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HomeMy WebLinkAbout1402 HooverIn Re: Joseph Hoover, Respondent File Docket: 05 -038 X -ref: Order No. 1402 Date Decided: 6/23/06 Date Mailed: 6/30/06 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella 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. The record is complete. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Hoover, 05 -038 Page 2 I. ALLEGATION: That Joseph Hoover, a (public official /public employee) in his capacity as a Supervisor of Overton Township, Bradford County violated Sections 1103(a), 1104(a) and 1104(d) of the State Ethics Act (Act 93 of 1998) when he used the authority of his office for private pecuniary gain, including but not limited to claiming and receiving compensation as township working supervisor in excess of the amount set by the Township Board of Auditors; when he participated in actions of the board to approve payments to himself, including but not limited to approving payroll and signing checks; when he failed to file a Statement of Financial Interests for the 2004 calendar year by May 1, 2005; and when he subsequently filed a backdated from for the 2004 calendar year giving the impression the form was timely filed. II. FINDINGS: 1. The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Joseph Hoover violated provisions of the State Ethics Act (Act 93 of 1998). 2. Upon review of the complaint the Investigative Division initiated a preliminary inquiry on September 29, 2005. 3. The preliminary inquiry was completed within sixty days. 4. On November 21, 2005, a letter was forwarded to Joseph Hoover, 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 0750 0002 8074 7322. b. The domestic return receipt bore the signature of Marle Parsons, with a delivery date of November 23, 2005. 5. On April 28, 2006, an amended Notice of Investigation was forwarded to Joseph Hoover, by the Investigative Division of the State Ethics Commission informing him that the allegations contained in the November 21, 2005, Notice of Investigation were being amended. a. Said letter was forwarded by certified mail, no. 7004 2890 0004 1229 2769. b. The domestic return receipt bore the signature of June Hoover, with a delivery date of May 1, 2006. 6. Periodic notice letters were forwarded to Joseph Hoover in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 7 The Investigative Complaint was mailed to the Respondent on May 5, 2006. 8. Joseph Hoover has served as a supervisor for Overton Township Bradford County since January 2004. a. Hoover has served as the Vice Chairman of the Townships Board of Supervisors since January 2004. 9. Overton Township is a second class township with a three member board of supervisors. Hoover, 05 -038 Page 3 10. During 2004, all three members of the Overton Township Board of Supervisors were employed by the township road department. a. The townships road crew consists only of the three supervisors. 11. Typical job duties for the township's road crew include, but may not be limited to the following: a. Repairing township roads. b. Maintenance of township equipment. c. Cutting and removing brush and debris. d. Plowing snow from township roads. 12. All compensation received by the supervisors employed by the township is set annually by the Overton Township Board of Auditors. a. The board of auditors consists of three elected township residents. b. The setting of compensation by township auditors is consistent with Section 65606(a) 53 P.S. 65606 of the Second Class Township Code relating to compensation of working supervisors and reads in part: The compensation of supervisors, when employed as roadmasters, labormen, secretary, treasurer... or in any employee capacity... shall be determined by the board of auditors, at an hourly, daily, weekly, semi - monthly or monthly basis." c. Overton Township working supervisors are compensated at an hourly rate. 13. On or around the first of each year the board of auditors hold their annual meeting to decide the hourly rate and benefits that will be paid to the board of supervisors. a. Hourly rates are motioned and approved for each working supervisor. b. The hourly rates and benefits are recorded by the secretary of the auditors in the meeting minutes. 14. At the board of auditors annual meeting on January 6, 2004, the working supervisor's hourly rate for 2004 was set. a. Ray Nagele 8.90 /hr b. Joe Hoover 7.50 /hr c. Gene Carner 12.00 /hr 15. The Overton Township Board of Supervisors hold one public meeting per month, which schedule is set during the annual reorganization meeting. 16. Minutes from the Overton Township Board of Supervisors meeting reflect the following type of activities that typically occur during a meeting. a. The attendance of supervisors, township officials and guests are recorded. Hoover, 05 -038 Page 4 b. The prior month's meeting minutes are read and approved. c. The monthly treasurer's report is read and approved. d. Township activities are discussed. e. Public comment is heard. 