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HomeMy WebLinkAbout1426 KillingerIn Re: Samuel D. Killinger, 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 Nicholas A. Colafella Reverend Scott Pilarz 05 -034 Order No.1426 1/8/07 1/23/07 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 ( "Ethics Act "), 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. A Stipulation of Findings and a Consent Agreement waiving an evidentiary hearing were submitted by the parties to the Commission for consideration. The record is complete. The Stipulation of Findings is quoted as the Findings in this Order. The Consent Agreement has been approved. This adjudication of the State Ethics Commission is issued under the Ethics Act 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 the Ethics Act. Any person who violates such confidentiality commits a misdemeanor and, upon conviction, may be 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. Klllinger, 05 -034 Page 2 I. ALLEGATION: That Samuel Killinger, a (public official /public employee) in his capacity as a Supervisor for Upper Tyrone Township, Fayette County, violated Sections 1103(a), 1104(a) and 1104(d) provisions of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § §1103(a), 1104(a) and 1104(d) when he used the authority of his office for a private pecuniary gain by claiming hours for compensation as Township Roadmaster which were related to his duties as Supervisor and when he subsequently participated in actions of the board to approve and issue payments to him; and when he failed to file a Statement of Financial Interest for the 2002 calendar year by May 1, 2003. II. FINDINGS: 1. Samuel Killinger has served as a Supervisor for Upper Tyrone Township, Fayette County since January 2002. a. Killinger has served as Chairman of the Board of Supervisors from January 2002 until the present time. b. Killinger has held the position of Township Roadmaster since January 2003. c. Killinger was appointed Assistant Township Secretary in January 2005. 2. Upper Tyrone Township is a second class township governed by a three - member board of supervisors. a. Supervisors currently receive $468.75 gross pay per quarter as payment for services in their supervisor capacity. 1. Regular meetings are held once per month. b. The supervisors did not need to be present at the meetings to be compensated. 3. Killinger has been appointed as a township roadmaster annually since January 2003. a. Since 2004 all three Upper Tyrone Township Supervisors have been appointed roadmaster. 1. In 2004 and 2005 Killinger, Charles Cook, and Jack Fullem served on the Board of Supervisors. 2. Fullem was replaced by William Edwards in January 2006. b. No one supervisor maintains more authority over the other supervisors while working as roadmasters for the township. 4. Minutes of the Upper Tyrone Township Board of Auditors document the rates approved for supervisors working as roadmaster from 2003 through 2006: Klllinger, 05 -034 Page 3 Auditors Reorganization Date 01/07/2003 01/06/2004 01/04/2005 01/04/2006 Hourly Rate Approved $11.67 $11.96 $12.26 $12.57 a. Upper Tyrone Township Auditor Nancy Killinger, wife of Sam Killinger abstained from voting to set the salary of the supervisors working as roadmaster. 5. Killinger and township employees Jack Fullem and Richard Camp act as the township road crew to address various road /maintenance related issues in the township. a. Killinger normally works part time as roadmaster from approximately 6:00 a.m. to 12:00 p.m. Monday through Friday. 1. The other two supervisors work part time as roadmaster on a limited basis with no set schedule. b. Camp and Fullem, an Upper Tyrone Township Supervisor until the end of 2005 and Roadmaster from 1994 through 2005, work full time for the township's road crew from approximately 7:00 a.m. to 3:00 p.m. Monday through Friday. 1. Fullem continued as an employee after leaving office as a township supervisor. 6. Township roadmasters are responsible for maintaining the township roads, including inspecting roads, plowing roads, maintaining the township vehicles, etc. a. Upper Tyrone Township has no written job description for the roadmaster position. 7 Killinger is generally at the township building each morning to address work to be performed that day. a. Killinger reviews and determines what work needs to be completed with Fullem and Camp. 8. The Upper Tyrone Township Supervisors appointed Killinger Assistant Township Secretary at its 2005 reorganization meeting. a. The Upper Tyrone Township Auditors set the salary of Killinger as the Assistant Secretary at their reorganization meeting on January 4, 2005, at $9.00 /hr. 1. Township Auditor Nancy Killinger abstained from voting. 