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Home My WebLink About1394 ScalesIn Re: Aaron Scales 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 -052 Order No. 1394 2/23/06 3/13/06 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. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Scales, 04 -052 Page 2 I. ALLEGATIONS: That Aaron Scales, a public official in his capacity as President of the Board of Trustees of the Thurgood Marshall Academy Charter School violated the following provisions of the State Ethics Act (Act 93 of 1998) when he used the authority of his office for the private pecuniary gain of himself and the South Avenue Association, a business with which he is associated by participating in actions of the Board of Trustees to award a contract to South Avenue Association; when he participated in Board actions to approve payments to South Avenue Association, including signing checks; when Aaron Scales obtained employment as a teacher with Thurgood Marshall Academy Charter School without following the established hiring process at Thurgood Marshall Academy Charter School at that time; when Aaron Scales failed to file Statements of Financial Interests in his position as a member of the Thurgood Marshall Academy Board of Trustees for calendar years 1998, 2000, 2001, and 2002; and when Aaron Scales intentionally backdated his Statement of Financial Interests in his position as a member of the Thurgood Marshall Academy Board of Trustees for calendar year 1999 to give the impression that the form was timely filed. § 1103. Restricted Activities (a) Conflict of interest. —No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). § 1104. Statement of financial interests required to be filed (a) Public official or public employee. —Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. § 1104(a). § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate Scales, 04 -052 Page 3 family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa. C. S. § 1102. II. FINDINGS: 1. The Investigative Division of the State Ethics Commission received information alleging that Aaron Scales violated provisions of the State Ethics Act (Act 93 of 1998). 2. Upon review of the information the Investigative Division initiated an own - motion preliminary inquiry on October 12, 2004. 3. The preliminary inquiry was completed within sixty days. 4. On December 10, 2004, a letter was forwarded to Aaron Scales, by the Investigative Division of the State Ethics Commission informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, no. 7004 2510 0003 5004 0641. b. The letter was returned by the United States Postal Service on January 18, 2005 stamped "unclaimed ". c. On February 12, 2005 the notice of investigation dated December 10, 2004 was personally served on Aaron Scales by a State Ethics Commission investigator at his residence, 504 Cranberry Point, Cranberry Township, PA. 5. On May 10, 2005, the Investigative Division of the State Ethics Commission filed an application for a ninety day extension of time to complete the Investigation. 6. The Commission issued an order on June 6, 2005, granting the ninety day extension. 7 On August 5, 2005, the Investigative Division of the State Ethics Commission filed an application for a ninety day extension of time to complete the Investigation. 8. The Commission issued an order on August 22, 2005, granting the ninety day extension. 9. On October 12, 2005, a letter was forwarded to Aaron Scales, by the Investigative Division of the State Ethics Commission informing him that the notice of investigation dated December 10, 2004 was being amended. a. Said letter was forwarded by certified mail, no. 7004 2510 0003 5004 0894. b. The letter was returned by the United States Postal Service on November 3, 2005 stamped "unclaimed ". c. On November 19, 2005 the amended notice of investigation was personally Scales, 04 -052 Page 4 10. Periodic notice letters were forwarded to Aaron Scales in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 11. The Investigative Complaint was mailed to the Respondent on November 30, 2005. 12. Aaron Scales served as a member of the Thurgood Marshall Academy Charter School (hereafter TMA) Board of Trustees from approximately September 21, 1998 through January 25, 2002. a. Scales served as the board vice - president from approximately August 1999 through January 2001. b. Scales served as the board president from approximately February 2001 through January 2002. 13. The development of TMA was a project undertaken by various concerned residents of the Wilkinsburg, Pennsylvania area beginning in or about early 1997. a. The purpose of developing TMA was to provide a viable option to traditional education offered through Wilkinsburg School District (hereafter WSD). b. Scales was not a member or part of the original group that developed the TMA concept. 14. The residents responsible for the organization of TMA initiated the establishment of a charter school in the Wilkinsburg area after the failure of the Turner Initiative. a. b. served on Aaron Scales by a State Ethics Commission investigator. The Turner Initiative was an attempt to operate an elementary school in Wilkinsburg School District through a privately owned enterprise. Scales was not involved with the development of the Turner Initiative. 15. James Simmons, Larry Randall, Virginia McDonald, Grace Young, and Robert Jacobs (among other individuals) formed the core group of individuals who actively pursued the development of a charter school application to be submitted to WSD once legislation regarding charter schools was ratified. a. The group of individuals received assistance with the charter project from Beacon Education Management. 1. Beacon Education Management is a corporation that offers educational management services to public charter schools. 16. The General Assembly of the Commonwealth of Pennsylvania approved Act 22 of 1997 on June 19, 1997, permitting the establishment and operation of charter schools. a. The act amended the act of March 10, 1949 (known as the Public School Code of 1949) by adding Article XVII -A, Charter Schools. b. Article XVII -A, Charter Schools, is known as Charter School Law. c. The procedure for the establishment of a charter school is defined in Section 1717 -A Scales, 04 -052 Page 5 17. Section 1717 -A, Establishment of Charter School, mandates (among other requirements) that an application to establish a charter school is to be submitted to the local school board where the charter will be located by November 15 of the school year preceding the school year in which the charter school will be established. a. Within 45 days of receipt of the application the local school board of directors in which the proposed charter is to be located must hold at least one public hearing on the provisions of the application. b. At least 45 days must pass between the first public hearing and a final decision of the board on the charter application. c. The board must grant or deny the application within 75 days of the first public hearing and the action must occur at a public meeting of the board. 1. If denied, written notice of the denial must be sent to the applicant, the Department of Education, and the Charter School Appeal Board detailing the reasons for denial. 18. The application for the establishment of TMA was submitted to Wilkinsburg School District on or about September 17, 1997. a. The Wilkinsburg School District Board of Directors granted the application at the November 24, 1997 regular board meeting. b. Signing the charter on behalf of the WSD board of directors were Priscilla Jones, Board President at that time, and Barbara Allen, Board Secretary at that time. c. Signing the charter on behalf of TMA was James Simmons, Board President at that time, and Marcia Randall, Board Secretary at that time. 19. The charter granted to operate TMA was to commence in the 1998 -1999 school year and continue for three additional school years thereafter. a. The charter was eligible for renewal of additional periods of five years duration. 1. Any renewal required a new charter to be executed by the parties. 20. The initial TMA board of directors was composed of the founding members of the charter. a. Founding board members were to review prospective replacements or new board members in accordance with the TMA's by -laws. 21. Bylaws associated with TMA were submitted as Appendix F to the charter school application. a. The by -laws were adopted on September 3, 1997. b. Article IV of the by -laws addressed TMA's Board of Directors. 22. Article IV, Board of Directors, set forth, among other information, the following sections regarding TMA board members: Scales, 04 -052 Page 6 a. Section 2, Number and Election, mandated that the board consist of three to fifteen directors to serve three -year terms. 1. Each director could serve a maximum of two successive three -year terms. 2. Three -year terms terminated at the third annual meeting following the election. b. Section 11, Resignation and Removal of Directors, mandated that any director could be removed at any time with or without cause at any meeting of the board by a vote of the board called for that purpose. c. Section 14, Compensation and Expenses, mandated that directors serve without compensation but may be reimbursed for expenses incurred when acting at the request of and on behalf of the board. 23. The TMA board of directors was responsible for all aspects of the development of the charter school including the hiring of personnel to develop the curriculum, the locating and securing of suitable property, the hiring of teachers and administrative staff, etc. a. The individuals responsible for the establishment of TMA began officially meeting as the TMA board of directors on December 6, 1997. 1. Minutes of Board meetings exist as early as September 8, 1997; however, the charter was not officially granted until November 24, 1997. 24. Funding for TMA was supplied through a variety of sources including, at a minimum, the Pennsylvania Department of Education, Wilkinsburg School District, Heinz Endowments, the Community Loan Fund of Southwestern Pennsylvania, PNC Bank, Mellon Bank, and the Local Initiatives Support Corporation (LISC). a. Start -up funding provided by the Pennsylvania Department of Education, Heinz Endowments, PNC Bank, Mellon Bank, and LISC enabled TMA to move forward with the planning and development of the school. 1. Heinz Endowments issued grants to the Community Loan Fund of Southwestern Pennsylvania in support of the development of various charter schools. aa. The Community Loan Fund of Southwestern Pennsylvania was responsible for determining which entities received support, the amount of funding received, and the distribution of funding. 2. Funding supplied by PNC Bank, Mellon Bank, and LISC was issued in the form of loans in the name of South Avenue Association which required payment to those specific lenders. b. Continued funding for the operation of TMA was primarily provided by Wilkinsburg School District per Section 1725 -A of Charter School Law. 25. TMA contracted with Joseph Newkirk, III, to assist in the planning and development of TMA. a. Newkirk signed a contract with TMA for the position of Headmaster /Chief Scales, 04 -052 Page 7 Administrative Officer effective July 1, 1998 through June 30, 2001. 1 Newkirk's contract with TMA was eventually terminated by the board of directors effective June 30, 1999. b. Newkirk's responsibilities included hiring staff, locating a building for the school, marketing the school, developing the curriculum, etc. 26. The TMA charter application initially called for an opening date of September 1998 for the 1998 -1999 school year. a. Concern existed among the TMA board of directors that the school would not have the necessary elements in place to open in September 1998. b. As a result of the concern, the TMA board of directors passed a motion at the meeting of May 29, 1998 to delay the opening of the school until September 1999. 27. The board of directors subsequently presented a request to the Wilkinsburg School Board to approve the delay of TMA's opening date. a. A resolution was passed approving the delayed start -up date of TMA at the July 28, 1998 regular meeting of the WSD board of directors. b. The amended dates of operation for TMA spanned from September 1999 through June 2002. 28. Scales was employed as a teacher with Wilkinsburg Area School District at the time that the TMA charter was granted and development of the school was proceeding. a. From September 5, 1997 through September 10, 1997 Scales was employed as a daily substitute teacher with the district. b. From September 11, 1997 through June 12, 1998, Scales was employed in the capacity of a long -term substitute teacher with the district. c. From July 1, 1998 through February 28, 2000, Scales was employed as a full -time teacher as the Coordinator of the Center for Excellence with the district. 29. Scales was elected to a board member position with TMA by the TMA board at the September 21, 1998, regular meeting. a. The motion to accept Scales' application passed unanimously. 30. Both prior to and after Scales began serving as a TMA board member; searches were conducted for property in the Wilkinsburg area that would suit the needs of the school. a. The primary responsibility to locate suitable property rested with Newkirk. 1. Newkirk worked with National Development Corporation (NDC) and Desmone and Associates regarding property renovations, floor plans, space allocation, and schematic designs. b. Various board members also conducted informal property searches. Scales, 04 -052 Page 8 1. Scales did not actively participate in property searches for the school. 31. At the August 3, 1998, regular meeting, Newkirk proposed the pursuit of the old Westinghouse site at Garrison Place and Penn Avenue and /or existing property at 800 Wood Street to the board as possible sites for TMA. a. The board agreed to pursue the property at 800 Wood Street at the August 3, 1998 meeting. 32. Property was located at 747 South Avenue, Wilkinsburg, Pa as a possible school site while negotiations for the property at 800 Wood Street were ongoing. a. The multi -story building and property included private parking, a student play area, a day care center, heating and air conditioning system in place and operating, and a park and tennis court directly across the street. b. The property was privately owned by Michael Tobias at that time. 33. Newkirk contacted Tobias and initially inquired into the possibility of renting the property for TMA. a. As discussions between Newkirk and Tobias progressed, Newkirk inquired if Tobias was interested in selling the property. b. Tobias and Newkirk agreed upon a selling price of $250,000.00 for the building and property. 34. The Community Loan Fund organized the necessary lenders to support the purchase and renovation of the property at 747 South Avenue. a. Mark Peterson was the contact individual for the organization of funding. 1. Peterson is the Executive Director of the Community Loan Fund. 35. Various individuals represented TMA at financing meetings with the lenders, including Newkirk, Richard Dieter, and Priscilla Jones. a. Dieter served as a consultant to the TMA board /school. 1. Dieter is self - employed as the owner /operator of Dieter Associates Management and Marketing Services and as the owner /operator of the Horizon Institute. 2. Dieter's clients at that time included various community development groups, among others, that were supportive of charter schools and alternative education. b. Jones was the president of the TMA board at that time. 36. The original intent of TMA was to purchase suitable property in which the school could be housed; however, the decision ultimately was made to rent property instead of owning. a. The board and various lenders (financial institutions) desired ownership by an outside company to ensure the property would not revert back to WSD should TMA fail or its charter not be renewed. Scales, 04 -052 Page 9 1 Per Section 1729 -1 of Charter School Law, if a charter is revoked or not renewed, the charter school is dissolved and after the disposition of any liabilities and obligations of the charter school, remaining assets are distributed on a proportional basis to the school entities with students enrolled for the last full or partial year of the charter school. b. It was suggested by Peterson that an outside, non - profit company be created to act as the ownership agent for the property at 747 South Avenue. 1. Dieter was responsible for the organization of the non - profit company. 2. The non - profit company subsequently established was known as South Avenue Association. 37. Dieter contacted Scales and Brian Magan to serve as corporate officers for South Avenue Association. a. Dieter approached Scales because Scales was well known in the Wilkinsburg community. 1. Dieter approached Scales in 1999 after Scales was appointed as a member of the TMA board. b. Dieter approached Magan to serve as a corporate officer due to an existing relationship between Dieter and Magan. c. No additional individuals were involved with South Avenue Association at that time. 38. At the March 1, 1999 regular board meeting, Newkirk advised the board that TMA was under agreement with Tobias for the property and building at 747 South Avenue. a. Newkirk referenced in the update that the building would be purchased by a group of individuals for TMA. 1. No specific individuals were identified at the meeting. 2. The group of individuals referenced by Newkirk was Scales, Dieter, and Magan c/o South Avenue Association. 39. At the April 5, 1999 regular board meeting, Newkirk provided the board with an update regarding the acquisition of the property. a. Newkirk indicated that the necessary loans for the purchase of the building had been tentatively approved. 40. At the May 3, 1999 regular board meeting, Jones presented a resolution to the board regarding the real estate lease for the property at 747 South Avenue. a. The resolution regarding the real estate lease was approved via 4 -0 vote with Scales voting in favor of the motion. b. At the time of his vote, Scales was a corporate officer for SAA, the leasing company for 747 South Avenue. Scales, 04 -052 Page 10 41. South Avenue Association was incorporated with the Pennsylvania Department of State Corporation Bureau on May 21, 1999 as a Pennsylvania non - stock, non - profit corporation under entity number 2878741. a. The filing date of the Articles of Incorporation is documented as May 21, 1999. b. The purpose of the corporation is noted as, "Rehabilitate a building to be used as a public school." c. The Articles of Incorporation were filed on behalf of South Avenue Association by Ann Martin Criss of the law firm of Buchanan Ingersoll. 42. Pennsylvania Department of State Corporation Bureau records document Scales as the President of South Avenue Association. a. Magan is documented as the Secretary /Treasurer. b. Dieter served as the Vice - President of South Avenue Association although not listed on Corporation Bureau records. c. Corporate officers were last updated on May 21, 1999. 43. The corporate address for South Avenue Association is 289 West Prospect Avenue, Pittsburgh, Pa 15205. a. South Avenue Association's corporate address is Dieter's home address. 44. The role of South Avenue Association was to act as the purchasing agent for the property at 747 South Avenue and subsequently serve as the managing agent for the property. a. As the managing agent, South Avenue Association was responsible for the ownership and operation of the property. 1. Ownership and operation included the completion of any and all needed renovations, improvements, repairs, and general maintenance of the property utilized by TMA. 45. South Avenue Association had no separate office address or employees throughout its existence. a. Business correspondence was mailed to either Dieter's home address or to 747 South Avenue upon the opening of the school. 1. Dieter maintained a small room at 747 South Avenue from which to complete South Avenue Associates business. 46. Dieter served as the operations agent for South Avenue Association through his self - employment as Dieter Associates Management and Marketing Services. a. Specifics regarding Dieter's management of South Avenue Association, including fees to be paid to Dieter, were presented to the South Avenue Association board via correspondence for approval. Scales, 04 -052 Page 11 b. Scales, Dieter, and Magan agreed to the terms outlined in Dieter's letter at a South Avenue Association board of directors meeting. 1. Dieter's letter to the South Avenue Association board could not be located. 2. Minutes of South Avenue Associations annual meetings could not be located. 3. All South Avenue Association corporate documents and records related to the property at 747 South Avenue were allegedly stolen from Dieter's room at 747 South Avenue after the closing of TMA. c. Scales and Magan had no responsibilities in the management of South Avenue Associates. 1. Scales and Magan received no compensation from South Avenue Association for service as corporate officers. 47. The indenture detailing the sale of property at 747 South Avenue by Tobias to South Avenue Association is dated July 1, 1999. a. The actual filing date of the deed in the Allegheny County Recorder of Deeds office is noted as July 7, 1999. 48. Scales signed the indenture on behalf of South Avenue Association as the corporate president. a. Scales signed the indenture as a South Avenue Association representative at the time he was serving as a TMA board member. 49. July 2, 1999 loan documents from PNC Bank National Association regarding the purchase of 747 South Avenue by South Avenue Association include the mortgage note, security agreement, open -ended mortgage and security agreement, construction loan agreement, assignment of construction and development documents, etc. a. All applicable loan documents were signed by Dieter and Magan as South Avenue Association representatives. b. Scales did not sign as a South Avenue representative on any PNC loan documents. 50. The signing of the lease agreement between South Avenue Association and TMA occurred on July 2, 1999, after the close of the PNC Bank National Association loan. a. Jones, TMA board president, signed the lease on behalf of TMA as the tenant. 1. Scales signed as a witness to Jones' signature for TMA. 2. Scales signed the lease as a TMA representative at the time that he was the president of South Avenue Association. 3. Scales was serving on TMA board at the time he signed the lease. Scales, 04 -052 Page 12 b. Magan, South Avenue Association secretary, signed the lease on behalf of South Avenue Association as the landlord. 1. Dieter signed as a witness to Magan's signature for South Avenue Association. 51. South Avenue Association opened a business checking account at PNC Bank (Account No. 11) on June 14, 1999 prior to the loan closing of July 2, 1999. a. Scales, Dieter, and Magan all maintained signature authority over Account No. 11. 1. Signature cards designate Scales as the corporate president, Dieter as the corporate vice - president, and Magan as the corporate secretary /treasurer. b. Checks written on Account No. 11 required the signature of only one authorized signatory. 52. The initial deposit to South Avenue Association's checking account on June 14, 1999 originated from TMA in the amount of $54,000.00 for leasehold improvements and start -up funds. a. The check was issued on June 4, 1999 by TMA and prior to any lease being signed. b. Subsequent deposits into the account originated from a variety of sources including PNC Bank (advances), the Local Initiatives Support Corporation (LISC), the Community Loan Fund, and TMA. 53. South Avenue Association also received funding for the purchase of 747 South Avenue from LISC. a. July 8, 1999 loan documents from LISC regarding the purchase of 747 South Avenue by South Avenue Association include the loan agreement, the open - end mortgage and security agreement, and promissory note. b. Scales signed the loan agreement, the open -end mortgage and security agreement, and promissory note as the president of South Avenue Association. 1. Dieter and Magan signed the documents as the vice - president and secretary for South Avenue Association respectively. c. Scales signed the documents as a South Avenue Association representative at the time that he was serving as a TMA board member. 54. Loans issued to South Avenue Association through LISC were deposited in South Avenue Association's name at PNC Bank under Account No. 10. a. Account No. 10 was opened on or about July 14, 1999. b. No signature cards were available for the account. 1. Statements for the account show various mailing addresses, including Scales' home address (at that time) of 423 Ross Avenue, Dieter's home address, and TMA's business address. Scales, 04 -052 Page 13 c. Funds were transferred to South Avenue Association's checking account at PNC Bank (Account No. 11) as needed. 55. Dieter was the primary individual responsible for the deposit of funds coming into South Avenue Association and for the distribution of checks from South Avenue Association. a. Dieter maintained primary custody over South Avenue Association accounts. 56. At the July 12, 1999, regular meeting of the TMA board, Jones reported that the school would be located at 747 South Avenue and that construction had begun. a. b. c. Initial plans called for the complete renovation of the first two floors of the building on the property. The projected opening date of the school was September 13, 1999. The school subsequently expanded the renovations to include the third floor. 1. Renovations to the third floor were primarily completed by the end of December 1999. 57. The number of monthly meetings held by the TMA board fluctuated throughout the existence of the school. a. The number of meetings held varied from once per month to every two weeks. b. When two meetings were held per month, only one was a legislative meeting. 1. The remaining meeting held was a workshop meeting. 58. Minutes of the monthly meetings were approved for accuracy at each subsequent legislative meeting. a. Any abstentions that occurred at the meetings were specifically documented in the minutes. 59. Voting at TMA board meetings was completed via group aye /nay vote or individual roll call vote when voting actually occurred. a. Votes regarding issues discussed by the TMA board did not consistently occur. b. The method of voting utilized, when conducted, depended on the importance of the issue at hand. 1. Votes to approve the previous month's minutes, meeting adjournment, etc. were conducted via group aye /nay vote. 2. Votes accepting new board members, occasional hiring of employees, etc. were voted on in roll call fashion. 60. TMA meeting minutes did not include a listing of monthly bills approved for payment at the regular monthly meetings. Scales, 04 -052 Page 14 a. Monthly bills were normally presented to the board members in the form of financial statements which were included in meeting packets distributed. 1. Financial statements provided listed vendor names, the amount due, the outstanding balance, if any, and the total bills to be paid for the month. 61. Minutes of TMA monthly meetings consistently fail to document an official motion and subsequent vote to approve the paying of monthly bills. a. Minutes of prior TMA meetings were reviewed and voted on for accuracy at subsequent TMA meetings. b. Votes to approve monthly bills routinely occurred. 