17. During a supervisors' meeting on February 4, 2004, Supervisors Nagele and Hoover voiced their disapproval of the hourly rate set by the auditors on January 6, 2004. a. Hoover solicited the support of his friends to attend and show their disapproval of the rate set. b. Meeting minutes indicate that "Sid and Dave Hatch, Leo and Barry Young, Ronald Bahl, Bill Dumfee, and Don Robe attended the meeting as they did not agree with the wages set by the auditors." 18. The supervisors scheduled a joint meeting to be held with the township auditors during the supervisors' meeting on March 3, 2004, to agree on a new hourly wage for working supervisors. 19. The March 10, 2004 special meeting was held with all three supervisors and auditors Katherine Chase and Betty Bahl in attendance. a. Auditors' minutes and supervisors' minutes indicate auditor Shirley Bird was not in attendance. 20. Overton Township Board of Auditors' minutes from March 10, 2004 set the monthly rate for the working supervisors as follows: Ray Nagele, Jr. Joe Hoover Gene Carner $11.00 /hr $10.00 /hr $12.50/hr a. The minutes from the meeting contains the signatures of both auditors in attendance (Chase and Bahl). 21. During the special meeting on March 10, 2004, auditors Chase and Bahl agreed upon the hourly rates and recorded them on a note card. a. Auditor Chase read the amounts decided by the auditors, from the note card to those in attendance. 22. Township Secretary Doris Dibble recorded the amounts to be paid to Hoover and Nagele in the supervisors' minutes for the March 10, 2004 meeting at $1.00 /hour more than approved by the auditors on March 10, 2004 as shown below: Ray Nagele 12.00 /hr Joe Hoover 11.00 /hr Gene Carner 12.50/hr 23. Township Secretary Dibble's minutes from March 10, 2004, indicate that the amounts be paid retroactively to January 1, 2004. Hoover, 05 -038 Page 5 a. The board of auditor minutes from March 10, 2004, do not include the retroactive wording. 24. During the board of supervisors' meeting held on April 7, 2004, Dibble read the meeting minutes from the special meeting on March 10, 2004 for the supervisor's approval. a. Dibble read the wages decided during the meeting as follows: Ray Nagele 12.00 /hr Joe Hoover 11.00 /hr Gene Carner 12.50/hr b. Meeting minutes from April 7, 2004 show a unanimous vote for the approval of the prior months minutes. 1. The minutes and treasurers report was read and approved with Ray Nagele making the motion and Gene Carner 2 nd it." 25. Auditor Chase voiced hgr concern with the reading of the improper amounts during the Supervisors April 7 meeting. a. Auditor Chase was informed by Nagele that the discrepancy would be "taken care of ". b. Auditor Chases concerns were not recorded in the minutes. 26. Overton Township Board of Supervisors' minutes do not reflect any action being taken by Supervisors Nagele or Hoover to correct the wage discrepancy. a. Supervisors Hoover and Nagele collected the higher wages throughout 2004. b. Each received a dollar an hour higher than was set by the auditors. 27. During the auditors annual meeting on January 4, 2005, the auditors learned, through a review of the prior years minutes, that the wage discrepancy was not corrected. a. "Auditors minutes were read along with the secretary's minutes. Katherine Chase noted a discrepancy in wages for Ray Nagele, Jr. and Joe Hoover, auditors had set wages at special meeting on March 10, 2004: Ray Nagele Jr. $11.00 per hour, Joe Hoover at $10.00 per hour. The secretary minutes had Ray Nagele Jr. at $12.00 an hour and Joe Hoover at $11.00 per hour." 28. A subsequent review of the payroll reports, account ledgers, and checks by the board of auditors determined that Nagele and Hoover received $1.00 per hour pay in excess of the hourly wage set by the auditors for every hour worked during 2004. 29. A special meeting was held by the board of supervisors on January 31, 2005 to correct the wage dispute. a. The board of supervisors' meeting minutes indicate that no action was taken by the board of auditors. b. Supervisors Nagele and Hoover indicated that they would contact PSATS for how to correct the wage dispute. Hoover, 05 -038 Page 6 30. Township records do not include any information from PSATS on the wage issue. a. Hoover and Nagele do not know who they spoke with at PSATS. 31. Meeting minutes from a board of supervisor's meeting on February 2, 2005 indicate that the auditors were never contacted by PSATS on how to resolve the wage dispute. 32. The board of auditors met on March 7, 2005 and set the working supervisor's wage for 2005 as follows: Ray Nagele, Jr. Joe Hoover Gene Carner 12.00 /hr 11.00 /hr 12.50/hr 33. The board of auditors approved the supervisors' wages for 2005 at the same rates Hoover and Nagele received during calendar year 2004. a. The auditors made this decision in an effort to resolve the salary dispute with the supervisors. 