9. In 2006 the Upper Tyrone Township Supervisors at their reorganization meeting appointed all three supervisors, including Killinger, as Assistant Township Secretaries. a. The Upper Tyrone Township Auditors set the salary of the supervisors working as the Assistant Secretary at their reorganization meeting on January 4, 2006, at $9.00 /hr. Klllinger, 05 -034 Page 4 1. Township Auditor Nancy Killinger abstained from voting. 10. Upper Tyrone Township utilizes Pennsylvania Department of Transportation timesheets to document specific days and total hours worked by the working supervisors and township employees. a. Descriptions noted on the timesheets represent work that was completed by the road crew. 1. The timesheets list Killinger as working on specific roads along with Fullem and Camp, but Killinger was not always present when the work was completed. b. The timesheets are normally filled out by Killinger listing the location, maintenance items, and hours worked for each employee. 1. The timesheets are usually only signed by Killinger. 11. Upper Tyrone Township utilizes a time clock and time cards to document hours worked by employees. a Supervisors working as roadmasters must utilize the time clock and time cards to document their hours worked. b The time cards are used on a bi- weekly basis with the employee's name listed at the top of the card along with the date of the first day of the week for the pay period. 12. Killinger's time cards and the time cards of the other township employees are utilized by the Secretary /Treasurer to process the payroll. 13. Killinger occasionally did not punch his time card but his hours worked were approved by Upper Tyrone Township Supervisor Charles Cook. a. Cook's initials on the time card signified Cook's approval of Killinger's hours. 14. As Chairman of the Board of Supervisors and roadmaster, Killinger was often viewed as the main contact for the township. a. Killinger often assisted the Township Secretary /Treasurer answering the phone, going to the post office, and going to the courthouse. b. Killinger was present at the township building more than the other supervisors. 15. Between 2004 and 2005 Killinger claimed hours and received wages as a township roadmaster for duties performed which were administrative and related to his position as township supervisor. a. These duties included administration, trips to the post office and the courthouse, meeting with the solicitor, EM Meeting, UCC Meeting, Unified Land Development Meeting, County Convention, and meetings for the Fayette County Zoning Hearing Board and Westmoreland — Fayette Municipal Sewage Authority. b. Killinger was not appointed by the Board of Supervisors to any EM, UCC, Unified Land Development Board or Committee, or any Zoning Hearing Klllinger, 05 -034 Page 5 Board or Municipal Authority. c. Killinger routinely made trips to the post office in Everson, Pennsylvania. d. Killinger's time cards as a township roadmaster reflected his attendance at various meetings he attended as a township supervisor. e. Upper Tyrone Township Solicitor bills confirm meetings with Killinger on issues related to Killinger's position as a township supervisor. f. Since 2006 Killinger has performed administrative functions such as trips to the post office and courthouse in his capacity as assistant township secretary. 16. In 2004 Killinger was compensated for 40.80 hours at his hourly roadmaster rate for performing duties associated with his position as an elected supervisor. 17. In 2005 Killinger was compensated at his roadmaster rate of $12.26 for performing duties which included these related to his position as Assistant Secretary. a. Killinger's approved compensation as Assistant Secretary was $9.00 /hour. 18. Killinger claimed and received roadmaster salary for 46.9 hours for duties related to his Assistant Secretary position. 19. Killinger was over compensated for Assistant Secretary duties in 2005 by $152.84 determined as follows: a. 2005 Assistant Secretary Hours Roadmaster Rate Asst. Sec. Rate 46.9 $12.26 $9.00 b. 46.9 hrs @ $3.26/hr = $152.84* *[sic]. [There is a $.05 error in the calculation, in favor of the Respondent. We accept the amount as stipulated by the parties.] 20. Killinger was compensated in 2005 at his roadmaster rate on the following dates for hours related to his position as township supervisor: Date Function Hours Hourly Rate 5/19/05 Zoning Hearing Board 2.0 $12.26 6/17/05 Meet w /Solicitor @ Courthouse 2.0 $12.26 7/12/05 Westmoreland- Fayette Sewer Meeting 1.50 $12.26 5.50 5.5 hrs @$12.26/hr = $67.43 21. Killinger received roadmaster wages totaling $708.23 from 2004 through 2005 for hours spent traveling to the post office and attending meetings, and being over compensated for Assistant Secretary functions. a. 2004 $487.96 (40.8 hrs @ $11.96/hr) b. 2005 $152.84* (46.9 hrs @ $3.26/hr) 2005 $ 67.43 (5.5 hrs @ $12.26/hr) c. Total $708.23 Klllinger, 05 -034 Page 6 *[sic]. [There is a $.05 error in the calculation, in favor of the Respondent. We accept the amount as stipulated by the parties.] 