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HomeMy WebLinkAbout1411 SeamansIn Re: Kenneth Seamans, Respondent File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella 05 -040 Order No. 1411 10/4/2006 10/20/2006 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. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Stipulation of Findings is quoted as the Findings in this Order. The Consent Agreement was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Seamans, 05 -040 Page 2 I. ALLEGATION: That Kenneth Seamans, a public official /public employee, in his capacity as a Supervisor of Wilmington Township, Mercer County, violated Sections 1103(a), and 1104(a) provisions of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § §1103(a), and 1104(a) when he used the authority of his office for a private pecuniary gain, including but not limited to claiming roadmaster pay for administrative duties; including but not limited to attending Council of Government meetings and Solid Waste Authority meetings; when he subsequently approved, as a member of the Board of Supervisors, payments issued to him for administrative pay; and when he failed to file a Statements of Financial Interests for the 2003 calendar year by May 1, 2004. II. FINDINGS: 1. Kenneth Seamans has served as a Supervisor for Wilmington Township, Mercer County, since January 2004. a. Seamans previously served as a supervisor for Wilmington Township, Mercer County from January 1992 until November 2001. b. Seamans has served as the Chairman of the Board of Supervisors from approximately January 1994 until November 2001 and from January 2004 until May 2006. 1. Seamans was appointed to serve as a Mercer County Commissioner for 2002 and 2003. c. Seamans has been appointed as the Wilmington Township delegate to the Mercer County Municipal Panning Organization during his terms of office as supervisor. 2. Wilmington Township is a second -class township governed by a three - member board of supervisors. a. Supervisors currently receive $100.00 gross pay per meeting as payment for services in their supervisor capacity. 1. Regular meetings are held once per month. 2. Occasional special meetings are held throughout the year. b. The supervisors must be present at the meeting to receive the $100.00. 3. Seamans has been appointed as a township roadmaster annually during his entire length of service as a township supervisor a. All three Wilmington Township supervisors are appointed as roadmaster at the township's annual reorganization meetings. b. No one supervisor maintains more authority over the other supervisors while working as roadmasters for the township. 4. The three township roadmasters act as the township road crew to address various road /maintenance related issues in the township. a. Seamans normally works part time as roadmaster from approximately 8:00 Seamans, 05 -040 Page 3 a.m. to 12:00 p.m. Monday through Friday. 1. The other two supervisors work part time as roadmaster on as needed basis with no set schedule. b. Occasional part time employees are hired for the road crew as needed. 5. In April 2005 a job description was written for the position of roadmaster for Wilmington Township which included road maintenance, mechanical, and such other duties, including administrative duties which may be assigned. a. The township board of auditors would set the compensation. b. The job description was signed by the three township auditors. 6. Seamans generally is at the township building each morning to address work to be performed that day. a. The other roadmasters or road crew may be present depending upon what work needs to be completed. 7 Wilmington Township supervisors regular and reorganization meeting minutes from 2000 through 2001 and 2004 through 2006 document the appointment of all three supervisors as roadmasters and their requested hourly rate shown below: Meeting Date Requested Hourly Rate 01/05/2000 01/02/2001 01/14/2004 01/03/2005 01/03/2006 $11.00 $11.00 $13.00 $13.00 $13.00 a. Minutes note Seamans participation in the board's action requesting compensation from 2000 through 2001 and 2004 through 2006. 8. Minutes of the Wilmington Township Board of Auditors document the rates approved for supervisors working as roadmaster from 2000 through 2001 and 2004 through 2006. Auditors Reorganization Date Hourly Rate Approved 01/05/2000 $11.00 01/03/2001 $11.00 01/06/2004 $13.00 01/04/2005 $13.00 01/04/2006 $13.00 9. Wilmington Township Supervisors reorganization meeting in 2006 documents the appointment of Seamans as Assistant Secretary and the requested hourly rate to be set by the auditors. a. The Wilmington Township Board of Auditors set the salary of Seamans as the Assistant Secretary at their reorganization meeting on January 4, 2006 at $13.00 /H r. 10. Wilmington Township utilizes worksheets to document specific days and total hours worked by the working supervisors and part time employees. Seamans, 05 -040 Page 4 a. The worksheets are filled out separately by each working supervisor listing the location, job description and if any equipment was used. b. The worksheets are filled out on a monthly basis listing the dates and hours worked for that month. 1. The working supervisor either puts their initials or signature on the worksheet. 11. The worksheets completed by Seamans and the other working supervisors are given to the Secretary/ Treasurer which is then processed for payroll. 12. From 2000 through 2001 and 2004 through 2006, Seamans submitted worksheets to the township which documented specific days worked, the total number of hours worked per day, and a description of activities performed. a. Seamans' signature or his initials of "KS" appear on the majority of the worksheets he submitted for processing. 