34. On or around March 15, 2005, the board of auditors completed the calendar year 2004 audit, which was completed on or around March 15, 2005. a. The annual audit and financial report for calendar year 2004 for Overton Township that was submitted to the Commonwealth did not reflect the wage discrepancy. 35. Attached to and submitted with the annual audit and financial report was a sworn acknowledgement from Auditor Chase indicating her refusal to sign the audit due to the failure to list the $1.00 per hour received by the supervisors in excess of what was set by the board of auditors. a. "I, Katherine Chase, Secretary of the Overton Township Auditors, in good conscience cannot sign the 2004 audit for the above said township for the following reasons: 1. Two of the working supervisors were receiving one dollar per hour more than set rate for the year 2004, while knowing there was a discrepancy since April 7, 2004." 36. On or around March 22, 2005, the Department of Auditor General completed a liquid fuels tax fund audit report for Overton Township for a three year period ending December 31, 2004. a. The audit cited instances of non - compliance including "Township Supervisors paid wages in excess of amount approved by Board of Auditors." Our audit revealed that during 2004 two township supervisors were paid wages totaling $3,993.50 in excess of the amount approved by the Board of Auditors. According to the minutes of the township supervisors' meeting on March 10, 2002, one of the supervisors was to be paid $12.00 per hour and the other was to be paid $11.00 per hour. We further noted that according to the minutes of the auditors' meeting on March 10, 2004, these same supervisors Hoover, 05 -038 Page 7 were awarded wages of $11.00 per hour and $10.00 per hour respectively. Therefore, each supervisor was paid one dollar an hour more than what was approved by the Board of Auditors. The first supervisor worked 1,941.5 hours during 2004 and therefore was overpaid by $1,941.50. The second supervisor worked 2,052 hours during 2004 and was therefore overpaid by $2,052.00" b. The audit included the supervisors response to the State Auditors issue. The township supervisors stated: To address the wage problem it was a clear misunderstanding between the auditor's book and the township book. This matter was resolved at one point. Those wages of $11.00 and $12.00 were correct to the best of our knowledge. At this years auditors' meeting two certain auditors wanted to start a problem again. We the supervisors quickly addressed the situation at a special meeting. One of the auditors showed up with her resignation knowing there would be problems for what she was doing. The problem was discussed and all parties agreed that the $11.00 and $12.00 would remain, all parties signed the township minute book. At this time we assumed this problem was resolved. We then appointed a new auditor, hoping to get everything back on track. Then again the trouble returns from the auditor who was causing problems. It seems we have a problem with only one auditor who apparently is trying to make this a personal vendetta against two of the supervisors." c. The state auditors concluded in the audit that the wages paid in excess were not in compliance because they were not approved by the auditors. "There appears to be a disagreement between the township supervisors and the township auditors regarding the appropriate wage to be paid to the supervisors. This not withstanding, the two township supervisors were paid wages totaling $3,993.50 in excess of the amount approved by the Board of Auditors. Accordingly, the findings remains as stated." 37. Working supervisors' hours are recorded on PennDOT's municipal semi - monthly payroll report form and are maintained by Secretary Dibble. a. Payroll reports record the number of hours worked on a daily basis, and a description of the work completed. b. Payroll reports record semi - monthly totals, the hourly rate of pay and the gross amount paid for the month to the employee. c. Payroll reports for working supervisors are approved on a monthly basis. d. Reports are signed by all three supervisors. 38. Supervisors Nagele and Hoover signed all payroll reports during 2004, except for the month of October 2004. a. Payroll reports for 2004 show the hourly wage of Nagele at $12.00 and Joe Hoover at $11.00. 39. Payroll reports indicate the following hours per month worked by Supervisor Hoover during 2004. Hoover, 05 -038 Page 8 Hoover, Joseph Month Jan -04 Feb -04 Mar -04 Apr -04 May -04 Jun -04 Jul -04 Aug -04 Sep -04 Oct -04 Nov -04 Dec -04 Total Hours 40. Employee payroll checks are filled out by the township secretary on the day of a board of supervisors' meeting. a. Working supervisors' wages are paid from the township's state fund account. 41. Hoover and Nagele, as the only individuals having signature authority on the township bank accounts, are responsible for endorsing all of the checks issued. 