22. Payroll is issued to Upper Tyrone Township employees on a bi- weekly basis. a. Payroll is approved at regular monthly meetings. b. The motion to approve payroll is incorporated along with the motion to approve the monthly bills. 23. Voting at Upper Tyrone Township meetings occurs by a yes /no vote. a. Voting on ordinances and routine monthly issues such as the approval of minutes and monthly bills and payroll occurs in a group yes /no fashion. 1. Any abstentions or objections made during the group vote are specifically noted in the minutes. 24. 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 two of the supervisors. b. Signatures on township checks are live signatures. 25. Killinger 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. Killinger signed 204 checks issued to him in 2004 and voted to approve all 204 checks issued to him. b. Killinger signed, as township secretary, 189 checks issued to him in 2005 and voted to approve bill lists which included payments to him. 26. During a statement provided to a Commission Investigator on September 19, 2006, Killinger provided the following information: a. He was not made aware of the distinction in duties between a roadmaster and supervisor until being notified by the Ethics Commission from the letter dated October 24, 2005. 1. Killinger claimed since receiving the letter from the Ethics Commission, he had become more careful in the duties he performed as roadmaster. b. He admitted that as the roadmaster he picked up the mail from the post office, attended the Emergency Management and Uniform Construction Code meetings, and drove his wife to work during snow storms. The following findings relate to Killinger's failure to file a Statement of Financial Interests for 2002 calendar year by May 1, 2003. 27. As an Upper Tyrone Township Supervisor, Samuel Killinger was required to file a Statement of Financial Interests for calendar year 2002 by May 1, 2003. Killinger, 05 -034 Page 7 28. A Statement of Financial Interests (SFI) compliance review conducted by a State Ethics Commission Investigator on September 19, 2005, for Upper Tyrone Township confirmed the following SFI's on file for Killinger: Date Filed Calendar Year 02/21/2005 2004 02/18/2004 2003 29. No Statement of Financial Interests for Killinger for the 2002 calendar year was on file at the time the compliance review was completed. 30. Killinger filed a Statement of Financial Interests for the 2002 calendar year on November 16, 2006. 31. In 2002, Killinger received compensation as a township supervisor in the amount of $1,875.00 when he was not in compliance with the Statements of Financial Interests filing requirements. III. DISCUSSION: At all times relevant to this matter, Respondent Samuel D. Killinger (also referred to herein as "Respondent," "Respondent Killinger," or "Killinger ") has been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The allegations are that Killinger as a Supervisor for Upper Tyrone Township ( "Township "), Fayette County, violated Sections 1103(a), 1104(a) and 1104(d) of the Ethics Act: (1) when he used the authority of his office for a private pecuniary gain by claiming hours for compensation as Township Roadmasterwhich were related to his duties as Supervisor and when he subsequently participated in actions of the Township Board of Supervisors to approve and issue payments to him; and (2) when he failed to file a Statement of Financial Interests for the 2002 calendar year by May 1, 2003. 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: § 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). The Ethics Act defines the term "conflict" or "conflict of interest" 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 Klllinger, 05 -034 Page 8 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 provides 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 Act provides that no public official shall be allowed to take the oath of office, enter or continue upon his duties, or receive compensation from public funds unless he has filed a Statement of Financial Interests as required by the Ethics Act. 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. Killinger has served as a Township Supervisor and as Chairman of the Township Board of Supervisors ( "Board ") since January 2002. Killinger has held the position of Township Roadmaster since January 2003. Killinger was appointed Assistant Township Secretary in January 2005. The Board consists of three members. Supervisors currently receive $468.75 gross pay per quarter as payment for services in their supervisor capacity. The Board holds regular meetings once per month. Since 2004 all three Township Supervisors have been appointed roadmasters. From 2003 through 2006, the Township Board of Auditors approved rates for supervisors working as roadmasters as detailed in Finding 4. At the Board's 2005 reorganization meeting, the Board appointed Killinger Assistant Township Secretary. On January 4, 2005, theTownship Auditors set Killinger's salary as Assistant Secretary at $9.00 per hour. At the Board's 2006 reorganization meeting, the Board appointed all three supervisors, including Killinger, as Assistant Township Secretaries. On January 4, 2006, the Township Auditors set the salary of the supervisors working as Assistant Secretaries at $9.00 per hour. The Township utilizes Pennsylvania Department of Transportation timesheets, a time clock, and time cards to document hours worked by the working supervisors and Township employees. Killinger completes time sheets and utilizes a time clock and time cards to document his hours worked. Killinger's timesheets are usually only signed by Killinger. Killinger's time cards and the time cards of the other Township employees are utilized by the Township Secretary /Treasurer to process the payroll. The parties have stipulated that in 2004 and 2005, Killinger received wages totaling $708.23 for hours spent traveling to the post office and attending meetings, and being over Klllinger, 05 -034 Page 9 compensated for Assistant Secretary functions. See, Findings 16, 19, 20 -21. Specifically, in 2004, Killinger was compensated for 40.80 hours at the roadmaster rate of $11.96 per hour, for a total of $487.96, for duties associated with his position as an elected Township Supervisor. See, Findings 16, 21 a. Similarly, in 2005, Killinger was compensated for 5.5 hours at his roadmaster rate of $12.26 per hour, for a total of $67.43, for hours related to his position as Township Supervisor. See, Findings 20, 21 b. Additionally, the parties have stipulated that in 2005, Killinger was overcompensated in the amount of $152.84 when he was paid at the roadmaster rate of $12.26 per hour for 46.9 hours related to his Assistant Secretary position. See, Findings 19, 21 b. Payroll is approved at the Board's regular monthly meetings. The motion to approve payroll is incorporated with the motion to approve the monthly bills. The Township Secretary /Treasurer and all three supervisors are authorized to sign Township checks. The parties have stipulated that Killinger participated in actions as a Township Supervisor approving monthly payroll and signing payroll checks issued to himself for hours claimed as a roadmaster that were supervisory in nature. See, Finding 25. During a statement provided to a Commission Investigator on September 19, 2006, Killinger indicated that having been made aware of the distinction in duties between a roadmaster and supervisor as the result of a Commission letter dated October 24, 2005, he had become more careful in the duties he performed as roadmaster. A Commission investigator conducted a Statement of Financial Interests compliance review as to the Township on September 19, 2005. At that time, no Statement of Financial Interests was on file for Killinger for the 2002 calendar year. It would appear that as of November 16, 2006, Killinger has filed his Statement of Financial Interests for calendar year 2002. See, Finding 30. The parties have stipulated that in 2002, Killinger received compensation as a Township Supervisor in the amount of $1,875.00 when he was not in compliance with the Statement of Financial Interests filing requirements. 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 allegation 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 when Killinger claimed and participated in actions of the board of supervisors to approve compensation for duties related to his position as township supervisor; and b. That a violation of Section 1104(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1104(a) occurred in relation to Killinger's failure to file a Statement of Financial Interests for 2002 calendar year by May 1, 2003. 4. Killinger agrees to file a Statement of Financial Interests for the 2002 calendar year with Upper Tyrone Township and forward a copy of [sic] the State Ethics Commission for compliance purposes within thirty (30) days of the issuance of the final adjudication in this matter. Klllinger, 05 -034 Page 10 5. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. 6. Killinger agrees to waive his rights to an evidentiary hearing and appellate rights without prejudice to so proceed in the event that the State Ethics Commission does not accept this agreement. Consent Agreement, at 1 -2. In considering the Consent Agreement, it is clear that the elements for the recommended unintentional violation of Section 1103(a) have been established. There were uses of authority of office by Killinger, specifically as to his submission of claims for compensation as a roadmaster for duties performed as a Township Supervisor or Assistant Secretary. The parties have stipulated that Killinger also participated in actions as a Township Supervisor approving monthly payroll and signing payroll checks issued to himself for hours claimed as a roadmaster that were supervisory in nature. See, Finding 25. The aforesaid uses of Killinger's authority as a Township Supervisor resulted in a private pecuniary benefit to Killinger consisting of unauthorized compensation. The unauthorized compensation attributable to roadmaster pay for Supervisor duties totaled $555.39 for 2004 and 2005, while the unauthorized compensation attributable to over compensation for Assistant Secretary duties in 2005 was $152.84, for a combined total of $708.23. Based upon the Stipulated Findings, it would appear that Killinger did not intend to violate the Ethics Act in taking the above actions. Although intent is not a requisite element for a violation of the Ethics Act, Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Cmwlth. 1987), it is one of the factors that this Commission may consider in determining the proper disposition of a case. Accordingly, we hold that an unintentional violation of Section 1103(a) of the Ethics Act occurred when Killinger claimed and participated in actions of the Board to approve compensation for duties related to his position as Township Supervisor. As for the recommended finding of a violation of Section 1104(a) of the Ethics Act, we find that a clear violation of Section 1104(a) of the Ethics Act occurred in relation to Killinger's failure to file a Statement of Financial Interests for the 2002 calendar year by May 1, 2003. As part of the Consent Agreement, Killinger has agreed to file a Statement of Financial Interests for the 2002 calendar year with the Township and to forward a copy to this Commission for compliance purposes within thirty (30) days of the issuance of the final adjudication in this matter. It would appear that as of November 16, 2006, Killinger has filed his Statement of Financial Interests for calendar year 2002. See, Finding 30. However, to the extent Killinger has not already done so, he is directed to fulfill the terms of the Consent Agreement as to the filing of his Statement of Financial Interests for calendar year 2002. As for Section 1104(d) of the Ethics Act, it appears that the Investigative Division in the exercise of prosecutorial discretion has elected to non pros this allegation. 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 Killinger, 05 -034 Page 11 and the totality of the facts and circumstances. 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. Respondent Samuel D. Killinger ( "Killinger "), as a Supervisor for Upper Tyrone Township ( "Township ") in Fayette County from January 2002 to the present, has at all times relevant to this matter been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. 2. Killinger unintentionally violated Section 1103(a) of the Ethics Act when he claimed and participated in actions of the Township Board of Supervisors to approve compensation for duties related to his position as Township Supervisor. 3. Killinger violated Section 1104(a) of the Ethics Act in relation to his failure to file a Statement of Financial Interests for the 2002 calendar year by May 1, 2003. In Re: Samuel D. Killinger ORDER NO. 1426 File Docket: 05 -034 Date Decided: 1/8/07 Date Mailed: 1/23/07 1 Respondent Samuel D. Killinger ( "Killinger "), a public official in his capacity as a Supervisor for Upper Tyrone Township ( "Township ") in Fayette County from January 2002 to the present, unintentionally violated Section 1103(a) of the Ethics Act when he claimed and participated in actions of the Township Board of Supervisors to approve compensation for duties related to his position as Township Supervisor. 2. Killinger violated Section 1104(a) of the Ethics Act in relation to his failure to file a Statement of Financial Interests for the 2002 calendar year by May 1, 2003. 3. Per the Consent Agreement of the parties, to the extent he has not already done so, Killinger is directed to file a Statement of Financial Interests for the 2002 calendar year with the Township and to forward a copy to this Commission for compliance purposes 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