62. Bills to be paid were representative of all bills received by TMA during the applicable month and any outstanding balances from the proceeding month or months. a. Bills were normally paid after TMA received its monthly financial allotment from WSD. b. Custody of TMA account information (checks, statements, etc) was maintained in the office of the TMA business manager. 63. TMA maintained accounts at PNC Bank, Mellon Bank, and Dollar Bank during its existence as shown below: a. PNC Bank: Account Account Name Open Date Close Date Number 1 TMA Activities Fund 12/02/99 06/28/02* 2 TMA After School Program 11/07/01 03/29/02* Fund 3 TMA Parent Association 11/24/00 06/28/02* 4 TMA 07/26/99 03/29/02* * Represents last statement provided by PNC Bank b. Mellon Bank: Account Number Account Name Open Date Close Date 5 TMA Charter School 12/19/97 06/20/02* * Represents last statement provided by Citizen's Bank (previously Mellon Bank). c. Dollar Bank: Account Account Name Open Date Close Date Number 6 TMA 10/17/01 11/20/01 64. As a TMA board member Scales maintained signature authority over the above listed accounts as shown below: a. PNC Bank: Account Dates Scales Held Signature # of Signatures Scales, 04 -052 Page 15 Number Authority Required 1 12/02/99 through 06/28/02 2 2 No Signature Authority N/A 3 12/14/01 through 06/28/02 2 4 07/26/99 through 03/29/02 2 b. Mellon Bank: Account Dates Scales Held Signature # of Signatures Number Authority Required 5 05/21/01 through 06/20/02 2 c. Dollar Bank: Account Dates Scales Held Signature # of Signatures Number Authority Required 6 10/17/01 through 11/20/01 2 d. Facsimile stamps were not utilized as a method of authorizing checks from any of TMA's accounts. 65. Scales spoke and acted as a South Avenue Association representative when issues involving South Avenue Association were discussed at TMA board meetings. a. Scales often made statements such as "Rich and I" or "we" when referencing South Avenue Association in board discussions. 1. Scales' association with South Avenue Association was common knowledge among the majority of TMA board members. 66. Monthly rent due to South Avenue Association from TMA as established per the lease agreement totaled $15,958.00. a. Fixed rent was defined in the lease as rent due in the amount of $15,416.00 monthly. b. The lease required that TMA pay South Avenue Association an additional $542.00 monthly as its estimated share of all taxes. c. The effective term of the lease was established as July 1, 1999 through June 30, 2002. 67. Although the lease officially required $15,958.00 to be paid monthly, TMA's monthly rent payments to South Avenue Association initially totaled $15,000.00. a. No reason for the discrepancy in the rent amounts could be determined. 68. In or about July 2000, Scales proposed to the board an increase in TMA's payment of rent from $15,000.00 per month to approximately $27,500.00 per month. a. Scales provided varying explanations for the increase in rent payments during discussions held by the TMA board. 1. Scales advised that increased payments towards the existing loans would pay the loans off quicker and result in savings to TMA in the long term. Scales, 04 -052 Page 16 2. Scales advised that additional expenses in the operation of the building were occurring which were not originally anticipated. 3. Scales advised that additional funds were needed for the renovation of the third floor of the building for TMA. b. Although discussed by the board at a regular board meeting, no official vote to approve the increased rent payments could be located in existing meeting minutes. c. Scales' actions resulted in increased payments of $12,500 per month to SAA between July 2000 through May 2001. 69. In approximately February 2001, the TMA board removed Jones from her position as board president and subsequently removed Jones from service as a TMA board member. a. Scales was serving as the board vice - president at that time. b. Scales assumed the position of president immediately upon Jones' removal. 70. After taking the office of TMA board president in or about February 2001, Scales submitted a letter of resignation to Dieter regarding his position as president of South Avenue Association. a. Scales' letter of resignation could not be located. b. Minutes of the South Avenue Association meeting where the resignation was accepted could not be located. c. All South Avenue Association corporate documents and records related to the property at 747 South Avenue were allegedly stolen from Dieter's room at 747 South Avenue after the closing of TMA. 71. After Scales resigned as the president of South Avenue Association, he remained on the South Avenue Association board of directors. a. Robert Pitts replaced Scales as the SAA board president. 72. Scales was never removed as the president of South Avenue Association from Department of State Corporation Bureau records. a. Scales continued to maintain signature authority over South Avenue Association's accounts although no longer serving as the company president. 73. Once Scales assumed the duties of TMA board president in or about February 2001, Scales was consistently vocal that South Avenue Association receive its rent payment each month. a. Scales was adamant that South Avenue receive its payment monthly. b. Scales allowed other TMA monthly bills to go unpaid to insure that payment was issued to South Avenue Association. 74. Checks issued to South Avenue Association eventually decreased in amount as a result of TMA's decaying financial status. Check Date Check Number Check Amount Signatories Memo Institution Account Number 06 -04 -99 10/2 $54,000.00 Jones Randall Illegible, Start -up Funds Mellon Bank 134 -5/48 08 -27 -99 15,000.00 Jones Randall August Kent 747 South Ave. PNC Bank 10081684/8 08 -27 -99 ** 15,000.00 Jones Randall July Kent 747 South Ave. PNC Bank 10081684/8 08-27-99 ** /,500.00 Jones Randall Sec. Deposit, Illegible PNC Bank 10081684/8 09 -10 -99 *` 22,500.00 Jones Randall Sept. Kent (/4/ S.A.) Second 1/2 Security D. PNC Bank 10081684/8 10 -06 -99 1028 15,000.00 Jones Randall October Kent 747 South Ave. PNC Bank 10081684/8 11-02-99 1062 15,000.00 Jones ndall Ra November Kent 747 South Ave. PNC Bank 10081684/8 11 -12 -99 10/9 15,000.00 Jones Randall December Kent PNC Bank 10081684/8 01 -13 -00 1183 15,000.00 Jones ndall Ra January Kent PNC Bank 10081684/8 02 -04 -00 1232 15,000.00 Jones ndall Ra I- ebruary Kent PNC Bank 10081684/8 03 -10 -00 1339 15,000.00 Jones ndall Ra March Kent PNC Bank 10081684/8 03 -31 -00 1381 /,500.00 Jones ndall Ra 'h Apnl Kent PNC Bank 10081684/8 04-1 /-00 1390 /,500.00 Jones ndall Ra 2 ApnI Kent PNC Bank 10081684/8 05 -12 -00 10029 15,000.00 Jones ndall Ra May Kent PNC Bank 10081684/8 06 -09 -00 1421 15,000.00 Jones Randall June Kent PNC Bank 10081684/8 0/ -13 -00 10089 27,500.00 Jones Randall July Kent PNC Bank 10081684/8 0/ -28 -00 10190 27,500.00 Jones Randall September Kent PNC Bank Illegible 08 -11 -00 1443 27,500.00 Jones Randall Ille able, Kent 747 South Ave. PNC Bank 10081684/8 10 -12 -00 10265 27,500.00 Jones ndall Ra October Kent PNC Bank 10081684/8 11 -15 -00 10327 27,500.00 Jones ndall Ra November Kent PNC Bank 10081684/8 01-12-01 148/ 27,500.00 Jones Randall January Kent PNC Bank 10081684/8 02 -23 -01 1120 23,375.00 Jones Randall February Kent Mellon Bank 134-5/48 03 -15 -01 10440 27,500.00 Scales Robinson December Kent PNC Bank 10081684/8 04 -11 -01 1049/ 27,500.00 Scales Robinson April 2001 PNC Bank 10081684/8 05 -14 -01 10523 27,500.00 Scales Randall Kent Expense PNC Bank 10081684/8 06 -13 -01 105/1 20,500.00 Scales Randall April 2001 PNC Bank 10081684/8 06 -15 -01 10590 3,000.00 Scales To Make Up June 2001 Payment PNC Bank 10081684/8 0/ -09 -01 10596 23,500.00 Scales Randall July 2001 PNC Bank 10081684/8 08 -1 / -01 10641 19,/00.00 Scales Kent PNC Bank 10081684/8 Scales, 04 -052 Page 17 a. Scales was the individual who determined the monthly amount to be paid to South Avenue Association when monthly payments of $27,500.00 could no longer be maintained. b. Scales instructed the business manager of the amount to be written on the check to South Avenue Association. 75. From June 4, 1999 through June 4, 2002, TMA issued a minimum of thirty -eight checks representative of start -up funds and monthly rent payments to South Avenue Association totaling $699,375.00 for property located at 747 South Avenue as shown below: Check Date Check Number Check Amount Signatories Memo Institution Account Number 10081684/8 09 -14 -01 10651 19,100.00 Scales Kent PNC Bank 10 -01 -01 10698 19,100.00 Scales Robinson Kent Expense PNC Bank 10081684/8 11 -05 -01 10/39 1 /,300.00 Robinson A- Quintanilla Kent For November PNC Bank 10081684/8 12 -13 -01 10/52 18,100.00 Scales Robinson N/A PNC Bank 10081684/8 01 -15 -02 10/62 11,000.00 Scales Stewart Rent For January 2002 PNC Bank 10081684/8 02 -11 -02 1220 9,000.00 Scales Rankin January Rent Mellon Bank 134 -5/48 02 -11 -02 1222 9,000.00 SOcales Rankin Halt Ot I- ebruary 2002 Rent Mellon Bank 134 -5/48 04 -01 -02 1234 5,000.00 Scales Rankin Rent Mellon Bank 134 -5/48 06 -04 -02 1241 4,000.00 Scales Rankin Back Rent Mellon Bank 134 -5/48 Total $699,375.00 Check Date Check Number Check Amount Deposit Date 06 -04 -99 1072 $54,000.00 06 -14 -99 08 -27 -99 ** 15,000.00 08 -27 -99 08 -27 -99 ** 15,000.00 08 -27 -99 08 -27 -99 ** 7,500.00 08 -27 -99 09 -10 -99 ** 22,500.00 09 -10 -99 10 -06 -99 1028 15,000.00 10 -08 -99 Scales, 04 -052 Page 18 * *= starter checks a. Scales routinely participated in the approval of monthly bills which included rent payment to South Avenue Association. 1. Payment due to South Avenue Association was documented on the monthly financial statements provided to the board. b. Scales signed as an authorized signatory for TMA on fifteen of the thirty - eight checks issued. c. Scales did not publicly disclose his association with South Avenue Association prior to voting to approve monthly bills which included rent payment to South Avenue Association. 76. There is no record of abstention by Scales on any issues involving South Avenue Association including the approval of monthly bills documenting rent payment to South Avenue Association with the exception of the August 30, 1999 TMA board meeting. a. Minutes of the August 30, 1999 meeting specifically document a motion to pay South Avenue Association rent for July and August in the amount of $15,000.00 each month and $7,500.00 security deposit each month. b. The motion is noted as carrying 4 -0 -1 with Scales abstaining. c. Minutes note no explanation for the abstention. 77. All thirty -eight checks issued to South Avenue Association were deposited into South Avenue Association's account at PNC Bank (Account No. 10- 0816 -8216) as shown below: Check Date Check Number Check Amount Deposit Date 11 -02 -99 1062 15,000.00 11 -04 -99 11 -12 -99 1079 15,000.00 11 -12 -99 01 -13 -00 1183 15,000.00 01 -13 -00 02 -04 -00 1232 15,000.00 02 -04 -00 03 -10 -00 1339 15,000.00 03 -10 -00 03 -31 -00 1381 7,500.00 03 -31 -00 04 -17 -00 1390 7,500.00 04 -18 -00 05 -12 -00 10029 15,000.00 05 -12 -00 06 -09 -00 1421 15,000.00 06 -09 -00 07 -13 -00 10089 27,500.00 07 -13 -00 07 -28 -00 10190 27,500.00 09 -13 -00 08 -11 -00 1443 27,500.00 08 -22 -00 10 -12 -00 10265 27,500.00 10 -12 -00 11 -15 -00 10327 27,500.00 11 -15 -00 01 -12 -01 1487 27,500.00 01 -12 -01 02 -23 -01 1120 23,375.00 02 -26 -01 03 -15 -01 10440 27,500.00 03 -16 -01 04 -11 -01 10497 27,500.00 04 -12 -01 05 -14 -01 10523 27,500.00 05 -15 -01 06 -13 -01 10571 20,500.00 06 -15 -01 06 -15 -01 10590 3,000.00 06 -20 -01 07 -09 -01 10596 23,500.00 07 -11 -01 08 -17 -01 10641 19,700.00 08 -17 -01 09 -14 -01 10651 19,700.00 09 -18 -01 10 -01 -01 10698 19, 700.00 10 -16 -01 11 -05 -01 10739 17,300.00 11 -14 -01 12 -13 -01 10752 18,100.00 12 -14 -01 01 -15 -02 10762 11,000.00 01 -15 -02 02 -11 -02 1220 9,000.00 02 -12 -02 02 -11 -02 1222 9,000.00 02 -12 -02 04 -01 -02 1234 5,000.00 04 -04 -02 06 -04 -02 1241 4,000.00 06 -07 -02 Total $699,375.00 Check Date Chec k Num ber Check Amount Signatories Memo Institution Originating Account Number 1008168478 01 -20 -00 1215 67,500.00 Jones Randall Rent PNC Bank 02 -15 -00 1251 17,450.00 Jones Randall Janitorial Services PNC Bank 1008168478 Scales, 04 -052 Page 19 ** = Starter Checks a. Scales personally endorsed and deposited check number 10497 in the amount of $27,500.00 into South Avenue Association's account. b. Scales maintained signature authority over Account No. 1008168216 at all times that the account was active. 78. TMA issued South Avenue Association seven separate, individual checks for janitorial services, cleaning services, and leasehold improvements although such services were to be included in the rental payments per terms of the contract. a. No board action was taken to approve the extra payments. 79. From January 20, 2000 through February 11, 2002, TMA issued approximately seven checks in payment of additional rent, janitorial services, cleaning services, leasehold improvements, and other unknown services to South Avenue Association totaling $121,850.00 related to property located at 747 South Avenue as shown below: Check Date Chec Num ber Check Signatories Memo Institution Originating Accou Number 1008168478 06 -09 -00 1422 12,900.00 Jones Randall Cleaning Service PNC Bank 06 -28 -00 1106 12,000.00 Jones Randall Leasehold Improvements Mellon Bank 134 -5748 07 -21 -00 1107 5,000.00 Jones Randall Unknown Mellon Bank 134 -5748 08 -11 -00 1444 5,000.00 Jones Randall Illegible, Leasehold Impr. PN B ank 1008168478 02 -11 -02 1224 2,000.00 Scales Rankin Cleaning / Consultant Fee Mellon Bank 134 -5748 Total -21 $121,850.00 08 -11 -00 1444 Check Date Check Number Check Amount Deposit Date 01 -20 -00 1215 67,500.00 01 -21 -00 02 -15 -00 1251 17,450.00 02 -17 -00 06 -09 -00 1422 12,900.00 06 -09 -00 06 -28 -00 1106 12,000.00 06 -29 -00 07 -21 -00 1107 5,000.00 07 -21 -00 08 -11 -00 1444 5,000.00 08 -22 -00 02 -11 -02 1224 2,000.00 02 -12 -02 Total 121,850.00 Scales, 04 -052 Page 20 a. Sca es routinely participated in the approval of monthly bills which included add tional payment to South Avenue Association. 1. Payment due to South Avenue Association was documented on the monthly financial statements provided to the board. b. Scales signed as an authorized signatory for TMA on check number 1224 in the amount of $2,000.00 to South Avenue Association. c. Scales did not publicly disclose his association with South Avenue Association prior to voting to approve monthly bills which included additional payment to South Avenue Association. 80. There is no record of abstention by Scales on any issues involving South Avenue Association including the approval of monthly bills documenting additional payment to South Avenue Association with the exception of the August 30, 1999 TMA board meeting (See Findings No. 76). 81. All seven checks issued to South Avenue Association were deposited into South Avenue Association's account at PNC Bank (Account No. 10) as shown below: a. Scales maintained signature authority over Account No. 1008168216 at all times while the account was active. 82. From June 1999 through June 2002, South Avenue Association received a total of forty -five checks from TMA totaling $821,225.00 in relation to rent payments, leasehold improvements, and other various services. a. Of the $821,225.00 paid by TMA, $274,696.16 was paid out to Dieter or entities he controls. 83. Dieter received a minimum of one hundred seven checks from South Avenue Association written to Dieter Associates Management and Marketing Services, The Check Date Check Check Account Check Description Deposit Number Amount Origin Date 10/25/99 1045 250.00 11 Sprint Phone Deposit Unknown 11/15/99 7849 400.00 7 None 11/22/99 07/28/00 8256 600.00 7 SAA Expenses 07/28/00 08/15/00 8291 800.00 7 Services Unknown 10/05/00 1127 1,500.00 11 Building Work (3 days @ $500) Unknown 10/11/00 8375 50.00 7 Computer Services Unknown 10/30/00 1142 1,000.00 11 2 days @ $500 /day Unknown 02/10/01 8503 500.00 7 2 days @ $250 /Comp Trng for TMA Unknown 05/20/01 8541 1,000.00 7 2 days @ $500 /Comp Consulting 05/21/01 08/24/01 8618 500.00 7 Computer Consulting 08/27/01 11/16/01 1019 407.26 8 Book Scholarship Unknown Scales, 04 -052 Page 21 Horizon Institute, or Dieter personally totaling $274,696.16 for services performed. a. Dieter received payment directly from South Avenue Association's account at PNC Bank (Account No. 10- 0816 -8216) for services performed regarding building ownership /operation. 84. In a sworn statement provided to Commission Investigators on November 2, 2005, Dieter alleged that payments he received from SAA were allocated for his fees regarding the management of the building /property and for cash payments issued to various contractors for moonlighting work performed. a. Dieter alleged that sixty percent of the funds issued to him personally were utilized to pay contractors for various moonlighting services performed. 1. No records were available to corroborate Dieter's estimates. b. Funds paid to Dieter were not directly allocated for expenses associated with building /property management (i.e. debt service, utilities, upkeep, security, etc.). 85. South Avenue Association's /Dieter's financial gain was at least $109,878.46 based on Dieter's estimates that 60% of payments made were for management services. Total Funds Received Percentage to Financial Gain Dieter $274,696.16 X 40% = $109,878.46 86. The majority of checks issued to Dieter were deposited into one of Dieter's three accounts at PNC Bank. a. The majority of checks issued to Dieter were deposited into the account titled "Dieter Associates Management and Marketing Services" (Account No. 7). b. Remaining checks were deposited into accounts titled The Horizon Institute" (Account No. 8) or Dieter's personal account (Account No. 9). 87. Dieter issued Scales a minimum of eighteen checks totaling $11,496.46 from four separate account sources over which he had signature authority, including checks directly from South Avenue Association's account, for services rendered as shown below: 12/21/01 8837 125.00 7 Duquesne University 12/28/01 01/12/02 8851 500.00 7 Computer Consulting 01/16/02 01/20/02 8852 500.00 7 Computer Consulting 01/22/02 02/15/02 8874 1,000.00 7 None Unknown 02/22/02 8880 500.00 7 Computer Service Unknown 04/06/02 8902 1,250.00 7 Computer and Monitor 04/08/02 06/09/02 842 614.20 9 Illegible Cashed Total 11,496.46 Scales, 04 -052 Page 22 a. Check numbers 1127 and 1142 totaling $2,500.00 were issued by Dieter to Scales directly from South Avenue Association's account for work completed by Scales in the building located at 747 South Avenue. b. Check number 8503 in the amount of $500.00 represents payment issued by Dieter to Scales for training conducted by Scales at TMA c. Check numbers 1127, 1142, and 8503 totaling $3,000 could be positively identified as payment issued to Scales for services provided at TMA. 88. Scales received the $11,496.46 in payments from Dieter /South Avenue Associates after voting as a member of the TMA to approve the contract with South Avenue Associates. a. Of that amount, at least $3,000 was directly related to services Scales provided to the TMA. 89. South Avenue Association, a business with which Scales was associated, realized a private pecuniary gain of at least $109,878.46 as a result of Scales' participation in the vote to approve the lease between TMA and South Avenue Association, Scales' participation in the discussion to increase monthly rent payments to South Avenue Association, and Scales' general participation to approve the payment of monthly bills which included rent payment to South Avenue Association while Scales served as a member of the TMA Board of Trustees. THE FOLLOWING FINDINGS RELATE TO SCALE'S EMPLOYMENT AS A TEACHER AT TMA 90. Communities In Schools (hereafter CIS) is a non - profit network of local, statewide, and national partnerships dedicated to helping children stay in school. a. The CIS mission is to champion the connection of community resources with schools to help young people learn, stay in school, and prepare for life. b. CIS partnerships exist in twenty -eight states and approximately one hundred ninety -four communities. 91. In the Pittsburgh area, CIS creates and manages school /community partnerships that meet students' academic and social needs through comprehensive services and the CIS Academy. a. Delivery of comprehensive services consists of the placement of a full -time coordinator at the school site to rally community resources, link the resources to the student and their families, manage the delivery of the resources, and follow -up on participation and progress. b. The CIS Academy is a non - traditional school for educationally at -risk students serving students from fifteen area school districts and offering a Scales, 04 -052 Page 23 stay -in- school program for students likely to leave school along with a dropout retrieval program for young adults who wish to return to earn their high school diploma. 92. Scales was employed as a teacher with Wilkinsburg Area School District from approximately September 5, 1997 through February 28, 2000 (See Findings No. 28). a. Scales submitted a letter of resignation to WSD Superintendent Joseph Tindal on February 28, 2000. b. Scales pursued an employment opportunity with CIS during his employment with WSD. 1. CIS was performing services with WSD during Scale's tenure at WSD. 93. On January 3, 2000, Scales received correspondence from Morton Stanfield, Executive Director, CIS, confirming Scales' employment with CIS effective January 18, 2000 as CIS Project Coordinator at the Letsche Education Center. a. Scales' responsibilities included providing leadership, technical assistance, and guidance regarding the computer education center at Letsche Education Center as well as direction for the full implementation of the EXTRA curriculum at the CIS Academy. b. Scales completed his employment application for CIS on January 18, 2000. 94. Scales was promoted to Project Coordinator /Technology Specialist at Letsche Education Center effective October 23, 2000. a. In his new position, Scales was additionally responsible for maintaining and troubleshooting CIS computer systems, installing new systems, fixing computers, and assuring that CIS's systems operated effectively. b. Scales was also to teach Cisco classes on weekends and evening at the CIS Academy. 95. Scales was furloughed from his position with CIS effective August 15, 2001 as a result of CIS no longer performing services at Letsche Education Center. a. Scales was paid his normal salary until the end of August 2001. b. Scales terminated his employment with CIS effective September 1, 2001. 96. A computer learning center and computer driven learning program (EXTRA) was implemented at TMA. a. The program was the same program utilized at WSD. b. Carla Jackson was employed as the Technology Specialist at TMA regarding the computer learning center from at least July 2000 through January 31, 2001. 1. Jackson voluntarily resigned from her position to accept a position elsewhere. Scales, 04 -052 Page 24 c. No certified teacher was placed into the Technology Specialist position at TMA for the remainder of the 2000 -2001 school year. 1. Basic computer instruction and some EXTRA instruction was provided by Teacher's Assistant Ray Johnson for the remainder of the 2000- 2001 school year. 2. Ray Johnson was the son of then Chief Administrative Officer Patrice Johnson. 3. Ray Johnson was not employed by TMA during the 2001 -2002 school year. 97. In or about May 2001, near the end of the 2000 -2001 school year, TMA enlisted the services of Robert Wright to serve as the interim CAO. a. Patrice Johnson's contract as CAO was terminated by the TMA board in May 2001. b. Wright had retired as a principal with WSD in 1999. c. Wright was pursued by TMA to bring TMA into compliance with charter school law and to revise the curriculum into that originally proposed in the TMA charter application. 1. Section 1724 -A, School Staff of the Charter School Law requires that at least seventy -five percent of the professional staff members of a charter school must hold appropriate state certification. 98. As the interim CAO, Wright was responsible for all aspects of the day -to -day operation of the school including staff development (i.e. staff selection, employment, etc.). a. The process utilized by Wright for hiring of teachers consisted of: 1. Advertising vacant positions in The Pittsburgh Post Gazette and The Pittsburgh Courier. 2. Reviewing the applicant's credentials and interviewing the applicant if necessary requirements were met. 3. Presentation of up to the three top candidates per position to the board (if three existed) for selection and employment. 4. Voting by the board regarding the hiring of the applicant and the establishing of the applicant's salary based on a salary matrix and experience. b. Wright did not normally recommend specific individuals to be hired. 1. Wright preferred that the board determine who should be hired. 99. TMA had no certified teacher to serve as the Technology Specialist at the school for the 2001 -2002 school year. a. Wright eventually discussed with Scales the possibility of Scales being employed as the TMA Technology Specialist. Check Number Check Date Gross Check Amount Net Check Amount Deposit Date Scales, 04 -052 Page 25 1. Scales was serving on the TMA board of directors at this time. b. Wright was aware that Scales was a certified teacher in the Commonwealth of Pennsylvania. c. Wright was aware that Scales had been employed by WSD as the computer center instructor 100. Scales' hiring as the Technology Specialist for TMA did not follow Wright's normal hiring process. a. No records could be located to document that the vacant position was advertised. b. Scales was not formally interviewed by Wright. c. No records could be located to document that additional candidates were interviewed. d. No records could be located to document that any additional candidates were presented to the board for consideration. 101. No minutes exist documenting any formal vote of the TMA board to hire Scales as the Technology Specialist for TMA or any abstention by Scales regarding his hiring. 102. Scales informed Wright that he would resign his position as a TMA board member if he obtained employment as the Technology Specialist with TMA. a. Wright established Scales' resignation from the TMA board as a condition of Scales' employment at TMA. 1. Wright was not comfortable with Scales occupying a position subordinate to him as a teacher while at the same time holding a position of authority over him as a TMA board member. 103. Scales refused to resign his board position after being hired as a Technology Specialist to teach at TMA. 104. Available TMA records, including payroll records, confirm Scales was compensated as a TMA employee (Technology Specialist) effective August 1, 2001. a. Scales' employment contract documents his salary at $36.000 annually. 105. Payroll at TMA was processed and issued through Automatic Data Processing, Inc., (ADP). a. Payroll was issued on or about the 15 and 30 of every month. 106. Scales received ten payroll checks from TMA through ADP totaling $10,090.15 (net) during the time frame of September 17, 2001 through January 23, 2002 as shown below: Check Number Check Date Gross Check Amount Net Check Amount Deposit Date 377006 09/17/01 1,557.63 $1,210.98 09 -17 -01 382779 09/28/01 1,557.63 1,210.98 09 -28 -01 390944 10/15/01 1,730.70 978.97 10 -15 -01 398107 10/30/01 1,730.70 1,070.05 10 -30 -01 408883 11/15/01 1,730.70 1,070.04 11 -15 -01 416089 11/30/01 1,730.70 797.06 11 -30 -01 423802 12/14/01 1,730.70 926.86 12 -14 -01 424591 12/31/01 1,730.70 926.86 12 -28 -01 440150 01/15/02 1,903.77 971.54 01 -15 -01 446209 01/23/02 1,730.64 926.81 01 -23 -01 Total $17,133.87 $10,090.15 Scales, 04 -052 Page 26 a. All checks received by Scales were deposited into Scales' personal account at PNC Bank (Account No. 10- 0816 - 8814). 