42. During 2004, fourteen checks were issued to Supervisor Hoover for wages earned as a working supervisor. Checks were issued as follows: Joe Hoover Date 2/4/2004 3/3/2004 3/17/2004 3/17/2004 4/7/2004 5/5/2004 6/2/2004 7/7/2004 8/4/2004 9/1/2004 10/6/2004 11/3/2004 12/1/2004 12/22/2004 Hours Claimed 166 175.5 180 171.5 166 170 160 176 165 162 176 184 2052 Amount $ 1,040.05 $ 1,098.97 $ 512.88 $ 542.24 $ 1,610.92 $ 1,540.36 $ 1,496.96 $ 1,531.81 $ 1,442.70 $ 1,578.06 $ 1,485.64 $ 1,460.53 $ 1,576.33 $ 1,647.95 $18,565.40 Pay Rate ( /hr) $ 11.00 $ 11.00 $ 11.00 $ 11.00 $ 11.00 $ 11.00 $ 11.00 $ 11.00 $ 11.00 $ 11.00 $ 11.00 $ 11.00 Endorsed Nagele, Hoover Nagele, Hoover Nagele, Hoover Nagele, Hoover Nagele, Hoover Nagele, Hoover Nagele, Hoover Nagele, Hoover Nagele, Hoover Nagele, Hoover Nagele, Hoover Nagele, Hoover Nagele, Hoover Nagele, Hoover Total Check # 2303 1006 1018 1021 1028 1041 1051 1066 1079 1090 1095 1110 1121 1132 43. Township checks numbered 1018 and 1021 in the amounts of $512.88 and $542.24 paid to Hoover were issued as retroactive pay from January and February 2004. Hoover, 05 -038 Page 9 a. The amounts are the difference in pay from the wages $7.50 to $11.00 for Hoover. 44. Nagele and Hoover in their official capacity as supervisors, endorsed every check issued to the two of them for wages earned as working supervisors during 2004. a. These checks were based on the hourly wages of Nagele, $12.00 and Hoover $11.00 respectively. 45. Monthly treasurer's reports are read and approved by the supervisors during their regular monthly meetings. a. The treasurer's report's are recorded as part of the monthly minutes. b. The treasurer's report includes a listing of all expenses, which includes wages paid to working supervisors for labor. 46. Nagele and Hoover, in their official capacity as supervisors, routinely voted to approve the treasurer's reports during monthly meetings, throughout 2004. a. Meeting minutes reflect the approval of the treasurers reports, including wages paid to Nagele and Hoover. b. Meeting minutes were reviewed, read, and approved without correction by supervisors Nagele and Hoover throughout 2004. 47. The one dollar per hour in excess of the rate approved by the auditors received by Hoover throughout calendar year 2004, resulting in a personal financial gain of $2,052.00. a. Financial gain based on $1.00 X 2,052 hours = $2,052.00. THE FOLLOWING FINDINGS RELATE TO THE ALLEGATIONS CONCERNING HOOVER FAILING TO FILE STATEMENTS OF FINANCIAL INTERESTS. 48. As supervisor for Overton Township, Hoover was required annually to file a Statement of Financial Interests (SFI) form by the May 1 of each year, containing information for the prior calendar year. a. Hoover was required to file a SFI by May 1, 2004 for calendar year 2003 and May 1, 2005 for calendar year 2004. 49. A Statement of Financial Interests compliance review conducted by investigators for the State Ethics Commission confirmed that Hoover did not file SFIs with the township for the calendar years 2003 or 2004. a. Hoover did not file a SFI with Overton Township for calendar year 2003 by May 1, 2004 or calendar year 2004 by May 1, 2005. b. No SFI was on file for Hoover for calendar year 2002 which was required to be filed when he was a candidate in 2003. 50. Hoover was interviewed by Investigators from the State Ethics Commission on Apirl [sic] 20, 2006. a. During the interview Hoover's failure to file SFI's for calendar year 2004 was discussed. Hoover, 05 -038 Page 10 b. Hoover indicated that he filed his calendar year 2004 SFI with Bradford County. c. Hoover claimed that he did not maintain a personal copy of his calendar year 2004 SFI. 51. Hoover contacted SEC Investigators on April 21, 2006 and indicated that they had located the needed SFIs and were faxing them to the SEC Harrisburg office. a. Nagele asserted that he had located his calendar year 2002 and 2003 filings among the township's records. b. Nagele claimed that he and Hoover obtained Hoover's calendar year 2004 filing from the county courthouse. 52. On April 21, 2006 at 12:58 p.m. Hoover faxed his SFI for calendar year 2004 to the State Ethics Commission. Hoover's SFI included the following information: a. Calendar Year: 2004 Filed: 1/5/05 on SEC form 1/06 Position: Supervisor Creditors: None Direct /Indirect Income: Overton Township All Other Financial Interests: None 53. The SFI filed by Hoover for the 2004 calendar year was filed on a form with a revision date SEC -1 Rev. 01/06. a. SFIs with a revision date SEC -1 Rev. 01/06 were not received by the Administrative Division of the SEC until December 2005. b. These forms were not distributed to municipalities until December 2005. 54. Form SEC -1 Rev. 01/06 was not available to municipalities for completion in January 2003. 55. Hoover's SFI submitted to the State Ethics Commission on April 21, 2006 for calendar year 2004 was intentionally backdated to create the impression of a timely filing. 56. Hoover received compensation as a township supervisor totaling $794.16 during 2004 while not having filed a Statement of Financial Interests. a. Hoover overtly advanced that impression by stating that the missing form had been found. 57. Hoover also realized a private pecuniary gain of $2,052.00 as a result of the use of the authority of his public office to obtain compensation of $1.00 per hour higher than approved by the auditors during 2004. III. DISCUSSION: At all times relevant to this matter, the Respondent, Joseph Hoover (Hoover), has been a public official subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401 et seq., as codified by the Public Hoover, 05 -038 Page 11 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 Hoover, as an Overton Township Supervisor, Bradford County, violated Sections 1103(a), 1104(a) and 1104(d) of the Ethics Act when he used the authority of his office for private pecuniary gain by claiming and receiving compensation as township working supervisor in excess of the amount set by the Township Board of Auditors; when he participated in board actions to approve payments to himself by approving payroll and signing checks; when he failed to file a Statement of Financial Interests (SFI) for the 2004 calendar year by May 1, 2005; and when he subsequently filed a backdated form for the 2004 calendar year giving the impression the form was timely filed. 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 Act 9 of 1989/Act 93 of 1998 as follows: Section 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1104. Statement of financial interests required to be filed (a) 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 Hoover, 05 -038 Page 12 facts. 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) Section 1104(a) of the Ethics Law quoted above 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. Section 1104(d) of the Ethics Law provides: Section 1104. Statement of financial interests required to be filed. (d) No public official shall be allowed to take the oath of office or enter or continue upon his duties, nor shall he receive compensation from public funds, unless he has filed a statement of financial interests as required by this act. 65 Pa.C.S. § 1104(d). Having noted the issues and applicable law, we shall now summarize the relevant Hoover has served as an Overton Township Supervisor in Bradford County since January 2004. The Board of Supervisors consists of three members with Hoover serving as Vice Chairman and Nagele as Chairman since January of 2004. All three supervisors were employed in 2004 by the Township Road Department that solely consists of those three individuals. The road crew typically repairs township roads, maintains township equipment, cuts and removes brush and debris, and plows snow from the township roads. The compensation for the supervisors as township employees is set by the Township Board of Auditors. The Board of Auditors usually meets in early January of each year to set the hourly rate and benefits that will be paid to the supervisors as working employees. For the calendar year 2004, the Board of Auditors set the hourly rate of compensation for Nagele at $8.90 and for Hoover at $7.50. During a Board of Supervisors Meeting in February 2004, Nagele and Hoover expressed disapproval at the hourly rate set by the auditors in January. The supervisors then scheduled a joint meeting with the auditors for March 3, 2004 for the purpose of setting a new hourly wage rate for the working supervisors. At a March 10, 2004 special meeting held among the three supervisors and two of the three auditors, the auditors set the hourly rate for Nagele at $11.00 and for Hoover at $10.00. The minutes of that meeting contain the signatures of two auditors, one of whom read the hourly rates from a note card. However, the Township Secretary recorded the amounts at $1.00 per hour higher, that is, $12.00 for Nagele and $11.00 for Hoover. Those minutes further indicate that the amounts were to be paid retroactively to January 1, 2004 despite the fact that the minutes of the Board of Auditors did not reflect any provision for retroactive application. The minutes for the meeting of the Board of Supervisors were unanimously approved at a subsequent meeting in April 2004. After Auditor Chase raised the issue that the hourly rates for Nagele and Hoover were incorrect, Nagele responded that the discrepancy would Hoover, 05 -038 Page 13 be "taken care of ". Fact Finding 25. However, neither Nagele nor Hoover corrected the wage discrepancy and continued to collect wages at the higher unauthorized rate throughout 2004. At the annual meeting of the Board of Auditors on January 4, 2005, they learned from a review of the Board of Supervisors minutes that the wage discrepancy was not corrected. A review of the payroll reports revealed that Nagele and Hoover received $1.00 per hour pay more than approved by the auditors. At a special meeting of the Board of Supervisors on January 31, 2005, the matter of correcting the wages was raised with no action being taken. During the year 2004, Nagele and Hoover signed all payroll reports, except for the month of October, with the payroll reports reflecting the hourly wage for Nagele at $12.00 and for Hoover at $11.00. At a meeting of the Board of Auditors in March 2005, the supervisors' wages were set for Nagele at $12.00 per hour and Hoover at $11.00 per hour. The Board of Auditors approved the wages for Hoover and Nagele in 2005 to be the same as they actually received in 2004. After the Board of Auditors completed the calendar year 2004 audit of the Township books, Auditor Chase refused to sign the audit due to the omission of a statement that the supervisors received $1.00 per hour in excess of that which had been set by the Board of Auditors. In March of 2005, the Department of Auditor General performed a liquid fuel tax fund audit in the township for a three year period and noted that two Township Supervisors received wages in excess of the rate approved by the Board of Auditors. It was determined that in 2004, Nagele and Hoover received $3,993.50 in excess wages. The Township Supervisors responded to the Auditor General's finding by stating the wage problem was a misunderstanding that was resolved at one point. The Auditor General concluded that the wages paid were in excess of that which had been approved by the Board of Auditors. During 2004, 14 checks totaling $18,565.40 were issued to Hoover for wages earned as a working supervisor. Two checks issued to Hoover in that period included retroactive pay for January and February of 2004. Nagele and Hoover, in their official capacities, endorsed every check issued to them for wages earned as working supervisors in 2004. Nagele and Hoover also routinely voted to approve Treasurer reports in 2004 that included wages paid to them. The $1.00 per hour excess wage that was not approved by the Board of Auditors totaled $2,052.00 for Hoover in 2004. As to the SFI issue, Hoover was required to file SFIs for the calendar years 2003 and 2004 on or before May 1 of the respective following year. In a compliance review conducted by investigators of this Commission of the Township, it was learned that Hoover did not file SFIs for the calendar years 2002, 2003 and 2004. Hoover contacted Commission investigators on April 21, 2006 indicating that he and Nagele had located SFIs and would fax them to the Commission's Harrisburg office. Hoover faxed a purported SFI for calendar year 2004 to this Commission. The SFI had a revision date of SEC - 1 REV.01 /06 that was not distributed to municipalities until December 2005. Hence, the form was not available on the purported filing date and was in fact backdated by Hoover to create an impression of timely filing. Having summarized the above relevant facts, we must now determine whether the actions of Hoover violated Sections 1103(a), 1104(a) and 1104(d) of the Ethics Act. Initially, we must consider a procedural issue that has arisen 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 May 5, 2006. On its face, the Investigative Complaint stated that an Answer had to be received at this Commission Hoover, 05 -038 Page 14 within thirty (30) days of issuance and that the Respondent should take that document immediately to an attorney. No Answer was received by the June 5, 2006 deadline. A Petition to File Answer Nunc Pro Tunc with proffered Answer attached was received on June 14, 2006. In the Petition, Counsel states that he met with Respondent on May 11, 2006 to review the Investigative Complaint. In the following week, counsel experienced medical problems, went to a hospital emergency room on May 21, 2006 and underwent surgery a few days later. Thereafter, counsel only worked part -time until June 12, 2006. As a consequence, an Answer was not filed by the June 5, 2006 deadline. The Investigative Division has filed an Answer and Memorandum opposing the Respondent's Petition. The Investigative Division proffers the following: • Special Investigator Pat McEvoy contacted counsel as Township Solicitor and counsel did not represent the Respondent at that time; • Counsel has not proffered a responsive Answer but rather a counter Position Statement; • Counsel in the proffered Answer failed to specifically address the averments in the Investigative Complaint so that the Answer is legally deficient; • Counsel's Petition seeks permission to file nunc pro tunc based upon attorney negligence rather than on unforeseen /extraordinary circumstances that would make it impossible to timely file; • Counsel submits a request that has no legal basis for the requested relief; • Counsel has not even alleged fraud or a breakdown in the mail system, which are bases for granting a nunc pro tunc filing of an answer; • Counsel has not demonstrated non - negligent exceptional circumstances to justify the grant of requested relief; • An administrative agency may not extend statutory deadlines as a