13. As Chairman of the Board of Supervisors, Seamans was often viewed as the main contact for the township. a. Seamans spent more time at the township office than the other supervisors. b. When not performing road work, Seamans assisted the Township Secretary /Treasurer answering the phone, going to the post office or sorting the mail. c. Seamans listed administration for hours claimed on numerous occasions on his worksheets. 14. Seamans position of Assistant Secretary became more defined after he received notice of the investigation letter dated November 21, 2005, informing him of the Ethics Commission investigation and allegations. a. The auditors set a specific salary for Seamans as the assistant secretary in 2006 which had not occurred in prior years. b. In 2006 Seamans began listing hours as assistant secretary on his worksheets and separating it from the hours as roadmaster. 15. Between 2000 through 2001 and 2004 though 2005 Seamans claimed hours and received wages as a township roadmaster for duties performed which were related to his position as township supervisor. a. These duties included administration, elections, post office, courthouse, attending Mercer County Council of Government (COG) meetings, Mercer County Municipal Planning Organization (MPO) meetings, meetings with County Commissioners, DEP, Sewer Authority Meeting and Zoning. 16. In 2000 through 2001 and 2004 through 2005, Seamans was compensated for approximately 229 hours at his hourly roadmaster rate for performing duties associated with his position as an elected supervisor which totaled $ 2,753 as shown below: a. 2000: 38 hours Seamans, 05 -040 Page 5 b. 2001: 74 hours c. 2004: 107 hours d. 2005: 10 hours 17. Seamans received roadmaster wages totaling $2,700 for 2000 through 2001 and 2004 through 2005 for hours spent on supervisory activities. a. 2000: $ 418.00 b. 2001: $ 814.00 c. 2004: $1,391.00 d. 2005: $ 130.00 e. Total: $2,753.00 18. Payroll is issued to Wilmington Township employees on a monthly basis. a. Payroll is approved at regular monthly meetings for payroll issued during the previous month. b. The motion to approve payroll is incorporated along with the motion to approve the monthly bills 19. Voting at Wilmington Township meetings occurs by an aye /nay vote. a. Voting on ordinances and routine monthly issues such as the approval of minutes and monthly bills and payroll occurs in a group aye /nay fashion. 1. Any abstentions or objections made during the group vote are specifically noted in the minutes. 20. Signature authority over township checks lies with the secretary /treasurer and all three supervisors. a. Township checks require the signatures of the secretary /treasurer and at least one of the supervisors. b. Signatures on township checks are live signatures. 1. A facsimile stamp is occasionally used for Kenneth Seamans because of a physical disability. 21. Seamans participated in actions as a township supervisor approving monthly payroll and signing payroll checks issued to himself for hours claimed as a roadmaster which were supervisory in nature as follows: a. Seamans voted 27 times between 2000 and 2001 and 2004 to 2005 to approve payroll, which included payments to him. b. Seamans signed 24 checks issued to him, during that timeframe, which included payments for administrative time. Seamans, 05 -040 Page 6 c. Of the 113 checks issued to Seamans, which included wages for supervisor duties, Seamans signed 108 as an authorized township signatory. 22. During a statement provided to a Commission Investigator on April 27, 2006 Seamans provided the following information: a. Seamans was first made aware around June 2004 that roadmasters could not receive compensation for the duties of a supervisor based on Ethics Commission Investigations of neighboring townships. 1. Seamans claimed he began to put more descriptive information on the worksheets he filed for the hours he claimed as roadmaster. b. Seamans estimated that of the hours he claimed as roadmaster, 85% of the time was related to working on the roads. c. Seamans admitted that in January 2006 he became the Assistant Secretary in order to protect himself for the hours he claimed on his worksheets based on the investigation being conducted by the Ethics Commission. 23. The information depicted below lists the percentages of the total salary Seamans received each year as roadmaster compared to the compensation he received for hours claimed as roadmaster that he spent performing supervisory activities: Year 2000 2001 2004 2005 Total Compensation As Roadmaster For Supervisory Activities $ 825.00 $1,617.00 $1,391.00 $ 201.50 $4,034.50 Salary as Roadmaster $11,238.50 $10,571.00 $13,437.50 $13,708.50 $48,955.50 Date Filed Calendar Year 02/18/2003 2002 Percentage of Percentage of Roadmaster Pay Roadmaster Pay for Supervisory for Roadmaster Activities Activities 7% 93% 15% 85% 10% 90% 1% 99% 8% 92% a. The salary received by Seamans as Roadmaster reflect that each year he was compensated at least 85% of the time for roadmaster activities and over a four year period it amounted to 92 %. The following findings relate to Seamans failure to file a Statement of Financial Interests for 2003 calendar year by May 1, 2004. 24. As a Wilmington Township Supervisor in 2004, Kenneth Seamans was required to file a Statement of Financial Interests for calendar year 2003 by May 1, 2004. a. Section 1104(a) of the State Ethics Act requires each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding year with the department, agency, body or bureau in which he is employed or to which he is appointed no later than May 1 of each year he holds such a position and of the year after he leaves such a position. 