107. In addition to the ten payroll checks Scales received via ADP, Scales received two checks from TMA's business checking account at Mellon Bank (Account No. 134- 5748) totaling $2,863.64 regarding payroll for the month of August 2001. a. Scales received check number 1153 dated August 16, 2001, in the amount of $1,500.00. 1. Written in the memo section of check number 1153 is "Pay period 08- 01 -01 to 08- 15 -01." 2. Scales signed the check as an authorized signatory for TMA. b. Scales received check number 1157 dated September 4, 2001, in the amount of $1,363.64. 1. Written in the memo section of check number 1157 is "Payroll (08 -31- 01)." 2. Scales signed the check as an authorized signatory for TMA. 108. Approval of payroll issued to TMA employees was accomplished via the approval of the monthly bills. a. The total amount of payroll distributed regarding TMA employees was included with the financial statements presented to the TMA board for approval. b. The specific breakdown regarding the amount of funds paid to each individual employee was not documented on the financial statements. 109. Scales participated in votes to approve the monthly bills on a consistent basis, including payroll, at a time when Scales was employed as a salaried teacher with TMA. a. No records exist to document any abstentions by Scales regarding votes to approve monthly bills, including payroll, during Scales' tenure as a teacher with TMA. Scales, 04 -052 Page 27 110. Scales received a private pecuniary gain when he was hired as a Technology Specialist without following standard procedures. a. Scales received a private pecuniary gain of $19,997.51 when he participated in actions of the board to approve payments to him for duties performed as a TMA employee. 111. On May 22, 2001, the WSD board of directors took action to revoke the TMA charter for material violations of its charter; failure to meet the requirements for student performance pursuant to the Pennsylvania Code and its charter; failure to meet generally accepted standards of fiscal management and audit requirements; violations of provisions of law governing children with disabilities; and violations of the State Ethics Act. a. On May 23, 2001 the WSD board of directors sent TMA notice of and reasons for the revocation and the public hearing date of June 12, 2001. 1. Pursuant with Charter School Law, the WSD board of directors was required to conduct a public hearing concerning the revocation. b. Alleged violations of the State Ethics Act focused on failure of TMA board members to file Statements of Financial Interests and Scales' voting on matters directly affecting South Avenue Association. 112. On June 12, 2001, a public hearing regarding the revocation of TMA's charter was conducted by hearing officer Stanley Mitchell, Esquire. a. Scales was present and represented TMA at the hearing as the president of the TMA board. 113. On July 16, 2001, WSD board of directors held a special meeting regarding the possible revocation of TMA's charter. a. At the meeting, WSD board member James Richard motioned, seconded by board member Raymond Griffith, to approve the revocation of TMA's charter. 1. The motion passed 8 -0 with one board member absent. b. A Resolution documenting the revocation of TMA's charter is dated July 16, 2001. 114. On or about August 13, 2001, TMA appealed the revocation of its charter by the WSD board of directors with the Charter School Appeals Board. a. TMA solicitor Andrew F. Evankovich filed the appeal on behalf of TMA. b. WSD solicitor Isobel Storch filed an answer with the Charter School Appeals Board on or about September 4, 2001 to the appeal filed by TMA. 115. The Charter School Appeals Board issued an Opinion and Order on or about January 15, 2002 denying TMA's appeal and affirming the decision of WSD to terminate the charter issued to TMA. a. The Charter School Appeals Board found that: 1. TMA violated material terms of its charter; Check Date Check Number Check Amount Signatories Memo Account Number Deposit Date 07 -12 -99 1084 $9.50 Jones Randall Reimbursement- Parking 134 -5748 Cashed 11 -13 -00 1184 200.00 Jones Randall Travel to Virginia 1008168478 Unknown 05 -14 -01 1124 500.00 Scales Randall None 134 -5748 Unknown 06 -05 -01 1132 250.00 Scales Randall Harrisburg Trip 134 -5748 06/06/01 06 -22 -01 10595 250.00 Scales Randall Travel- Harrisburg Trip 1008168478 Cashed 07 -31 -01 1149 91.81 Scales Randall Reimbursement- Meeting 134 -5748 Cashed 09 -21 -01 1166 188.21 Scales A- Quintanilla Teacher Materials 134 -5748 Cashed 10 -22 -01 1173 75.00 Scales A- Quintanilla Field Trip 134 -5748 Cashed 11 -12 -01 1183 519.00 Scales A- Quintanilla Missed Prep Periods Since August 134 -5748 Cashed 11 -30 -01 10746 415.00 Scales A- Quintanilla Highmark BC /BS, Vision Services Reimbursement 1008168478 11/30/01 12 -07 -01 1203 300.00 Scales A- Quintanilla Mentoring 134 -5748 Cashed 12 -07 -01 1206 300.00 Scales A- Quintanilla Petty Cash 134 -5748 Cashed 01 -22 -02 0000* 1,400.00 Scales Stewart After School /Staff 1014575395 Cashed 01 -25 -02 1214 150.00 Scales Security / Cleaning 134 -5748 Cashed 02 -22 -02 1231 600.00 Scales Rankin Closing out School / Mail, Etc. 134 -5748 Cashed 03 -08 -02 1232 800.00 Scales Rankin Work At TMA 134 -5748 Cashed Total $6,048.52 Scales, 04 -052 Page 28 2. TMA failed to meet the standards for student performance set forth in the charter and in the Department of Education's regulations; 3. TMA failed to meet the generally accepted standards for fiscal management or audit requirements; 4. TMA violated the Commonwealth's Charter School Law; and 5. TMA violated other laws applicable to the charter school. b. TMA closed permanently on January 25, 2002. THE FOLLOWING FINDINGS REFER TO THE ALLEGATION THAT SCALES PARTICIPATED IN ACTIONS OT [sic] ISSUE PAYMENT TO HIMSELF WITHOUT BOARD APPROVAL. 116. In addition to being compensated by TMA as an employee, Scales received at least sixteen additional checks from TMA totaling $6,048.52 in both his position as a TMA board member and as a TMA employee as shown below: *= Starter Check a. Scales signed (14) of the (16) checks issued to him. b. Check numbers 1173, 1206, 0000, and 1214 represent checks written to cash and endorsed by Scales. Scales, 04 -052 Page 29 c. Check numbers 0000, 1214, 1231, and 1232 totaling $2,950.00 were written immediately prior to or after the official close of TMA. 1. Scales signed as an authorized signatory on check number 0000, 1214, 1231, and 1232. 2. The checks were issued between January 22, 2002 and March 8, 2002. 3. The TMA closed on January 25, 2002. d. None of the (16) payments were approved by the TMA board. 117. Of the $6,048.52 payments made to Scales, $1,479.52 can be traced to actual expense reimbursement. a. Those included check no.'s 1084, 1184, 1132, 10595, 1149, 1166, 1173, and 10746. b. The remaining payments totaling $4,569.00 were made without board approval. c. Scales signed all of these checks. 118. Scales realized a private pecuniary gain of $4,569 when he authorized payments to him without board approval. THE FOLLOWING FINDINGS RELATE TO SCALES' INTENTIONAL BACKDATING OF HIS 1999 CALENDAR YEAR STATEMENT OF FINANCIAL INTERESTS AND ADDITIONAL FAILURE TO FILE STATEMENTS OF FINANCIAL INTERESTS FOR CALENDAR YEARS 1998, 2000,2001, AND 2002 119. Scales was required to file Statements of Financial Interests by May 1 St annually in his position as a TMA board member. a Scales failed to file Statements of Financial Interests for calendar years 1998, 2000, 2001, and 2002. b. No forms were present for Scales regarding the above - listed calendar years in TMA records maintained at WSD. 120. Scales filed a Statement of Financial Interests dated December 11, 2000 for calendar year 1999. a. Scales did not complete all applicable sections of the Statement of Financial Interests filed. 121. Required disclosures on Statements of Financial Interest include real estate interests, creditors, direct or indirect sources of income, and office, directorship, or employment in any business. 122. Scales disclosed income from Communities In Schools on his 1999 calendar year Statement of Financial Interests filed on December 11, 2000. a. Scales did not gain employment with Communities In School until January 2000. Scales, 04 -052 Page 30 123. Scales was employed in a full time position with WSD from January 1999 through December 1999. a. Scales failed to disclose income from WSD on his 1999 calendar year Statement of Financial Interests. 124. Scales served as the President of South Avenue Association from at least May 21, 1999 through at least January 2001 and as a board member from at least May 21, 1999 through January 2002. a. Scales failed to disclose his office, directorship, or employment with South Avenue Association on his 1999 calendar year Statement of Financial Interests. 125. Scales' 1999 calendar year Statement of Financial Interests was filed on a form with a revision date of SEC -1 REV. 1/01. a. Forms with the revision date of SEC -1 REV. 1/01 were printed and mailed by Digital Ink. b. The mailing date associated with SEC -1 REV. 1/01 forms was December29, 2000. 126. Scales' 1999 calendar year Statement of Financial Interests is dated December 11, 2000 (See Findings No. 120). a. SEC -1 REV. 1/01 forms had not been mailed as of December 11, 2000. b. Scales intentionally backdated his Statement of Financial Interests filed for calendar year 1999 giving the appearance that the form had been timely filed. 127. Scales and South Avenue Association, a business with which Scales was associated, realized a financial gain of approximately $130,491.25 as a result of Scales participating in discussions, votes, and actions of the board in relation to the issuing of payment to South Avenue Association, Scales gaining employment with TMA by circumventing normal hiring procedures, and Scales participating in voting to approve checks issued to himself and signing said checks as the TMA board president as shown below: Description Payment to South Avenue Association Payment to Scales from Dieter TMA Teacher's Salary Checks Written at Close of School w/o board approval Total Financial Gain $109,878.46 11,496.46 12,953.79 [sic] 4,659.00 fsicl $138,987.71 [sic] III. DISCUSSION: At all times relevant to this matter, the Respondent, Aaron Scales (Scales), has been a lic official subject to the provisions of the Public Official and Employee Ethics Law, Act pub 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 Scales, as President and Member of the Board of Trustees ( "Trustees Board ") of the Thurgood Marshall Academy Charter School (School) violated Scales, 04 -052 Page 31 Sections 1103(a) and 1104(a) of the Ethics Act when he participated in actions of the Trustees Board to award a contract to South Avenue Association (SAA), a business with which he is associated; when he participated in Trustees Board actions to approve payments to SAA, including signing checks; when he used his position as a Trustees Board Member to obtain employment as a teacher with the School without following the established hiring process at the School at that time; when he failed to file Statements of Financial Interests (SFIs) in his position as a Trustees Board Member for calendar years 1998, 2000, 2001, and 2002; and when he intentionally backdated his SFI in his position as a Trustees Board Member for calendar year 1999. Pursuant to Section 1103(a) of the Ethics Act quoted above, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa. C. S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1104(a) of the Ethics Act requires that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it: § 1104. Statement of financial interests required to be filed (a) Public official or public employee. —Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial Scales, 04 -052 Page 32 interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. § 1104(a). Section 1105(a) of the Ethics Act provides that a person must, to the best of his /her knowledge, completely disclose all requested information on his /her SFI: § 1105. Statement of financial interests (a) Form. —The statement of financial interests filed pursuant to this chapter shall be on a form prescribed by the commission. All information requested on the statement shall be provided to the best of the knowledge, information and belief of the person required to file and shall be signed under oath or equivalent affirmation. 65 Pa.C.S. § 1105(a). Section 1105(b)(5) of the Ethics Act requires that every public official /public employee and candidate list the name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more: § 1105. Statement of financial interests (b) Required information. —The statement shall include the following information for the prior calendar year with regard to the person required to file the statement: (5) The name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. However, this provision shall not be construed to require the divulgence of confidential information protected by statute or existing professional codes of ethics or common law privileges. 65 Pa.C.S. § 1105(b)(5). Preliminarily, we note that we have a procedural issue regarding the failure to timely file an Answer to the Investigative Complaint. The pleading stage in this case began with the issuance of the Investigative Complaint on November 30, 2005. On its face, the Investigative Complaint stated that an Answer had to be received at this Commission within thirty (30) days of issuance and that the Respondent should take that document immediately to an attorney. In this case, no Answer was received by the December 30, 2005, deadline, that is, 30 days after the issuance of the Investigative Complaint. On January 30, 2006, Scales' counsel submitted an Answer With New Matter to the Investigative Complaint. That submission was received 31 days after the deadline for filing an Answer. By FAX received on January 3, 2006, at 11:44 p.m., Attorney Paul A. Ellis, Jr. and Attorney Denise R. Turner entered their appearances on behalf of Scales. In that same letter, Attorney Ellis requested a 30 -day extension to file an Answer, noting that there had Scales, 04 -052 Page 33 been no prior requests for such an extension in this matter. Attorney Ellis offered to waive the 45 -day hearing requirement and 30 -day decision issuance requirement in order to provide flexibility prior to a hearing. Chief Counsel responded to Mr. Ellis by letter of January 4, 2006, advising of the procedural posture of the case, the legal requirements of Section 1108(f) of the Ethics Act and the option of filing an application to file an Answer nunc pro tunc. An Application to file An Answer and Request Hearing Nunc Pro Tunc was received from Attorney Ellis on behalf of Scales on January 13, 2006. In the Application, it is argued that: • The standard for review of an application to file an Answer Nunc Pro Tunc pursuant to 65 Pa.C.S. § 1108(e) and §§ 21.21(a)(1) and 21.5(k) of this Commission's Regulations is "good cause shown." • Counsel Turner had a conversation with this Commission's Chief Counsel on December 27, 2005, and believed that an extension was granted. • Counsel would not contact the Commission and then fail to follow a directive that would yield a result contrary to what was sought. • Counsel Ellis did not believe his letter dated January 3, 2006, was to be considered by the Commission as the "actual request" for an extension, and the letter was sent in "short order" following a long holiday weekend. • Counsel Turner was recuperating from surgery at the time. • The Investigative Division Complaint was lengthy with 127 averments and with charts, which necessitated an extension to file an Answer. • Counsel Turner was of the belief after her conversation with Chief Counsel that an extension had been granted and pre- hearing discovery was available. • Had Counsel understood that a written extension request was required in order for the request to be officially processed, Counsel would have made every effort to submit the letter prior to December 30, 2005. • Counsel Turner explained to Counsel Ellis that she had contacted the Commission and requested a 30 -day extension and that a letter needed to be submitted further outlining the request and agreeing to waive certain time periods. • Granting an extension is not prejudicial to the Investigative Division of the Commission, but there is a "high risk of substantial rights of the Respondent possibly being affected . . ." • An extension should be granted because the above reasons meet the "good cause" standard for allowing an answer nunc pro tunc. The Investigative Division filed an Answer with New Matter opposing the Respondent's Application and submitted a Memorandum raising the following points: • The Investigative Division complied with the notice requirements and time deadlines of the Ethics Act. • The Commission's Chief Counsel outlined the process for obtaining an extension to file an Answer, and Attorney Turner indicated that she would FAX a request before the filing deadline but failed to do so. Scales, 04 -052 Page 34 • Chief Counsel of the Commission did not grant an extension to file an Answer to Attorney Turner. • Any mistaken belief by Respondent's counsel as to Commission process and procedures does not justify the failure to comply with those procedures. • Any incapacity of Attorney Turner could not prevent her from submitting a letter of request for an extension. • The January 3, 2006, letter of Attorney Ellis confirms that the extension request was filed after the filing deadline and further that the Chief Counsel advised Attorney Turner that there needed to be a timely request in writing for an extension. • Respondent has not alleged that his failure to timely file an Answer was due to either fraud, a breakdown in the administrative or postal process or incapacity of counsel that resulted in the inability to communicate. • Respondent has not alleged any timeframe for the purported extension to file an Answer. • Respondent filed his "Position Statement" approximately four hours after the filing deadline for that document. • Respondent's argument that extraordinary circumstances made it impossible to proceed is legally insufficient, being really a mistake of counsel. • The deadlines imposed by the Ethics Act and Regulations of the Commission may not be extended as a matter of grace. • An administrative agency must follow its regulations and not excuse the failure to file an Answer unless there is fraud, or a breakdown in the administrative /postal process. • An extraordinary high standard exists for allowing the filing of an answer nunc pro tunc. • An extreme level of incapacity must be shown in order to allow a nunc pro tunc filing. • The assertion of an unspecified surgery of counsel does not demonstrate the incapacity of counsel or "back up counsel" to communicate with this Commission's Chief Counsel. • Respondent has not demonstrated the non - negligent exceptional circumstance as delineated in judicial precedent. • Counsel has not proffered a proposed answer as required by judicial precedent. • This Commission has consistently followed the legal criteria for granting the filing of answers nunc pro tunc as is evidenced in Popkave, Order 1318 -R. The Respondent has filed a Reply to the New Matter raised by the Investigative Division in its Answer to "Respondent's Application to File Answer and Request Hearing Nunc Pro Tunc." In the Reply, Respondent raises the following arguments: • Although counsel did not use phraseology in the application regarding a breakdown Scales, 04 -052 Page 35 in the administrative process, the facts and circumstances constitute a breakdown in the administrative process. • Respondent's counsel believed an extension had been granted following a telephone conversation with the Commission's Chief Counsel. • Although Respondent's counsel did not allege an extreme level of incapacitation, the letter referencing the surgery was not offered as an excuse but as an explanation as to why a letter was not sent on December 28, 2005. • Respondent's counsel did not allege a misunderstanding since she believed an extension had been requested and granted and asked whether a second extension request would be a problem. • As to the receipt of Respondent's submission on January 13, 2006, after the noon deadline, Fed Ex was contracted to deliver the filing by 10:30 a.m. but the delivery was delayed. • Respondent meets the legal standard to proceed nunc pro tunc in that counsel's telephone conversation with the Chief Counsel led her to believe that an extension to file an Answer had been granted. The Respondent, in his Reply to the Memorandum of Law of the Investigative Division, argues as follows: • Both the "administrative breakdown" and "non- negligent act" standards for granting the Application Nunc Pro Tunc have been met. • Respondent's counsel was not informed that the failure to submit a letter by December 30, 2005, would mean that the extension request would not be recognized. • This is not a case of a non - negligent excuse for failing to meet a deadline in that an Answer was filed within 30 days of a 30 -day extension as to the December 30, 2005, filing deadline. • Respondent's counsel believes that a 30 -day extension was granted by Chief Counsel in a telephone conversation of December 22, 2005. • No misunderstanding occurred in that Respondent's counsel believed that an extension had been granted. • The Ethics Act and Regulations nowhere state that an extension to file an Answer must be in writing. • The telephone call of December 27, 2005, was the extension request and counsel's actions were based upon the grant of the extension. • The Investigative Division incorrectly applies case law on late appeals to response periods. • Respondent's counsel called Chief Counsel and believed that an extension had been granted, which is a non - negligent factor. • The alleged failure (to file a request) was corrected quickly by filing the correspondence on January 3, 2006, after a three day holiday weekend. Scales, 04 -052 Page 36 • There is no prejudice to the Commission in granting the application nunc pro tunc. • The assertion by the Investigative Division that there was a misunderstanding (mistake) by Respondent's counsel in the December 27, 2005, telephone conversation is invalid and unsupported by the facts of record. • Respondent and his counsel actively participated in the process without any neglect so as to abide by the Commission procedures. • The nunc pro tunc or good cause shown standards have been met such that the Application to File an Answer Nunc Pro Tunc should be granted. It is clear under the Ethics Act and Regulations that a response to the Investigative Complaint must be received within 30 days. 65 Pa.C.S. § 1108(e); 51 Pa. Code § 21.5(k). Cf., Criss v. Wise, 566 Pa. 437, 781 A.2d 1156 (2001). As noted above, even the face sheet of the Investigative Complaint states that an Answer must be received within 30 days. The Answer in this case was not received within 30 days. In fact, the request for an extension to file an Answer was received four days after the deadline for filing an Answer had expired. An Answer was submitted 31 days after the filing deadline. In order for this Commission to grant an application to file an Answer nunc pro tunc, we apply the same standard as is applied by the courts to untimely appeals (see, Getz v. Pennsylvania Game Commission, 475 A.2d 1369 (Pa. Commw. 1984) applying that standard in administrative proceedings to an untimely request for a hearing). The standard is that to accept the untimely filing as if it were timely, there must either have been fraud or a breakdown in the administrative process, see, West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975); Bianco v. Robinson Twp., 556 A.2d 993 (Pa. Commw. 1989)), which includes the postal process (Getz v. Pennsylvania Game Commission, 475 A.2d 1369 (1984)), or there must have been unique and compelling factual circumstances establishing non - negligent failure to file timely, Grimaud v. Dep't of Env. Resources, 638 A.2d 299 (Pa. Commw. 1994). See also, Criss v. Wise, supra. Mere delays in the U.S. mail, even during a holiday season, are considered foreseeable and avoidable and are insufficient grounds to support an Application Nunc Pro Tunc. Criss v. Wise, supra. Parenthetically, the "good cause shown" language of § 1108(e) of the Ethics Act, 65 Pa.C.S. § 1108(e) is not the standard for granting a request for an extension to file an Answer Nunc Pro Tunc as Respondent's counsel claims but simply the standard for determining whether a timely request warrants the granting of an extension. None of the conditions for allowing the filing of a late Answer is present in this case. In fact, there has not even been any allegation of fraud, any breakdown in the administrative process or the mail delivery system, or any unique and compelling factual circumstances that would establish a non - negligent failure to timely file an Answer. The proffered argument is essentially that counsel believed from a telephone conversation with this Commission's Chief Counsel on December 27, 2005, that Respondent had been granted an extension and the subsequent written request that was submitted by counsel after the deadline expired was not the "actual request." Even putting aside the fact that the Respondent has not shown or ever alleged any of the criteria for granting an application to file an Answer Nunc Pro Tunc, counsel's letter of January 3, 2006, belies the assertion that Chief Counsel had granted an extension. Respondent's counsel stated: "I am writing on behalf of Mr. Scales at the above - captioned matter, specifically to request a 30 -day extension to draft an Answer to the Investigative Complaint.... Please note that there have been no prior requests for an extension in this matter." Ellis, letter, p. 1. Chief Counsel did not grant an extension. Parenthetically, Respondent's counsel also asserts in the Application that Chief Counsel informed Attorney Turner that "pre- hearing discovery" is permitted. We do not believe that Chief Counsel in that conversation told Respondent's counsel that pre- hearing Scales, 04 -052 Page 37 discovery was allowable for Respondent. It is fundamental that pre- hearing discovery is not allowable in an administrative proceeding. See, Weinberg v. Commonwealth, et al., 398 A.2d 1120 (Pa. Commw. 1979); UGI v. Unemployment Compensation Board of Review, 851 A.2d 240 (Pa. Commw. 2004). Rather, the Ethics Act provides for access limited to any evidence intended to be used by the [C]ommission at the hearing and any exculpatory evidence developed by the [C]ommission in the course of its investigation." 65 Pa. C. S. § 1108(e). Suffice it to say that the statements in the letter of Respondent's counsel defeat his own arguments. Counsel, in his letter of January 3, 2006, states that such was the first request to seek an extension to file an Answer in this case. Requests and extensions are done in written form rather than verbally for the very reason demonstrated in this case: the need to conclusively establish factually that the request was made, the circumstances for the request and the time of the request. The arguments presented by Respondent provide no basis for allowing the filing of a late Answer. Baxter, Order No. 985. The Application to file an Answer and Request Hearing Nunc Pro Tunc is denied. Having noted the issues and applicable law and disposed of the procedural issue, we shall now summarize the relevant facts. Scales served as a member of the Trustees Board of the School from September 1998 through January 2002. However, Scales was not involved in the development or creation of the School, which was established through the grant of a Charter by the Wilkinsburg School District (WSD) in November of 1997. The Charter granted to the School provided for the commencement of operation in the 1998 -1999 school year and continuation for three school years thereafter, followed by eligibility renewals in five -year periods. The initial Board of Directors of the School was composed of the founding members of the Charter. Scales was not one of those members. The Board of Directors of the School was responsible for all aspects of the development of the School, including the hiring of personnel for curriculum development, locating a suitable school site, and the hiring of teachers and administrative staff. Funding for the School was supplied through the Pennsylvania Department of Education, WSD, and several other entities. The School contracted with Joseph Newkirk, III to assist in the planning and development of the School as Headmaster /Chief Administrative Officer. Newkirk's duties and responsibilities included hiring staff, locating a school building, marketing the School and developing a curriculum. Although the School was to open in September 1998, the opening was delayed for a year due to various concerns about operational readiness. Since Newkirk had the responsibility of locating a property, he reviewed a few sites, one of which was a property at 747 South Avenue in Wilkinsburg. Since the realty consisted of a multi -story building, parking lot, student play area, daycare center, and existing heating and air - conditioning system with a park and tennis court nearby, Newkirk entered into discussions to purchase the property. Newkirk and the property owner agreed upon a selling price of $250,000. After various financing avenues were pursued, a decision was made to rent the property. Since the Trustees Board and various lenders desired ownership of the property by an outside company, it was suggested that a non- profit company be created to act as an ownership agent for the property. Richard Dieter, a consultant to the Trustees Board, was responsible for organizing the non - profit entity. Dieter contacted Scales and Brian Magan to serve as corporate officers for the new non- profit, SAA. Scales, 04 -052 Page 38 At the time that the Charter for the School was granted and the School was being developed, Scales had been employed by WSD as a substitute teacher from September 1997 through June 1998. WSD employed Scales as a full -time teacher from July 1998 through February 2000. In September 1998, Scales became a member of the Trustees Board of the School. At a March 1999 Trustees Board meeting, Newkirk advised that the property at 747 South Avenue was under an agreement and would be purchased by a group of individuals. The purchasers were Scales, Dieter and Magan, c/o SAA. After the financing was in place, a resolution was passed at a May 1999 Trustees Board meeting to lease the 747 South Avenue property by a 4 -0 vote with Scales participating. The vote occurred when Scales was a corporate officer of SAA, the leasing company for the 747 South Avenue property. In May of 1999, SAA was incorporated as a Pennsylvania non - stock, non - profit corporation with the stated purpose of rehabilitating a building to be used as a public school. The records of the Corporation Bureau in the Pennsylvania Department of State list Scales as the President of SAA. The corporate address of SAA was Dieter's home address. Since SAA was to be the purchasing and managing agent for the School property, it had the responsibility for the ownership and operation of the facilities as well as any needed renovations, improvements, repairs or general maintenance. With Dieter as the operations agent for SAA, Scales and Magan had no responsibilities in the management and received no compensation from SAA as corporate officers. Following the securing of financing, a lease was signed between SAA and the School in July of 1999. SAA opened an account at PNC Bank and deposited $54,000 of payments from the School for leasehold improvements and start up. SAA received funding for the purchase of the property from the Local Initiatives Support Corporation (LISC). Scales signed the loan documents with LISC on behalf of SAA as its President. The funds from that loan were deposited in SAA's account. At a July 1999 Trustees Board meeting, Board Member Jones reported on initial plans to completely renovate the first two floors of the building to be completed by a projected opening date of the School in September 1999. The renovation plans were expanded to include the third floor that was to be completed by the end of December 1999. As to the Trustees Board, meetings generally occurred monthly or bi- weekly. Voting occurred as a group yes or no vote or by an individual roll call vote. The School meeting minutes did not include a listing of bills that were normally presented to the Trustees Board members in the form of financial statements in their meeting packets. Thus, the Trustees Board minutes did not reflect motions or voting to approve the payment of monthly bills. The Trustees Board had accounts at PNC Bank, Mellon Bank and Dollar Bank. Scales had signature authority over the accounts. When matters involving SAA came up at Trustees Board meetings, Scales spoke and acted on behalf of SAA. Although the monthly rental due to SAA for the lease of the property by the School was $15,958, there were some variations in the monthly payments. In July 2000, Scales proposed to the Trustees Board that the monthly rent be increased to $27,500 per month based upon proffered justifications. Although there was nothing in the official minutes to reflect an approval for increased rent payments, Scales' actions resulted in an increase of $12,500 in the monthly rental payments to SAA between July of 2000 to May of 2001. When Jones was removed as Trustees Board Member and President of the School in February 2001, Scales, the Trustees Board Vice President, assumed the presidency. After becoming President of the Trustees Board in February 2001, Scales purportedly Scales, 04 -052 Page 39 submitted a letter of resignation to Dieter as to his position of SAA President. However, Scales' letter of resignation could not be located and Scales remained on SAA's Trustees Board. After Scales became the Trustees Board President, he advocated for SAA as to its monthly rental payments. In fact, Scales allowed other School bills to go unpaid to ensure that the rent payments were issued to SAA. When the School's financial situation deteriorated, the monthly rental payments to SAA decreased. See, Fact Finding 75. Scales signed as an authorized signatory for the Trustees Board 15 of the 38 checks that were issued to SAA. Scales did not publicly disclose his association with SAA prior to voting to approve monthly bills and rental payments to SAA. The 38 checks that SAA received from the School were deposited in its account at the PNC Bank. Scales personally endorsed and deposited one of those checks into SAA's account. The Trustees Board also issued seven checks to SAA for janitorial, cleaning services and leasehold improvements. No Trustees Board action was taken for those extra payments. The details of the seven checks are delineated in Fact Finding 79. There is no record of Scales abstaining on issues involving SAA with the exception of one vote that occurred in August of 1999. All seven checks issued by the Trustees Board were deposited in SAA's account with PNC Bank. Of the 45 checks that were issued from the Trustees Board to SAA, the total amount for the rent payments, leasehold improvements and other services was $821,225. Dieter received at least 107 checks from SAA totaling $274,696.16 for services. Although Dieter asserts that 60% of the funds issued to him were utilized to pay contractors for various services, Dieter was not able to provide records to substantiate his estimates. Assuming that 60% of the payments were for services, then the 40% retained by Dieter would constitute a financial gain to him of at least $109,878.46. See, Fact Finding 85. Dieter in turn issued at least 18 checks to Scales totaling $11,496.46 from separate accounts over which he had signature authority or from SAA for purported services. See, Fact Finding 87. Scales received $11,496.46 in payments from Dieter /SAA after voting as a Trustees Board member to approve the contract with SAA. When Scales resigned as a teacher from WSD in February 2000, he pursued employment with Communities In Schools (CIS), a non - profit network of local, state and national partnerships designed to help children stay in school. In January 2000, Scales obtained employment with CIS as a project coordinator at the Letsche Education Center (LEC). Scales' duties and responsibilities included providing leadership, technical assistance and guidance regarding the computer education center at LEC. In October, Scales received a promotion to become the project coordinator /technology specialist at LEC. In that position, Scales had additional responsibilities of maintaining the CIS computer systems, installing new systems, fixing computers and ensuring that the CIS systems operated effectively. Scales also taught CISCO classes on weekends and evenings at CIS Academy until he was furloughed from his position, effective August 2001. At the School, a computer learning center and computer driven learning program were implemented. This was the same program utilized by WSD. The technology specialist who was employed at the School resigned in January 2001 to accept another position. No certified teacher was hired as a replacement for the technology specialist position for the remainder of the school year. In May 2001, the School enlisted the services of a Robert Wright to serve as the interim Chief Administrative Officer (CAO) for the purpose of bringing the School into compliance with the Charter School Law and to revise the curriculum to conform with the original School Charter Application. As interim CAO, Wright had the responsibilities of the daily operation of the School and staff. Scales, 04 -052 Page 40 Although Wright did not normally recommend specific individuals for hiring at the School, he discussed with Scales the possibility of him becoming the new technology specialist at the School. This was at the time when Scales was serving on the Trustees Board at the School. Wright knew that Scales was a certified teacher who had been employed by WSD as a computer center instructor. Although Scales became the technology specialist at the School, the regular hiring process was not followed. No records exist to establish that the vacant position was advertised. Scales was not formally interviewed by Wright. No records exist as to other candidates or interviews by the Trustees Board. No Trustees Board minutes exist regarding the hiring of Scales as the technology specialist. Although Scales informed Wright that he (Scales) would resign as a Trustees Board member if he obtained employment as the technology specialist, Scales refused to resign his Trustees Board position after becoming the technology specialist for the School. Scales' salary as the technology specialist, effective August 1, 2001, was at an annual salary of $36,000. Scales received 10 payroll checks from the School through Auto Data Processing, Inc. (ADP), the entity that processed the School's payroll, in the net amount of $10,090.15 for the period from September 2001 through January 2002. Scales also received two checks from the School's checking account in Mellon Bank totaling $2,863.64. The two checks were signed by Scales as an authorized signatory of the School. Scales participated in the votes to approve the monthly bills that included payroll at the time Scales was employed as a salaried teacher by the School. Scales received a private pecuniary benefit of $19,997.51 as to his participation in Trustees Board actions to approve payments to himself for duties performed as a School employee. See, Fact Finding 110. In July 2001, the WSD Board of Directors revoked the School's Charter for sundry violations including violations of its Charter, failure to meet requirements for students' performance, failure to meet generally accepted standards for School management, violations of laws governing children with disabilities and violations of the Ethics Act. At the Charter revocation hearing, Scales represented the School as Trustees Board President. WSD revoked the School's Charter and the School appealed the revocation to the Charter School Appeals Board. In January 2002, the Charter School Appeals Board denied the School's appeal and affirmed the decision of WSD. Separate and apart from the payments that Scales received directly or indirectly from the School, he received at least 16 additional checks from the School totaling $6,048.52 as a result of his position as Trustees Board member and employee. See, Fact Finding 116. Of the 16 payments, which were not approved by the Trustees Board, Scales signed 14 of those checks issued to himself. Of the $6,048.52 in payments to Scales, the amount of $1,479.52 was attributed to actual expenses. After excluding the expense reimbursements, Scales realized a private pecuniary benefit of $4,569 as to payments to himself without Trustees Board approval. See, Fact Finding 118. As a Trustees Board member, Scales was required to file SFIs. However, Scales failed to file SFIs for the calendar years 1998, 2000, 2001 and 2002. Although Scales filed a SFI for the calendar year 1999, he did not complete all the applicable sections. The calendar year 1999 SFI filed by Scales had erroneous disclosures. In particular, Scales listed income from CIS in 1999 but did not have employment with CIS until January of 2000. Scales had employment with WSD in 1999 but failed to disclose that income on his 1999 calendar year SFI. Further, Scales served as President of SAA from 1999 through 2001 but failed to disclose his office, directorship or employment in SAA on his 1999 calendar year SFI. Scales, 04 -052 Page 41 The form that Scales used to file his 1999 calendar year SFI had a signature date of December 11, 2000. However, the form that Scales used had a printer's identification of SEC -1 REV. 1/01 that was not mailed to the Commission for distribution until December 29, 2000. Hence, Scales could not have signed the SFI on December 11, 2000, because it was not available at that time. Having concluded our summary of the facts, we note that the Investigative Division has filed a position statement wherein it raises the following points: • The averments in the Investigative Complaint are deemed admitted by law due to the failure to file an Answer. • As President /Trustees Board Member of the Charter School, Scales is a public official subject to the Ethics Act. • Actions taken by Scales as a Trustees Board Member were to the benefit of the South Avenue Association (SAA), a business with which he is associated. • Scales received payment from SAA for services performed vis -a -vis the Charter School. • Scales was in the positions of Trustees Board Member and teacher at the Charter School. • The normal teaching hiring process was not followed for Scales who participated in approving payments to himself, including signing checks. • Scales was paid for allegedly additional services to the Charter School without Trustees Board approval. • No SFIs were filed by Scales for the calendar years 1998, 2000, 2001 and 2002. • An untimely, deficient, backdated SFI was filed by Scales for the 1999 calendar year. • Violations of Sections 1103(a), 1104(a) and 1105(a) and (b) of the Ethics Act were the result of actions by Scales as to the lease contract between the Charter School and SAA, the approval of payments to SAA, the approval of payments to himself as a compensated employee of the Charter School, the issuance of payments to himself for additional alleged services to the Charter School without Trustees Board approval, the failure to file SFIs for the calendar years 1998 and 2000 -2002, the failure to accurately disclose sources of income on his 1999 calendar year SFI and the backdating of his 1999 calendar year SFI. • Uses of authority of office were exercised by Scales as to the lease contract, approval of bills and issuance of checks. • Actions taken by Scales as a Trustees Board Member under the Charter School law were uses of authority of office. • Actions were taken by Scales in advocating for rent increases for SAA, payments to SAA and additional payments not under contract. • Private pecuniary benefits were received by SAA and by Scales from his uses of authority of office in violation of Section 1103(a) of the Ethics Act. Scales, 04 -052 Page 42 • The financial gains that were received by Scales occurred after SAA received payments; payments were no longer received after the payments to SAA from the Charter School ended. • Scales was able to issue checks that were not authorized due to his signature authority as to Charter School bank accounts. • The failure to file SFIs for calendar years 1998, 2000 -2002 and a deficient, untimely, backdated SFI for calendar year 1999 are established by the facts of record. • Restitution at a minimum of $16,005 should be imposed upon Scales payable to the Commonwealth of Pennsylvania. The Respondent has filed a letter dated January 12, 2006, asserting the following: • Respondent is not in a position to address substantive issues in a Position Statement. • The "Commission's" [Investigative Division's] Position Statement would address the case in the procedural posture that the averments in the Investigative Complaint were admitted. • The Respondent's Position Statement should be submitted following the resolution of the Nun Pro Tunc request. • If the request to file an Answer Nunc Pro Tunc is denied, additional time should be allowed to file a Position Statement. Having summarized the above relevant facts and arguments, we must now determine whether the actions of Scales violated Sections 1103(a) and 1104(a) of the Ethics Act. In applying Section 1103(a) of the Ethics Act in the instant matter, there were uses of authority of office on the part of Scales. But for the fact that Scales was a member of the Trustees Board, he would not have been in a position to participate in actions to award the lease contract to SAA. Such participation by Scales was a use of authority of office. See, Juliante, Order 809. Scales' participation in actions of the Trustees Board resulted in pecuniary benefits to SAA consisting of the payments received. Those pecuniary benefits were private because there is no provision in law that would allow Scales to participate in actions to approve payments to SAA, a business with which he is associated as that term is defined under the Ethics Act. Lastly, the private pecuniary benefits were paid to SAA and also derivatively to Scales. Accordingly, Scales violated Section 1103(a) of the Ethics Act when he used the authority of office for private pecuniary benefits to SAA, a business with which he was associated. See, Popkave, Order 1318. Turning to the process of actually approving the payments to SAA and issuing checks in payment, there were also uses of authority of office by Scales. Scales voted to approve the payments and also signed checks that were issued to SAA. Such uses of authority of office by Scales resulted in private pecuniary benefits to SAA and derivatively to Scales himself. Accordingly, Scales violated Section 1103(a) of the Ethics Act when he participated in actions of the Trustees Board of the School to approve payments to SAA, a business with which he is associated. See, Rembold, Order 1303. Regarding Scales' employment as a teacher with the School, when a vacancy occurred in the technology specialist position, there were discussions between the interim CAO, Wright, and Scales regarding the position. Scales expressed to Wright that he Scales, 04 -052 Page 43 (Scales) would resign from the Trustees Board if he obtained employment as a technology specialist. Scales became the technology specialist without the hiring process being followed. There was no vacancy announcement and there were no interviews for the position. Scales did not resign from the Trustees Board. Trustees Board minutes do not reflect any action to hire Scales to that position of employment. Scales obtained the position of employment with the School by virtue of being a member of the Trustees Board and being able to interact with Wright. However, the facts of record do not show any use of authority of office by Scales to hire himself as a teacher for the School. Without a use of authority of office, there can be no violation of Section 1103(a) of the Ethics Act. See, McGuire and Marchitello v. SEC, 657 A.2d 1346 (Pa. Commw. 1995). Accordingly, Scales did not violate Section 1103(a) of the Ethics Act when he became a compensated teacher with the School, based upon a factual insufficiency of evidence. Turning to the SFI allegations, Scales was required to annually file the SFIs. However, Scales failed to file the SFIs for the calendar years 1998 and 2000 through 2002. See, Fact Finding 119(a). Accordingly, Scales violated Section 1104(a) of the Ethics Act in each instance when he failed to file SFIs for the calendar years 2000, 2001 and 2002. Regarding the 1999 calendar year SFI, the record reflects that the SFI was not only deficient but also was backdated. See, Fact Findings 122 -126. Scales violated Section 1105 (a) and (b) of the Ethics Act when he filed a deficient, untimely and backdated SFI for the calendar year 1999. See, O'Connor, Order 1269. Scales is directed within 30 days of the date of issuance of this Order to file an amended SFI for calendar year 1999 that will provide a true, accurate and complete disclosure of his financial interests. Further, the SFI will be signed with a current filing date. In addition, Scales will file SFIs for calendar years 2000 through 2002 within 30 days of the date of issuance of this Order. Given the revocation of the Charter of the School, the SFIs should be filed with WSD with copies filed with this Commission for compliance verification. Failure to comply with the above rule will result in the institution of an order enforcement action. With regard to calendar year 1998, the preliminary inquiry and investigation in this matter were commenced more than five years after the May 1, 1999, deadline by which Scales' 1998 calendar year SFI was due to be filed. Therefore, the five -year limitations period has expired, and Scales' failure to file the 1998 calendar year SFI may not form the basis for a violation in this case. See, 65 Pa.C.S. § 1108(m); 51 Pa. Code § 11.3. Section 1107(13) of the Ethics Act empowers this Commission to impose restitution in instances where a public official /public employee has obtained a financial gain in violation of the Ethics Act. Restitution is warranted in this case. Accordingly, Scales is directed within 30 days of the date of mailing of this Order to make payment to the Commonwealth of Pennsylvania through this Commission in the amount of $11,496.46, comprising the private pecuniary benefit Scales received through payments from SAA. Non - compliance will result in the institution of an order enforcement action. The record establishes that Scales used his public position for personal financial gain in derogation of both the letter and spirit of the Ethics Act. Scales' actions of increasing the rental payment to SAA, paying the rent to SAA and letting other bills go unpaid, and advocating for payments to SAA are particularly telling. Those payments from the School to SAA resulted in payments from SAA to Scales. Scales had no concerns about the continued viability of the School and the welfare of its students, only his own personal financial betterment. We find Scales' conduct to be callous and reprehensible. Given the egregious nature of Scales' conduct both as to his actions as a member of the Trustees Board of the School as well as his backdating of the SFI for calendar year Scales, 04 -052 Page 44 1991, we will refer this matter to the appropriate law enforcement authority for review as to the institution of criminal proceedings. IV. CONCLUSIONS OF LAW: 1. Aaron Scales, as a Member and President of the Board of Trustees of the Thurgood Marshall Academy Charter School ( "School "), for the relevant time period was a public official subject to the provisions of the Ethics Act. 2. Scales violated Section 1103(a) of the Ethics Act when he used the authority of the aforesaid public office for private pecuniary benefits to the South Avenue Association (SAA), a business with which he was associated. 3. Scales violated Section 1103(a) of the Ethics Act when he participated in actions of the Board of Trustees of the School to approve payments to SAA, a business with which he is associated. 4. Scales did not violate Section 1103(a) of the Ethics Act when he became a compensated teacher with the School, based upon a factual insufficiency of evidence establishing a use of authority of office. 5. Scales violated Section 1104(a) of the Ethics Act in each instance when he failed to file SFIs for the calendar years 2000, 2001 and 2002. 6. Scales violated Section 1105(a) and (b) of the Ethics Act when he filed a deficient, untimely and backdated SFI for the calendar year 1999. In Re: Aaron Scales ORDER NO. 1394 File Docket: 04 -052 Date Decided: 2/23/06 Date Mailed: 3/13/06 1 Aaron Scales, as a Member and President of the Board of Trustees of the Thurgood Marshall Academy Charter School ( "School "), violated Section 1103(a) of the Ethics Act when he used the authority of the aforesaid public office for private pecuniary benefits to the South Avenue Association (SAA), a business with which he was associated. 2. Scales violated Section 1103(a) of the Ethics Act when he participated in actions of the Board of Trustees of the School to approve payments to SAA, a business with which he is associated. 3. Scales did not violate Section 1103(a) of the Ethics Act when he became a compensated teacher with the School, based upon a factual insufficiency of evidence establishing a use of authority of office. 4. Scales violated Section 1104(a) of the Ethics Act in each instance when he failed to file SFIs for the calendar years 2000, 2001 and 2002. 5. Scales violated Section 1105(a) and (b) of the Ethics Act when he filed a deficient, untimely and backdated SFI for the calendar year 1999. 6. Scales is directed to make payment in the amount of $11,496.46 through this Commission payable to the Commonwealth of Pennsylvania within 30 days of the date of mailing of this Order. 7 Scales is directed to file SFIs for the calendar years 2000, 2001 and 2002 and an amended SFI for the calendar year 1999 with the Wilkinsburg School District with copies forwarded to this Commission for compliance verification. 8. Failure to comply with the provisions of paragraphs 6 and 7 will result in the institution of an order enforcement action. 9. This matter shall be referred to the appropriate law enforcement authority for review as to the institution of criminal proceedings BY THE COMMISSION, Louis W. Fryman, Chair