matter of grace; • The Commission has established an extraordinary high standard for allowing an untimely answer or appeal; • Respondent has failed to meet the high burden for filing an answer beyond the statutory deadline; • Attorney negligence does not provide a basis for allowing the filing of a late answer; • The Commission adopted the high standard for allowing the filing of untimely answers from court decisions in Pennsylvania; • Respondent has presented no evidence to warrant the grant of a filing of an Answer Nunc Pro Tunc; • Respondent has not established any non - negligent exceptional circumstance for the grant of the requested relief; • The Commission in numerous prior cases has followed prior precedent of Hoover, 05 -038 Page 15 the courts and its own precedent in denying requests for filing answers nunc pro tunc that do not meet the stringent criteria for allowance; • The Commission denied a request for filing an Answer Nunc Pro Tunc in Scales, Order 1394, based upon counsel's claimed incapacity from a recent surgery; and • Respondent has failed to establish any basis for the grant of his Petition to File an Answer Nunc Pro Tunc. It is clear under the Ethics Law 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. In this case, a Petition to File Answer Nunc Pro Tunc with proffered Answer was received nine days after the deadline for filing an Answer. In order for a late answer to be deemed timely filed, 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. Ct. 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. Ct. 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. Ct. 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 a Petition to File Answer Nunc Pro Tunc. Criss v. Wise, supra. 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. The only argument proffered is that counsel for Respondent had surgery in May of 2006 after which he worked part -time until June 12, 2006. That argument presents no basis for allowing the filing of a late Answer. Baxter, Order No. 985. Parenthetically, we note that our Regulations allow for the filing of an application for an extension to file an Answer. 51 Pa.Code §21.5(k). No such request was made in this case prior to the filing deadline. The Petition to File Answer Nunc Pro Tunc is denied. On the substantive issues, the Investigative Division has filed a Position Statement raising the following: Hoover received a personal financial gain in excess of the rate approved by the auditors; Hoover violated the Ethics Act by providing wages to himself that were not authorized by the auditors; Hoover attempted to deceive and hence intentionally violated the Ethics Act as to his 2004 calendar year SFI; Hoover violated the Ethics Act by participating, approving and issuing payments of wages to himself in excess of the rate approved by the auditors; Hoover violated the Ethics Act when he failed to file and then backdated an SFI; and Hoover received a private pecuniary benefit of $2,052 in excess wages and $794.16 in salary during the year he failed to file an SFI. The Investigative Division also seeks the imposition of interest on the total payback for Hoover. Preliminarily, we again note that all the averments of the Investigative Complaint are deemed admitted as Findings of Fact. Hoover, 05 -038 Page 16 As to Section 1103(a) of the Ethics Act, there were uses of authority of office on the part of Hoover regarding the compensation that he received as a working township employee. Even though the Township Board of Auditors performed its function of setting the compensation of Hoover at $7.50 per hour in January of 2004, followed by resetting the compensation in March of 2004 at $10.00 an hour, Hoover took action to receive compensation at an unauthorized rate of $11.00 per hour, retroactive to the beginning of January of that year. In addition, Hoover participated in the payroll approval that was done on a monthly basis. Hoover also co- signed most of the payroll reports for 2004 and co- endorsed the Township checks that were issued in payment to him. All such actions were uses of authority of office. See, Juliante, Order 809. The uses of authority of office on the part of Hoover resulted in a pecuniary benefit to him consisting of the $2,052.00 that he received as a working township employee, computed as 2,052 hours x $1.00 per hour of additional unauthorized compensation. In that such compensation was a financial gain that was not authorized in law, it was a private pecuniary benefit. Lastly, that private pecuniary benefit inured to Hoover himself. Accordingly, Hoover violated Section 1103(a) of the Ethics Act when he used the authority of office as a Township Supervisor to increase his rate of compensation as a working Township employee, thereby generating additional compensation of $2,052.00 to himself that was not authorized by the Township Board of Auditors. See, Hessinger, Order 931. Hoover violated Section 1103(a) of the Ethics Act when he used