25. A Statement of Financial Interests (SFI) compliance review was conducted by a State Ethics Commission Investigator on October 20, 2005 for Wilmington Township and the following was determined regarding SFI's filed by Seamans for the past three years: Seamans, 05 -040 Page 7 01/12/2005 2004 a. No form was found on file for calendar year 2003. 26. On December 11, 2005 a copy of an SFI filed by Seamans on March 17, 2004 for calendar year 2003 at the Mercer County Courthouse was mailed to the offices of the State Ethics Commission by Wendy Campbell, Secretary/Treasurer and Custodian of Records of Wilmington Township. 27. The copy of the SFI for Seamans disclosed the following information: a. The form was filed on SEC -1 Rev. 01/04 b. Item No 6 listed the public position as Commissioner. c. Item No 7 listed the calendar year as 2003. d. The form was signed and dated March 17, 2004. e. The form reflected it was a copy from the Mercer County Courthouse. III. DISCUSSION: At all times relevant to this matter, the Respondent, Kenneth Seamans (Seamans), has been a public official subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401 et seq., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegations are that Seamans, as a Wilmington Township Supervisor, Mercer County, violated Sections 1103(a) and 1104(a) of the Ethics Act when he claimed roadmaster pay for administrative duties; when he subsequently approved payments issued to him for administrative pay; and when he failed to file a Statement of Financial Interests (SFI) for the 2003 calendar year by May 1, 2004. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 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. Seamans, 05 -040 Page 8 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 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. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are reproduced above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Seamans has served as a Wilmington Township, Mercer County Supervisor since January of 2004. Seamans has also held the following positions: Board Chairman from January 1994 to November 2001 and from January 2004 until May 2006, Mercer County Commissioner for 2002 and 2003, delegate to the Mercer County Municipal Planning Organization (MMPO) and as Township Roadmaster annually during his entire term of service. The Wilmington Township Board of Supervisors consists of three members, all of whom are appointed as Roadmasters during the Township's annual reorganization meetings. Seamans normally works as a Roadmaster from 8:00 a.m. to 12:00 p.m. Monday through Friday and the other two supervisors work part -time on an as needed basis without any schedule. In 2006, Seamans was also appointed as Assistant Secretary with an hourly rate of $13 approved by the auditors. The compensation for the supervisors working as roadmasters is set by the auditors. The approved hourly work rates for the years 2000 through 2006 are set forth in Fact Finding 7. The Township utilizes worksheets to document the specific days and hours worked for the Township Supervisors. The worksheets that were completed by Seamans and the other two supervisors were given to the Secretary /Treasurer for payroll Seamans, 05 -040 Page 9 processing. While Chairman of the Board, Seamans spent more time at the Township office than the other supervisors. In addition, when he did not perform road work, he assisted the Secretary /Treasurer in answering phones, going to the post office or sorting mail. In many instances, Seamans submitted hours performed for administrative work on his employee worksheet. After Seamans received notice of this investigation, his position as Assistant Secretary became more defined. However, between 2000 and 2001 and 2004 and 2005, Seamans claimed hours for duties that were performed in his elected position as Township Supervisor. Such supervisor duties included administration, elections, post office, courthouse, KOG and MMPO meetings, meetings with County Commissioners, DEP, Sewer Authority and Zoning. For 2000, 2001 and 2004 through 2005, Seamans received compensation of $2,753 for performing duties that were associated with his position as elected supervisor and not as a working Roadmaster. See, Fact Findings 16, 17. Payroll for Township employees is done on a monthly basis as part of a motion to approve the monthly bills. Voting on the monthly bills and payroll occurs as a group yes or no, with abstentions or objections specifically noted. For the issuance of Township checks, signatures are required by the Secretary /Treasurer and at least one of the supervisors. Seamans participated in the monthly approval of payroll and signed payroll checks issued to himself for hours claimed as Roadmaster that were in fact administrative, supervisory functions. Turning to the matter of an SFI, Seamans was required to file for calendar year 2003 on or before May 1, 2004. A compliance review in Wilmington Township reflected that although Seamans filed SFIs for the calendar years 2002 and 2004, no calendar year 2003 was found on file for Seamans at the Township. On December 11, 2005, a copy of an SFI filed by Seamans on March 17, 2004 for the calendar year 2003 at the Mercer County Courthouse was mailed to this Commission. The SFI reflected that it was a copy from the Mercer County Courthouse. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations as follows: "3. The Investigative Division will recommend the following in relation to the above allegations: a. That an unintentional violation of Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a) occurred in relation to Seamans' approving payments issued to him for administrative pay. b. That a violation of Section 1104(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1104(a) occurred when Seamans failed to file a Statement of Financial Interests for calendar year 2003 by May 1, 2004. 4. Seamans agrees to make payments to Wilmington Township in the amount of $458.84 per month, for six months, for a total restitution amount of $2,753. Said payments are to be forwarded to the Pennsylvania State Ethics Commission for processing with the first payment due within thirty (30) days of Seamans, 05 -040 Page 10 the issuance of the final adjudication in this matter. Seamans has since filed a Statement of Financial Interests and no further action will be taken." Consent Agreement, ¶3 and ¶4. In applying Section 1103(a) of the Ethics Act to the Stipulated Facts, the record establishes that Seamans received compensation as a Roadmaster in the amount of $2,753 for hours worked that related to his elected position as supervisor. See, Fact Findings 16, 17. But for the fact that Seamans was a supervisor, he would not have been in a position to submit such hours for payment that were for administrative work. In addition, Seamans as a supervisor participated in the bill approval process that included payroll. Part of the payroll that Seamans received related to administrative duties. Seamans was not entitled to receive wages as a Township employee for performing those administrative functions. Participation by Seamans included voting and signing checks that were issued in payment to himself. All such actions were uses of authority of office. See, Juliante, Order 809. The uses of authority of office on the part of Seamans resulted in pecuniary benefits to him consisting of the payments that he received as a working Township employee for performing elected supervisor administrative duties. The pecuniary benefits were not authorized in law because Seamans as a supervisor received a salary provided in the Second Class Township Code for performing those administrative duties as an elected official. There was no authorization in law for Seamans to submit hours worked for performing administrative duties and for receiving payments in his capacity of working Township employee. As such, the pecuniary benefits were private. Lastly, those private pecuniary benefits inured to Seamans. Accordingly, Seamans unintentionally violated Section 1103(a) of the Ethics Act when he claimed wages and participated in the approval process to pay himself employee wages for performing supervisor administrative duties. See, R.H. and T.W. v. SEC, 673 A.2d 1004 (Pa. Commw. 1996). Turning to the matter of the SFI, the record reflects that although SFIs for Seaman were on file with the Township for the calendar years 2002 and 2004, no SFI was found for the 2003 calendar year. The record further reflects that a copy of Seamans' 2003 calendar year SFI was forwarded to this Commission from the Mercer County Courthouse. In that regard, Seamans served as a Mercer County Commissioner in the years 2002 and 2003. It appears that although Seamans filed a 2003 calendar year SFI with the County, he failed to do so at the Township level. As per the stipulation of the parties, Seamans violated Section 1104(a) of the Ethics Act when he failed to timely file an SFI with the Township for the calendar year 2003 on or before May 1, 2004. We determine that the Consent Agreement submitted by the parties sets forth the proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, Seamans is directed to make payments to Wilmington Township in the amount of $458.84 per month, for six months, for a total restitution amount of $2,753. Said payments are to be forwarded to this Commission for processing with the first payment due within thirty (30) days of the issuance of the final adjudication in this matter. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Kenneth Seamans, as a Supervisor of Wilmington Township, Mercer County, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. Seamans, 05 -040 Page 11 2. Seamans unintentionally violated Section 1103(a) of the Ethics Act when he claimed wages and participated in the approval process to pay himself employee wages for performing supervisor administrative duties. 3. Seamans violated Section 1104(a) of the Ethics Act when he failed to timely file an SFI with the Township for the calendar year 2003 on or before May 1, 2004. In Re: Kenneth Seamans, Respondent ORDER NO. 1411 File Docket: 05 -040 Date Decided: 10/4/2006 Date Mailed: 10/20/2006 1 Kenneth Seamans, as a Supervisor of Wilmington Township, Mercer County unintentionally violated Section 1103(a) of the Ethics Act when he claimed wages and participated in the approval process to pay himself employee wages for performing supervisor administrative duties. 2. Seamans violated Section 1104(a) of the Ethics Act when he failed to timely file a Statement of Financial Interest with the Township for the calendar year 2003 on or before May 1, 2004. 3. Per the Consent Agreement of the parties, Seamans is directed to make payments to Wilmington Township in the amount of $458.84 per month, for six months, for a total restitution amount of $2,753. Said payments are to be forwarded to this Commission for processing with the first payment due within thirty (30) days of the issuance of the final adjudication in this matter. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair