submit contract proposals or
bids to CCOA.
35. Makar, in his official capacity as Income Maintenance Caseworker for CCOA, is
required to file a Statement of Financial Interests by May 1 containing disclosures
of financial information for prior calendar year.
36. Makar has not filed Statements of Financial Interests for calendar years 2000
through 2004 with the CCOA or DPW.
a. While Makar was working for CCOA, he was never provided a Statement of
Financial Interests to file.
b. No other IMC at CCOA has filed an SFI.
Makar, 05 -002
Page 9
37. Molly Shollenberger was in charge of distributing blank SFI forms to CCOA
employees.
a. Shollenberger would receive an e -mail from Patti J. Miesemer, Human
Relations Analyst, DPW, indicating that only the executive director of CCOA
had to file.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Robert W. Makar (Makar), has
been a public employee and former public employee subject to the provisions of the Public
Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401, et seq.,
as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65
Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act."
The allegations are that Makar, as an Income Maintenance Worker for the
Department of Public Welfare (DPW), Columbia County Office of Assistance (CCOA),
violated Sections 1103(a), 1103(g) and 1104(a) of the Ethics Act when he represented
clients before CCOA within one year of leaving employment; when he used confidential
information obtained from his public position for the benefit of clients he was representing
as a Paralegal for North Penn Legal Services (NPLS); and when he failed to file
Statements of Financial Interests (SFIs) for calendar years 2000 through 2004.
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.
Under Section 1103(g) of the Ethics Act, a former public official /public employee is
prohibited from representing a person for compensation on any matter before the
Makar, 05 -002
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governmental body with which he was associated for a period of one year after he leaves
that body. The terms "governmental body ", "person ", and "represent" are defined in the
Ethics Law as follows:
Section 2. Definitions
"Governmental body." Any department, authority,
commission, committee, council, board, bureau, division,
service, office, officer, administration, legislative body, or other
establishment in the Executive, Legislative or Judicial Branch
of a state, a nation or a political subdivision thereof or any
agency performing a governmental function.
"Person." A business, governmental body, individual,
corporation, union, association, firm, partnership, committee,
club or other organization or group of persons.
"Represent." To act on behalf of any other person in
any activity which includes, but is not limited to, the following:
personal appearances, negotiations, lobbying and submitting
bid or contract proposals which are signed by or contain the
name of a former public official or public employee.
65 Pa. C. S. § 1102.
Section 1104(a) of the Ethics Act requires that each public official /public employee
must file an SFI for the preceding calendar year, each year that he holds the position and
the year after he leaves it.
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.
Makar was employed as an Income Maintenance Caseworker (IMC) at CCOA,
DPW, from October 1980 to June 2004. As an IMC, Makar had the following job duties
and responsibilities: conduct eligibility interviews; make eligibility determinations; discuss
clients' cases as to eligibility and maintenance; and assist clients as to the Disability
Advocate Program (DAP).
In order to assist clients as to Social Security Disability Income (SSDI) eligibility,
Makar would submit medical information to a Medical Review Team (MRT) for expert
opinions, arrange for client transportation to disability hearings, represent clients at
hearings, assist clients as to appeals from denials of benefits, provide information to
clients regarding the appeal process, and submit appropriate documentation for medical
assistance.
Through such actions, Makar had the following interactions: local social security
offices, the Bureau of Disability Determination (BDD) within DPW and administrative law
judges as to appeals. Makar's interactions entailed scheduling client assessment
appointments, following the client's case in the BDD proceeding, and dealing with the
appeals process for clients who were denied benefits. During the various stages of the
process, Makar submitted clients' medical information to MRT, a privately operated
organization under contract with the Commonwealth to provide expert medical /vocational
opinions as to clients' disability claims.
Two days after Makar retired from the Commonwealth as a CCOA employee in June
of 2004, he learned that a position was available with NPLS, a non - profit organization that
Makar, 05 -002
Page 11
provides assistance to individuals who cannot afford such services to appeal claim
denials. Makar applied for the position at NPLS. Gary Wamser, who was familiar with
Makar while employed by CCOA, hired him to perform similar duties. An Access to
Justice Grant, but not DPW, is the funding source for Makar's position with NPLS.
In NPLS, Makar served as a paralegal to represent clients at hearings and appeals,
provide advice for welfare and self- sufficiency, provide back up advice and technical
assistance to social services and community groups, address systemic issues that affected
low income individuals, participate as part of a team for public benefit advocacy and
provide training and assistance to NPLS staff on DPW related issues.
NPLS is funded by the Legal Services Corporation, Pennsylvania Legal Services
and DPW. Makar's position with NPLS is part of a public benefits project that is designed
to make the Commonwealth welfare system more humanitarian in its treatment of clients so
that they are able to obtain the benefits to which they are entitled and to advance out of
poverty. At NPLS, Makar's clients appeal the denials of benefits. NPLS does not charge
its clients for such services.
After Makar, as an NPLS employee, determined a course of action for a client, he
made contacts with CCOA to request its caseworkers to secure recommendations from
MRT on behalf of his clients. From September 2004 to May of 2005, Makar contacted
employees of CCOA regarding 23 of his NPLS clients. Makar represented 16 clients, while
employed at CCOA, and then before CCOA during the period of one year after his
termination of service with CCOA. Clients who Makar previously represented while at
CCOA have contacted NPLS as a result of contact information provided to them by CCOA.
Makar has not solicited prior CCOA clients on behalf of NPLS. Some former CCOA clients
of Makar, through their own initiative, have contacted NPLS for representation and have
obtained the services of Makar.
Makar has also contacted CCOA employees through emails and faxes in order to
obtain medical information on prior clients he represented while at CCOA. See, Fact
Finding 29. Makar made contacts with his former governmental body on 7 occasions
within one year after termination of service. See, Fact Finding 30. The details of such
contacts are set forth in Fact Finding 31. The contacts that Makar made with his former
governmental body, CCOA, were for the purpose of having files or records transferred to
MRT. Such actions by Makar were not to influence any decision of CCOA. Further, Makar
did not engage in any negotiations, lobbying, submission of contract proposals or bids to
CCOA.
While a CCOA employee, Makar should have filed SF's for calendar years 2000
through 2004 but failed to do so. No other IMC at CCOA filed an SFI. The person in
charge of distributing blank SF's to CCOA employees followed an email from DPW that
only the executive director of CCOA should file SFIs.
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. That no violation of Section 1103(a) of the Public Official and
Employee Ethics Law, 65 Pa.C.S. §1103(a) occurred when Makar
used confidential information obtained from his public position as
an Income Maintenance Case Worker for the benefit of clients he
Makar, 05 -002
Page 12
was representing in his capacity as a Paralegal for North Penn
Legal Services as there was no use of the authority of office, by
Makar, or confidential information obtained while in his position of
public employment.
b. That no violation of Section 1103(g) of the Public Official and
Employee Ethics Law, 65 Pa.C.S. §1103(g) occurred in relation to
Makar's representation of clients before the Columbia County
Board of Assistance within one year of leaving employment as an
Income Maintenance Case Worker as the limited contacts by
Makar seeking to have his former governmental body transfer
records to another agency did not constitute representation as
defined by the Ethics Law.
c. That a violation of Section 1104(a) of the Public Official and
Employee Ethics Law, 65 Pa.C.S. §1104(a) occurred when Makar
failed to file Statements of Financial Interests with the Department
of Public Welfare and the Columbia County Board of Assistance
for calendar years 2000 through 2004.
4. Makar agrees to make payment in the amount of $250 in settlement of
this matter payable to the ommonwealth of Pennsylvania and forwarded
to the Pennsylvania State Ethics Commission within thirty (30) days of
the issuance of the final adjudication in this matter. Makar agrees to file
Statements of Financial Interests for calendar years 2000 through 2004
with the Columbia County Assistance Office with a copy to this
Commission within thirty (30) days of the issuance of the final
adjudication in this matter."
Consent Agreement, ¶3 and ¶4.
In applying the provisions of Section 1103(a) of the Ethics Act to the stipulated
findings, we do not find uses of authority of office for a private pecuniary benefit by Makar
while an employee of CCOA. Makar performed his duties and responsibilities on behalf of
his clients but did not use his position or confidential information as to his subsequent
employment. The record reflects that Makar became aware of the advertisement for the
NPLS position two days after he terminated employment with the Commonwealth. After
Makar left the Commonwealth, he was no longer a public employee and as a consequence
he was not able to use the authority of office because he had no office at that point in time.
See, Perpeer, Opinion 94 -008. The courts have held that without a use of authority of
office to obtain a private pecuniary benefit, there can be no violation of Section 1103(a) of
the Ethics Act. See, Marchitello & McGuire v. State Ethics Commission, 657 A.2d 1346
(Pa. Commw. 1995). Accordingly, Makar did not violate Section 1103(a) of the Ethics Act
as to the allegation that he used his position or confidential information for the benefit of
clients he was representing as a paralegal at NPLS in that there was no use of confidential
information or authority of office to obtain a private pecuniary benefit.
As to the Section 1103(g) allegation, the record before us reflects that when Makar
left Commonwealth employment, his former governmental body was DPW, including but
not limited to CCOA. The one year prohibition against representation of a person by
Makar before his former governmental body was from June 25, 2004 through June 25,
2005. Within that one year period, Makar, as an NPLS employee, made various contacts
with his former governmental body. See, Fact Findings 20, 21. Such contacts by Makar
entailed representation of NPLS clients. See, Fact Finding 22. Such activities by Makar
were done for actual compensation as an NPLS employee. See, Fact Finding 17. Based
upon the stipulated findings in the record before us, it appears that all of the requisite
elements for a transgression of Section 1103(g) of the Ethics Act occurred. However, the
Makar, 05 -002
Page 13
parties, as part of a comprehensive settlement of the case, propose in the Consent
Agreement a result of no violation of Section 1103(g) of the Ethics Act.
If this case were in a different procedural posture, our analysis would yield another
result as to the Section 1103(g) allegation. However, this case is in the posture of a
Consent Agreement and it is our view that overall, the resolution of the allegations as a
group plus the penalty payment is acceptable. In that we recognize that there is give and
take by both sides as part of the negotiation process, we will in essence treat the Section
1103(g) allegation as a "non- pros" by the Investigative Division where that allegation in
essence has been withdrawn. See, Gradizzi, Order 1379. Accordingly, as per the
Consent Agreement of the parties, Makar did not violate Section 1103(g) of the Ethics Act
regarding his representation of clients before the CCOA within one year of leaving
employment with the Commonwealth, based upon a non pros by the Investigative Division.
The last allegations concern the failure to file SF's for the calendar years 2000
through 2004. Since Makar was a Commonwealth employee required to file the SF's for
the calendar years 2000 through 2004 but failed to do so, we find that Makar violated
Section 1104(a) of the Ethics Act in each instance when he failed to file SF's for the
calendar years 2000 through 2004. As part of the Consent Agreement, Makar has agreed
to file the SF's for calendar years 2000 through 2004 as well as pay a penalty in the
amount of $250.
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, Makar is directed to make
payment in the amount of $250 in settlement of this matter to the Commonwealth of
Pennsylvania and forwarded to the Pennsylvania State Ethics Commission with thirty (30)
days of the issuance of the final adjudication in this matter. Makar agrees to file SF's for
calendar years 2000 through 2004 with CCOA with copies to this 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. Robert W. Makar (Makar), as an Income Maintenance Worker for the Department of
Public Welfare (DPW), Columbia County Office of Assistance (CCOA), for the
relevant time period was a public employee and then former public employee
subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998.
2. Makar did not violate Section 1103(a) of the Ethics Act in representing clients as a
paralegal at North Penn Legal Services (NPLS) in that he did not use his position or
confidential information for a private pecuniary benefit.
3. Makar did not violate Section 1103(g) of the Ethics Act when he represented clients
before the CCOA within one year of leaving employment with the Commonwealth
based upon a non pros by the Investigative Division.
4. Makar violated Section 1104(a) of the Ethics Act in each instance when he failed to
file Statements of Financial Interests for the calendar years 2000 through 2004.
In Re: Robert W. Makar
ORDER NO. 1383
File Docket: 05 -002
Date Decided: 12/12/05
Date Mailed: 12/23/05
1. Robert W. Makar (Makar), as an Income Maintenance Worker for the Department of
Public Welfare (DPW), Columbia County Office of Assistance (CCOA), did not
violate Section 1103(a) of the Ethics Act in representing clients as a paralegal at
North Penn Legal Services in that he did not use his position or confidential
information for a private pecuniary benefit.
2. Makar did not violate Section 1103(g) of the Ethics Act when he represented clients
before the CCOA within one year of leaving employment with the Commonwealth
based upon a non pros by the Investigative Division.
3. Makar violated Section 1104(a) of the Ethics Act in each instance when he failed to
file Statements of Financial Interests (SFIs) for the calendar years 2000 through
2004.
4. Per the Consent Agreement of the parties, Makar is directed to make payment in
the amount of $250 to the Commonwealth of Pennsylvania through this Commission
within thirty (30) days of the issuance of the final adjudication in this matter.
5. Makar is directed to file SFIs for calendar years 2000 through 2004 with the CCOA
with copies to this Commission within thirty (30) days of the issuance of the final
adjudication in this matter.
6. Compliance with paragraphs 4 and 5 will result in the closing of this case with no
further action by this Commission. Non - compliance will result in the institution of an
order enforcement action.
BY THE COMMISSION,
Louis W. Fryman, Chair