the authority of office to approve excess compensation to himself and co- endorsed checks payable to himself for that unauthorized compensation. The last matter before us concerns the calendar year 2003 and 2004 SFIs that Hoover was required to file. The record reflects that Hoover did not timely file the 2003 and 2004 calendar year SFIs by the filing deadline of May 1, 2004 and May 1, 2005, respectively. Hoover also failed to file an SFI for the 2002 calendar year. In addition, after Hoover was confronted with the failure to file, he produced a backdated SFI for the 2004 calendar year. That SFI had a printer's revision dated SEC -1 REV.01 /06 and this Commission did not distribute the forms until December 2005. Accordingly, Hoover violated Section 1104(a) of the Ethics Act when he failed to timely file an SFI for the 2004 calendar year by May 1, 2005. See, Attardo, Order 1206. In addition, Hoover violated Section 1104(a) of the Ethics Act when he backdated for the calendar year 2004 an SFI that was prepared and submitted after May 1, 2005. See, Thomas, Order 1218. Hoover received compensation during calendar year 2004 but failed to file the requisite SFI. Accordingly, Hoover violated Section 1104(d) of the Ethics Act when he received compensation as a public official but failed to file the requisite SFI for calendar year 2004. See, Draper, Order 1229. Section 407(13)/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, Hoover 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 $2,052.00. In addition to the above, Hoover will file complete and accurate SFIs /amended SFlsforthe calendar years 2002, 2003 and 2004 within 30 days of the date of mailing of this Order, with current (not backdated) filing dates. The originals will be filed with Overton Township, with copies filed with this Commission for compliance verification purposes. Non - compliance will result in the institution of an order enforcement action. We remind Hoover that public office is a public trust. Hoover is directed to comport himself in the future so that his conduct adheres to both the letter and spirit of the Ethics Act. IV. CONCLUSIONS OF LAW: Hoover, 05 -038 Page 17 1 Joseph Hoover (Hoover), a public official in his capacity as Supervisor of Overton Township, Bradford County, is subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Hoover violated Section 1103(a) of the Ethics Act when he used the authority of office as a Township Supervisor to increase his rate of compensation as a working Township employee, thereby generating additional compensation of $2,052.00 to himself that was not authorized by the Township Board of Auditors. 3. Hoover violated Section 1103(a) of the Ethics Act when he used the authority of office to approve excess compensation to himself and co- endorsed checks payable to himself for that unauthorized compensation. 4. Hoover violated Section 1104(a) of the Ethics Act when he failed to timely file an SFI for the 2004 calendar year by May 1, 2005. 5. Hoover violated Section 1104(a) of the Ethics Act when he backdated for the calendar year 2004 an SFI that was prepared and submitted after May 1, 2005. 6. Hoover violated Section 1104(d) of the Ethics Act when he received compensation as a public official but failed to file the requisite SFI for calendar year 2004. In Re: Joseph Hoover, Respondent ORDER NO. 1402 File Docket: 05 -038 Date Decided: 6/23/06 Date Mailed: 6/30/06 1 Joseph Hoover (Hoover), as Supervisor of Overton Township, Bradford County, violated Section 1103(a) of the Ethics Act when he used the authority of office as a Township Supervisor to increase his rate of compensation as a working Township employee, thereby generating additional compensation of $2,052.00 to himself that was not authorized by the Township Board of Auditors. 2. Hoover violated Section 1103(a) of the Ethics Act when he used the authority of office to approve excess compensation to himself and co- endorsed checks payable to himself for that unauthorized compensation. 3. Hoover violated Section 1104(a) of the Ethics Act when he failed to timely file an SFI for the 2004 calendar year by May 1, 2005. 4. Hoover violated Section 1104(a) of the Ethics Act when he backdated for the calendar year 2004 an SFI that was prepared and submitted after May 1, 2005. 5. Hoover violated Section 1104(d) of the Ethics Act when he received compensation as a public official but failed to file the requisite SFI for calendar year 2004. 6. Hoover 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 $2,052.00. 7 Hoover is directed to file complete and accurate SFIs /amended SFIs for the calendar years 2002, 2003 and 2004 within 30 days of the date of mailing of this Order, with current (not backdated) filing dates. The originals will be filed with Overton Township, with copies filed with this Commission for compliance verification purposes. 8. Failure to comply with paragraphs 6 and 7 will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair