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HomeMy WebLinkAbout1437 OttovianiIn Re: Danielle Ottoviani, 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 06 -031 Order No.1437 3/27/07 4/11/07 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 and a hearing was deemed waived. All of the averments in the Investigative Complaint are admitted and are quoted as the following Findings. The record is complete. 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. Ottoviani, 06 -031 Page 2 I. ALLEGATIONS: That Danielle Ottoviani, a (public official /public employee) in her capacity as Council Member for Centerville Borough, Washington County, violated the following provisions of the State Ethics Act (Act 93 of 1998) when she used the authority of her public position as a member of council to participate in approving payments to firms who employed her which included, in part, compensation paid to her; when she submitted hours for payment to the borough engineer for services rendered in making edits to the borough zoning ordinance without council approval; and when she failed to disclose sources of income and her office, directorship, or employment on Statements of Financial Interests filed for calendar years 2004 and 2005. § 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). § 1105. Statement of Financial Interests (b) Required information. —The statement shall include the following information for the prior calendar year with regard to the person required to file the statement: (8) Any office, directorship or employment of any nature whatsoever in any business entity. 65 Pa.C.S. § 1105(b). § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. II. FINDINGS: 1. The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Danielle Ottoviani violated provisions of the State Ethics Act (Act 93 of 1998). 2. Upon review of the complaint the Investigative Division initiated a preliminary Ottoviani, 06 -031 Page 3 inquiry on May 5, 2006. 3. The preliminary inquiry was completed within sixty days. 4. On June 28, 2006, a letter was forwarded to Danielle Ottoviani, by the Investigative Division of the State Ethics Commission, informing her that a complaint against her was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, no. 7004 2890 0004 1229 2950. b. The domestic return receipt bore the signature of Danielle Ottoviani, with a delivery date of June 30, 2006. 5. On November 16, 2006, an amended Notice of Investigation was forwarded to Danielle Ottoviani by the Investigative Division of the State Ethics Commission, informing her that the allegations contained in the June 28, 2006, Notice of Investigation were being amended. a. Said letter was forwarded by certified mail, no. 7006 2150 0000 8776 4292. b. The domestic return receipt bore the signature of November 20, 2006, with a delivery date of Danielle Ottoviani [sic]. 6. Periodic notice letters were forwarded to Danielle Ottoviani in accordance with the provisions of the Ethics Law advising her of the general status of the investigation. 7 The Investigative Complaint was mailed to the Respondent on December 14, 2006. 8. Danielle Ottoviani has served as a Council Member for Centerville Borough, Washington County, since January 5, 2004. a. Ottoviani has held no specific office during her tenure on the board. b. Ottoviani has served on various borough committees during her tenure including the Parks and Recreation Committee, the Personnel Committee and the Comprehensive Plan Committee. 9. Centerville Borough is governed by a seven - member council and mayor. a. Centerville Borough holds one legislative meeting each month on the second Tuesday of the month b. Occasional special meetings are held as necessary. c. Council members receive $156.25 (gross) monthly ($1,875 annually) as payment for their service. d. Council members need not be present at monthly meetings to receive the monthly stipend. 10. Voting at Centerville Borough meetings occurs primarily in group "aye /nay" fashion. a. Roll call votes are, at times, conducted for important issues or issues concerning the spending of large amounts of borough funds. b. Any abstentions or objections which occur are specifically noted in the Ottoviani, 06 -031 Page 4 minutes. c. All members of council, including council president, vote on motions on the floor. 1. The mayor votes only in the case of a tie -vote. 11. Comprehensive Plans are routinely developed by governmental bodies in an effort to plan for future development in their respective geographic locations. a. Comprehensive plans can be developed at the municipal, multi - municipal, or county level. 12. Guidelines for the development /preparation of a comprehensive plan at the municipal, multi - municipal, or county level are set forth in the Pennsylvania Municipalities Planning Code (Act of 1968, P.L. 805, No. 247) in Article III, Section 301 and mandates, in part, the following: a. Municipal, multi - municipal, or county comprehensive plans, consisting of maps, charts, and textual matter, are to include, but need not be limited to, the following related basic elements: 1. Statement of objectives of the municipality concerning its future development, including, but not limited to, the location, character, and timing of future development, that may also serve as a statement of community development objectives. 2. The plan for land use, which may include provisions for the amount, intensity, character, and timing of land use proposed for residents, industry, business, agriculture, major traffic and transit facilities, utilities, community facilities, public grounds, parks and recreation, preservation of prime agricultural lands, flood planes, and other areas of special hazard and other similar uses. aa. A plan to meet the housing needs of present residents and of those individuals and families anticipated to reside in the municipality, which may include conservation of presently sound housing, rehabilitation of housing in declining neighborhoods, and the accommodation of expected new housing in different dwelling types and at appropriate entities for households of all income levels. 3. A plan for movement of people and goods, which may include expressways, highways, local street systems, parking facilities, pedestrian and bikeway systems, public transit routes, terminals, airfields, port facilities, railroad facilities, and other similar facilities or uses. 4. A plan for community facilities and utilities, which may include public and private education, recreation, municipal buildings, fire and police stations, libraries, hospitals, water supply and distribution, sewage and waste treatment, solid waste management, storm drainage and flood plane management, utility corridors and associated facilities and other similar facilities or uses. aa. A statement of the inter - relationships among the various planning components which may include an estimate of the Ottoviani, 06 -031 Page 5 environmental, energy conservation, fiscal, economic development, and social consequences on the municipality. bb. A discussion of short and long range plan implementation strategies which may include implications for capital improvement programming, new or updated development regulations, and identification of public funds potentially available. 5. A statement indicating that the existing and proposed development of the municipality is compatible with the existing and proposed development and plans in contiguous municipalities or a statement indicating measures which have been taken to provide buffers for other transitional devices between disparate uses, and a statement indicating that the existing and proposed development of the municipality is generally consistent with the objectives and plans of the County Comprehensive Plan. 6. A plan for the protection of natural and historic resources to the extent not pre - empted by federal or state law (this clause includes, but is not limited to: wet lands and aquifer recharge zones, woodlands, steep slopes, defined agricultural land, flood planes, unique natural areas and historic sites). 7 Additionally, a County Comprehensive Plan shall: aa. Identify land uses as they relate to important natural resources and appropriate utilization of existing minerals. bb. Identify current and proposed land uses which had a regional impact and significance such as large shopping centers, major industrial parks, mines and related activities, office parks, storage facilities, large residential developments, regional entertainment and recreational complexes, hospitals, airports, and port facilities. cc. Identify a plan for the preservation and enhancement of prime agricultural land and encourage the compatibility of land use regulation with existing agricultural options. dd. Identify a plan for historic preservation. b. The comprehensive plan is also to include a plan for the reliable supply of water, considering current and future water resources availability, uses and limitations, including provisions adequate to protect water supply sources, must be generally consistent with the State Water Plan and any applicable water resources plan adopted by a river basin; and contain a statement that: 1. Lawful activities such as extraction of minerals impact water supply sources and such activities are governed by statutes regulating mineral extraction that specify replacement and restoration of water supplies affected by such activities. 2. Commercial agriculture production impact[s] water supply sources. c. The municipal or multi - municipal comprehensive plan shall be reviewed at least every ten years. Ottoviani, 06 -031 Page 6 d. The municipal, multi - municipal, or county comprehensive plan may identify those areas where growth and development will occur so that a full range of public infrastructure, including sewer, water, highways, police and fire protection, public schools, parks, open space and other services can be adequately planned and provided as needed to accommodate growth. 13. At the January 14, 1997, regular council meeting, Zoning Hearing Board Chairman Robert Thornburg presented a draft Zoning Ordinance to council and discussed the necessary steps for approval. a. Thornburg subsequently requested at the meeting that council look into a comprehensive plan to go hand in hand with the ordinance. b. Zoning Ordinances are routinely updated after the adoption of a new or updated comprehensive plan. 14. Council was receptive to the suggestion of updating the borough's existing /adopting a new comprehensive plan. a. The borough's existing comprehensive plan was approximately thirty years old 15. The borough subsequently contacted Richard C. Sutter & Associates (hereafter Sutter & Associates) in mid to late January 1997 concerning the preparation of a comprehensive plan. a. The borough contacted Sutter & Associates due to a recommendation provided by Dennis Makel, borough solicitor at that time. 1. Makel was also the solicitor for a separate municipality that was utilizing Sutter & Associates at that time. 16. Sutter and Associates representatives presented the benefits of a comprehensive plan to council at the May 13, 1997, regular meeting. a. Council approved a motion directing Sutter & Associates to investigate possible funding for a comprehensive plan at the May 13, 1997, meeting. 17. As inquiry into the possible development of a comprehensive plan progressed, it was determined that a regional comprehensive plan would be pursued for four municipalities in the Southeastern Washington County Region. a. Fred Drovdlic of Sutter & Associates had advised council that the possibility of receiving grant funds for comprehensive plan development increased when boroughs and townships join together and apply for the funds on a regional basis. b. The four municipalities eventually involved were Centerville Borough, Deemston Borough, Beallsville Borough, and West Pike Run Township. 18. A major determining factor for the municipalities involved in the decision to develop a regional comprehensive plan was the availability of State Planning Assistance Grants. a. State Planning Assistance Grants were available through the Pennsylvania Department of Community and Economic Development (DCED) for up to Ottoviani, 06 -031 Page 7 one -half of the cost of regional comprehensive plans. b. The projected cost of the regional comprehensive plan for the municipalities involved, known as the Southeastern Washington County Region, was $25,000.00. 19. At the August 24, 1998, rescheduled meeting of Centerville Borough Council, a presentation was made regarding the regional comprehensive plan, its feasibility to adopt, and the Borough's expected contribution amount. a. A motion was unanimously approved authorizing Sutter & Associates to make an application to the Commonwealth of Pennsylvania for grant funds to offset the cost of a comprehensive plan for the region. b. Ottoviani was not on council at this time. 20. Centerville Borough submitted the Southeastern Washington County Region application for a State Planning Assistance Grant and /or Shared Services Grant to DCED's Strategic Planning and Operations Office on or about August 25, 1998. a. Centerville Borough submitted the application on behalf of all municipalities included in the Southeastern Washington County Region. 21. Centerville Borough received correspondence from Sara M. Sendelbach, Chief, Division of Management Support, DCED, dated January 7, 1999, in relation to the Borough's State Planning Assistance Grant contract. a. The contract number assigned for the project was 98- 189 -0009. b. The contract documented the allocation of $12,500.00 in grant funds. 22. At the March 16, 1999, regular borough meeting, council voted to approve Resolution 03 -99 in association with the regional comprehensive plan. a. The Resolution documented the borough's desire to enter into a contract with Sutter & Associates for the purpose of drafting and preparing a regional comprehensive plan encompassing Centerville, Deemston, and Beallsville Boroughs and West Pike Run Township. b. The Resolution also documented the Borough's receipt of a $12,500.00 State Planning Assistance Grant and the total plan cost of $25,000.00 23. Attached to the Resolution as Exhibit "A" was a table documenting local contributions required from each municipality regarding development of the plan. a. The contribution amount required from each municipality was based on each municipality's population percentage for the region. 24. The contract with Sutter & Associates for development of the regional comprehensive plan was signed on March 16, 1999. a. The contract specified that the length of time for development of the plan would be twenty -four months from the date of the contract unless a change in time was mutually agreed upon by written change order. b. Edward Sukal, Borough President, and Barbara Freeman, Borough Secretary /Treasurer, signed the contract on behalf of the Borough. Ottoviani, 06 -031 Page 8 c. Richard Sutter, President - Sutter & Associates, signed the contract on behalf of Sutter & Associates. 25. Centerville Borough returned the contract to DCED's Division of Management Support during or about mid -April 1999. a. Sukal and Freeman signed the contract on April 13, 1999, on behalf of the Borough. b. Applicable DCED representatives signed the contract on April 21, 1999, and April 29, 1999. 26. The municipalities involved in the project formed a committee to assist Sutter & Associates with the comprehensive plan. a. Sukal and Bailey were named as representatives for Centerville Borough. 27. From late 2000 through April 2003 borough minutes and records (i.e. correspondence, e-mail, etc.) document difficulties encountered with Sutter & Associates regarding the regional comprehensive plan. a. Difficulties encountered included lack of work product submitted to the borough, untimely submission of available work product, and poor work product. 28. Centerville Borough subsequently terminated its contract with Sutter & Associates at the May 13, 2003, regular council meeting due to the difficulties encountered. a. The vote to terminate Sutter & Associates was unanimous. b. Centerville Borough Solicitor, Dennis Makel, notified Sutter & Associates of the termination via correspondence dated July 10, 2003. 29. Although Council opted to terminate Sutter & Associates, Council remained interested in the completion of the comprehensive plan. a. The Borough was interested in utilizing portions of the plan developed by Sutter & Associates that could be salvaged and having a different individual /company complete the plan. 1. The continued development was for an independent comprehensive plan solely for the borough and not a regional plan. b. Council requested a reference from Nichols & Slagle, Borough Engineer at that time, regarding an individual /company to complete the plan. 1. Greg Scott served as the Nichols & Slagle representative for the borough at that time. 30. Scott recommended Robert Kipp to Council regarding completion of the comprehensive plan. a. Kipp is the owner /operator of R. Kipp & Associates Municipal Planning Consultants. Ottoviani, 06 -031 Page 9 1. Kipp operates his consulting business from his residence. b. Scott was familiar with Kipp through a professional relationship. 1. Kipp was the Manager of the North Strabane Municipal Authority at that time. 2. Nichols & Slagle was the North Strabane Township Municipal Authority Engineer at that time. 31. Council Member Susie Zebley and Sukal subsequently met with Kipp at the borough building regarding the borough's comprehensive plan. a. The plan prepared by Sutter & Associates was presented to Kipp for review. b. Kipp indicated that he could revise and complete the plan submitted by Sutter & Associates for approximately $4,000.00 to $6,000.00. 32. Kipp submitted a written proposal to the Borough on or about July 30, 2003, noting his company's qualifications, previous experience, and a summary of information to be addressed in the comprehensive plan. a. Kipp's proposal indicated an approximate cost of $10,000.00. 33. At the September 16, 2003, continuation meeting, the Borough voted 5 -1 to accept Kipp's proposal to complete the comprehensive plan with a twelve to fifteen month time line. a. The September 16, 2003, meeting was a continuation of the Borough's September 9, 2003, regular meeting. b. Minutes of the meeting incorrectly note the cost of Kipp's services at $1,000.00. c. Council member Barbara Samarin cast the sole dissenting vote. 34. Council verified its acceptance of Kipp's proposal for completion of the comprehensive plan in the amount of $10,000.00 via correspondence to Kipp dated November 5, 2003. a. Council members Zebley, Frederick Roberts, and resident George Hagedorn were subsequently named as formal points of contact (aka the comprehensive plan committee) for Kipp regarding the project. 35. Ottoviani was appointed to the comprehensive plan committee at the May 25, 2004, continuation meeting of council. a. The May 25, 2004, meeting was a continuation of the Borough's May 11, 2004, regular meeting. b. Ottoviani was appointed to the committee to replace Hagedorn. 1. Hagedorn was removed from the committee at the meeting due to the fact that he was not a member of council and was not covered by the borough's errors and omissions insurance. c. Zebley was appointed as Chair of the committee at the meeting. Ottoviani, 06 -031 Page 10 d. Solicitor Brian Teslovich also requested to be on the committee at the May 25, 2004, meeting. 36. Ottoviani was appointed to the comprehensive plan committee primarily due to her educational background. a. Ottoviani holds a Bachelor's Degree in Parks and Recreational Management and a Master's Degree in Geography and Regional Planning. 1. Ottoviani graduated with her Master's Degree in May 2004. 37. In late May /early June 2004, members of the comprehensive plan committee as well as other borough representatives met with Kipp at the borough building to discuss the plan. a. Ottoviani, Zebley, Teslovich, and council member Louis Gajweski attended the meeting. b. Ottoviani had never met Kipp prior to the meeting. 38. After the conclusion of the meeting, Ottoviani and Kipp continued discussing the comprehensive plan and planning in general. a. Ottoviani informed Kipp that she had recently graduated with her Master's Degree in Geography and Regional Planning. b. Kipp questioned Ottoviani if she would be interested in the opportunity to work for him. 1. Ottoviani was not actively seeking employment at that time. 2. Ottoviani was in the process of applying to West Virginia University to pursue a Doctorate Degree. 39. Ottoviani contacted Kipp via telephone a short time later and expressed her interest in employment with Kipp's company. a. Ottoviani and Kipp arranged a meeting at the borough building regarding Ottoviani's employment. b. Ottoviani expected to interview for a position with Kipp's company at the meeting. 40. When Kipp arrived at the borough building, Ottoviani discovered that she had already been hired into the position. a. Kipp arrived at the borough building with a workload for Ottoviani to begin. b. Ottoviani was never formally interviewed for the position. 41. Ottoviani worked full time as an independent contractor for R. Kipp & Associates Municipal Planning Consultants beginning in or about June 2004. a. Ottoviani worked from her home in her position with R. Kipp & Associates Municipal Planning Consultants. Date Description Hours Rate /Hour Total 02/05/04 Chapters: Existing History and Cultural Resources, Census & 10.0 $50.00 $500.00 Ottoviani, 06 -031 Page 11 1. Ottoviani received her work assignments from Kipp via telephone, e- mail, or face -to -face meetings. b. Ottoviani was initially hired in June 2004 at the rate of $15.00 per hour plus mileage. c. Ottoviani's wage increased to $16.00 per hour plus mileage in January 2005. 42. Work performed by Ottoviani included revisions, edits, survey completion, chart development, research, meeting attendance, etc. a. Ottoviani performed these types of services for a variety of Kipp's clients, including Centerville Borough. b. Ottoviani's work for the borough through Kipp's company was limited to services provided for the comprehensive plan. 43. Ottoviani routinely submitted timesheets to Kipp regarding hours worked on various projects. a. Timesheets submitted noted the date worked, the name of the municipality that services performed related to, and the total number of hours claimed per day. b. Various timesheets noted services performed for two municipal projects on the same day. 1. Specific hours worked on each individual project were not identified on timesheets submitted. 2. Applicable timesheets noted only the total hours worked per day. 44. The draft comprehensive plan developed for the borough was primarily complete when Ottoviani began employment with Kipp. a. Services performed by Ottoviani regarding the borough comprehensive plan included revisions, grammar and punctuation correction, and insertion of missing information (i.e. business research, church research, etc.). b. Ottoviani also distributed the draft comprehensive plan to council, surrounding municipalities, the local school district, and county for review. 45. Although Zebley was the Chair of the Comprehensive Plan Committee, Ottoviani routinely presented information and updates at council meetings regarding progress on the comprehensive plan. a. Ottoviani presented the information as a result of having first hand information on the progress of the plan through her employment with Kipp. 46. Between the months of February 2004 through January 2005, Kipp submitted eight invoices totaling $9,000.00 to the borough representative of services performed on the borough comprehensive plan as shown below: Date Description Hours Rate /Hour Total Demographics, Community Facilities, Public Utilities, Transportation, and Land Use. 03/04/04 Chapters: Existing History and Cultural Resources, Census & Demographics, Community Facilities, Public Utilities, Transportation, and Land Use. 10.0 $50.00 $500.00 04/14/04 Chapters: Draft of Background Studies (90 %) Complete & Mapping 10.0 $50.00 $500.00 06/17/04 Chapters: Draft of Background Studies Complete & Mapping 20.0 $50.00 $1,000.00 07/15/04 Chapters: Draft of Background Studies Complete & Mapping, Attend Workshop w/ Steering Committee & Ready to Have Another in Mid August 20.0 $50.00 $1,000.00 09/07/2004 Chapters: Draft of Background Studies Complete & Mapping, Attend Workshop w/ Steering Committee & Ready to Have Another in Mid August 25.0 $50.0 $1,500.00 10/25/04 Chapters: Draft of Background Studies Complete & Mapping, Attend Workshop w/ Steering Committee & Ready to Have Another in Mid August 40.0 $50.00 $2,000.00 01/06/05 Chapters: Draft of Background Studies Complete & Mapping, Attend Workshop w/ Steering Committee & Ready to Have Another in Mid February 40 $50.00 $2,000.00 Total $9,000.00 Ottoviani, 06 -031 Page 12 a. Ottoviani was actively employed by Kipp during the time frame from June 17, 2004, to January 2005, that the above - listed invoices were approved by council at monthly meetings. Meeting Date Check Number Check Amount Ottoviani Present Ottoviani's Vote Final Vote Ottoviani Employed With Kipp 02/10/04 3564 $500.00 Yes Yes Unanimous Yes 04/13/04 3619 $500.00 Yes Yes Unanimous Yes 05/11/04 3642 $500.00 Yes Yes Unanimous Yes 07/13/04 3708 $1,000.00 Yes Yes 5 -1 Yes 08/10/04 3731 $1,000.00 Yes Yes Unanimous Yes 09/14/04 3759 $1,500.00 Yes Yes Unanimous Yes 11/09/04 3829 $2,000.00 Yes Yes Unanimous Yes 02/08/05 3930 $2,000.00 Yes Yes Unanimous Yes Total $9,000.00 Check Date Check Number Check Amount Check Disposition 02/10/04 03564 $500.00 Citizens Bank 04/13/04 03619 500.00 West View Savings Bank 05/11/04 03642 500.00 West View Savings Bank Ottoviani, 06 -031 Page 13 b. Invoices submitted by Kipp included work completed by Ottoviani for which she submitted timesheets to Kipp. 47. Timesheets submitted by Ottoviani documented a minimum of one hundred two hours claimed on work for Centerville Borough resulting in Ottoviani's receipt of $1,530.00 in wages from Kipp. a. Ottoviani's only work for Kipp relating to Centerville Borough was associated with the development of the Comprehensive Plan. b. One timesheet documenting 16 hours worked on the Comprehensive Plan could not be positively matched to any checks received. 48. Checks issued to Kipp by the borough for services provided in 2004 and 2005, and Ottoviani's actions in approving bill lists on which the payments were documented are shown below: a. Minutes for the above - referenced meetings document no abstentions by Ottoviani in association with the approval of the monthly bills after her hiring by Kipp in June 2004. b. Ottoviani voted to approve bill lists on which payment to Kipp & Associates was documented on five separate occasions while employed by Kipp. 49. Checks received by Kipp from the borough were either cashed or deposited into accounts maintained at Citizens Bank (Account No. 6102052586) or West View Savings Bank (Account No. 625001128) as shown below: Check Number Check Date Payee Amount 03708 1,000.00 Memo 08/10/04 410 06/30/04 Ottoviani $605.00 - 420 07/15/04 Ottoviani 832.00 - 424 07/19/04 Ottoviani 146.80 - 430 08/03/04 Ottoviani 792.73 - 452 08/15/04 Ottoviani 1,151.45 - 469 09/01/04 Ottoviani 1,237.50 - 475 09/15/04 Ottoviani 1,200.00 - 499 10/05/04 Ottoviani 1,200.00 658156371 509 10/15/04 Ottoviani 1,200.00 - 512 10/15/04 Ottoviani 17.63 Expenses 527 11/01/04 Ottoviani 1,550.00 - 535 11/11/04 Ottoviani 1,200.00 - 573 12/08/04 Ottoviani 146.25 - 581 12/15/04 Ottoviani 1,248.75 - 584 12/22/04 Ottoviani 1,200.00 - 594 01/20/05 Ottoviani 28.50 - 596 01/20/05 Ottoviani 1,280.00 - 598 02/15/05 Ottoviani 1,280.00 Wages Check Date Check Number Check Amount Check Disposition 07/13/04 03708 1,000.00 Cashed Out 08/10/04 03731 1,000.00 West View Savings Bank 09/14/04 03759 1,500.00 Cashed Out 11/09/04 03829 2,000.00 West View Savings Bank 02/08/05 03930 2,000.00 West View Savings Bank 06/15/06 04383 1,000.00 West View Savings Bank Total $10,000.00 Ottoviani, 06 -031 Page 14 a. Kipp's account at Citizen's Bank is a personal account. b. Kipp's account at West View Savings Bank is a business account. 50. Ottoviani did not publicly disclose her employment /association with Kipp and Associates prior to voting to approve bill lists on which payment to Kipp & Associates was documented. a. Ottoviani informed the majority of council of her employment with Kipp & Associates in general conversation shortly after she was hired. b. Ottoviani's employment with Kipp & Associates was common knowledge among council members. 1. Ottoviani's employment with Kipp was occasionally mentioned during public meetings where the comprehensive plan was discussed. 51. From June 2004 through April 2005, Ottoviani received at least thirty checks from Kipp via Kipp's business account at West View Savings Bank totaling $23,740.74 in wages and mileage /expense reimbursement as shown below: Check Number Check Date Payee Amount Memo 603 01/04/05 Ottoviani 1,200.00 - 605 02/01/05 Ottoviani 1,280.00 - 606 02/01/05 Ottoviani 118.50 Miles 624 03/01/05 Ottoviani 45.00 Miles 638 03/15/05 Ottoviani 1,280.00 - 639 03/15/05 Ottoviani 219.51 Miles 640 03/15/05 Ottoviani 1,280.00 - 657 04/01/05 Ottoviani 254.55 - 658 04/01/05 Ottoviani 145.80 Miles 678 04/15/05 Ottoviani 155.16 Miles 679 04/15/05 Ottoviani 75.61 - 680 04/15/05 Ottoviani 1,370.00 - Total $23,740.74 Ottoviani, 06 -031 Page 15 a. Checks issued represent wages earned, reimbursements issued, or a combination of both. b. Ottoviani's signature appears on the reverse of each check issued. 52. Ottoviani resigned her employment with Kipp's company effective the last week of April 2005. a. Ottoviani resigned as a result of personal issues as well as concerns she had regarding how Kipp was representing his company, the direction the company was going, etc. 1. After resigning, Ottoviani provided planning services for municipalities under the name, "Creative Planning by Danielle." b. Ottoviani's resignation occurred prior to a public hearing being held by council regarding the plan. 53. At the June 14, 2005, regular council meeting, Teslovich recommended the borough move forward with the procedure for adoption of the comprehensive plan by advertising the required public meeting. a. The public meeting was scheduled for July 6, 2005. b. The motion to advertise the meeting passed unanimously. 1. Ottoviani was present at the June 14, 2005, meeting. 54. Additionally discussed at the June 14, 2005, meeting was the new borough zoning ordinance. a. Council approved Greg Scott, of Nichols & Slagle, to review the new zoning ordinance as it compared to the comprehensive plan. b. The motion to utilize Scott for the review passed unanimously with Ottoviani seconding the motion. 55. Scott indicated at the June 14, 2005, meeting that he could work with Ottoviani on the zoning ordinance. Date Service Description Hours Rate Per Hour Amount 06/20/05 Edits to Zoning Ordinance, Office 5 $26.00 $130.00 06/23/05 Edits to Zoning Ordinance, Office 5 $26.00 $130.00 08/17/05 Edits /Maps to the Zoning Ordinance, NSE Office 5 $26.00 $130.00 09/09/05 Edits to Zoning Map 2 $26.00 $52.00 Total $442.00 Ottoviani, 06 -031 Page 16 a. Ottoviani agreed to assist Scott with edits to the zoning ordinance and zoning map. b. Council took no official vote authorizing Ottoviani to assist Scott with the zoning edits or to submit hours worked on the edits to Nichols & Slagle for payment. 56. Ottoviani submitted Invoice No. 0002, dated September 13, 2005, in the name of Creative Planning by Danielle to Nichols & Slagle Engineering for services performed in association with the borough zoning ordinance as shown below: a. Ottoviani submitted the invoice under Scott's direction. b. The invoice notes, "PLEASE MAKE CHECKS PAYABLE TO: Danielle P. Ottoviani" in the lower left hand corner. 57. Present on the invoice was a note from Scott to Donna Slagle, Nichols & Slagle Bookkeeper, which stated: "Centerville Boro. Council authorized us to update zoning ordinance. They also wanted us to work w /Danielle Ottoviani to do so. I told her to invoice us for hours. P232 -013" a. Scott incorrectly identified the Project Number on the note as P232 -013. 1. P232 -013 was the Nichols & Slagle Project Number assigned regarding engineering services performed for the comprehensive plan. b. The Project Number assigned for updates on the borough zoning ordinance was P232 -020. 58. Nichols & Slagle subsequently prepared and issued Invoice Number 890 -05, dated September 30, 2005, in the amount of $1,903.70 to the borough for services provided relative to the zoning ordinance. a. Noted on the invoice was "Planner Services" in the amount of $486.20. b. Nichols & Slagle invoiced the borough a ten percent up charge in relation to payment issued to Ottoviani as shown below: 1. $442.00 x 10% = $44.20 2. $442.00 + $44.20 = $486.20 Ottoviani, 06 -031 Page 17 59. Ottoviani was issued Nichols & Slagle check number 13868, dated October 10, 2005, in the amount of $442.00 for services rendered in relation to edits on the borough zoning ordinance. a. The memo section of the check documents, " #0002 /Centerville Zoning Ord." b. Ottoviani's signature is present on the reverse of the check. 60. Centerville Borough issued General Fund check number 04147, dated October26, 2005, in the total amount of $4,077.39 to Nichols & Slagle for three separate invoices received. a. Included in the total payment was payment for Invoice No. 890 -05 in the amount of $1,903.70. 61. Check number 04147 was approved for issuance after the fact at the November 15, 2005, regular meeting of borough council. a. Minutes note the motion to approve invoices due for payment, invoices paid since the last meeting, and October 2005 payroll passing unanimously with no abstentions noted. b. Ottoviani was absent from the meeting. 62. A public meeting was scheduled at the borough building on July 6, 2005, regarding the proposed comprehensive plan. a. The purpose of the meeting was to discuss any comments or questions presented by surrounding municipalities, the school district, the county, or borough residents regarding the comprehensive plan. b. No minutes exist of the July 6, 2005, meeting. 63. Concerns presented by borough residents at the public meeting and subsequent council meetings primarily involved possible future zoning classifications within the borough as listed on the land use map present with the plan. a. The land use map presented with the plan had not been updated. b. Additional concerns identified by council primarily involved typographical and grammatical issues. 64. Progress regarding the production of the final draft of the comprehensive plan and ultimate adoption of the plan lagged after the public hearing of July 6, 2005. a. Kipp claimed council did not provide him with the desired changes and necessary corrections for the plan. b. Council claimed that Kipp would not make himself available to council to address the required amendments. 65. Due to the communication difficulties, the relationship between the borough and Kipp continued to deteriorate and completion of the comprehensive plan languished through the remainder of 2005 and into 2006. a. Correspondence dated March 30, 2006, from Teslovich to Attorney Michael Ottoviani, 06 -031 Page 18 Witheral, Kipp's legal representative, proposed resolving the matter via a mutual release agreement. 1. Per the release Kipp would be paid the final $1,000.00 in fulfillment of the approved contract; Kipp would release the borough from any future obligations pursuant to the contract and /or any liabilities; Kipp would release all data and supporting materials relative to the comprehensive plan that he or others had prepared; and the borough would release Kipp from any future obligations pursuant to the contract and /or any other liabilities. 66. The mutual release was signed on June 15, 2006, by Kipp, Bailey, and Witheral as a witness. a. The final $1,000.00 payment was issued to Kipp on or about June 15, 2006, via General Fund check number 04383. 1. Ottoviani was no longer employed with Kipp at this time. 67. Kipp filed federal income tax returns for calendar years 2004 and 2005. a. Included in Kipp's income tax returns were Schedule C (Form 1040), Profit or Loss From Business reports regarding Kipp's self - employment through Kipp & Associates. 68. Kipp realized profit percentages from gross profit reported for years 2004 and 2005 as shown below: Year Gross Net Profit Profit 2004 $36,980.00 $4,013.00 10.9% 2005 $29,950.00 -$15,895.00 N/A Profit Percentage From Gross Profit a. The specific profit percentage generated for calendar year 2005 is not applicable as Kipp's business operated at a loss for that year. 69. Kipp & Associates, a business with which Ottoviani was associated, realized approximate profits totaling $778.00 from June 2004 through April 2005 (the period of time that Ottoviani was employed) as a result of payments issued by the borough for development of the comprehensive plan as shown below: Year Gross Payment Profit From Realized Township 2004 $5,500.00 $560.00 2005 $2,000.00 $218.00 Total $7,500.00 $778.00 Note: All figures rounded to nearest dollar a. The 2004 profit percentage of 10.9 percent was applied to all funds received by Kipp & Associates from the borough. 70. Ottoviani realized a financial gain of $442.00 as a result of sub - contracting with Nichols & Slagle, the borough engineer, to provide services regarding the editing of Ottoviani, 06 -031 Page 19 the borough zoning ordinance at a time when Ottoviani was serving as a member of borough council. a. Ottoviani submitted an invoice for payment to Nichols & Slagle for time utilized on zoning ordinance edits without the approval of borough council. 71. Ottoviani realized a total financial gain of $1,972.00 ($1,530.00 + $442.00) as a result of Ottoviani's actions as a member of council in voting to approve payments to Kipp & Associates at a time when Ottoviani was employed with and receiving payment from the company; and when Ottoviani submitted an invoice to the borough engineer for payment for services rendered without the approval of council as shown below: Description Amount Payment from Kipp & Associates: Centerville Borough Comprehensive Plan $1,530.00 Invoice to Nicholas & Slagle 442.00 Total $1,972.00 THE FOLLOWING FINDINGS RELATE TO OTTOVIANI'S FAILURE TO DISCLOSE INCOME IN EXCESS OF $1,300.00 AND FAILURE TO DISCLOSE HER EMPLOYMENT ON STATEMENTS OF FINANCIAL INTERESTS FILED FOR CALENDAR YEARS 2004 AND 2005 72. Statement of Financial Interests filing requirements for public officials and public employees are mandated by Section 1104 of the State Ethics Act. a. Ottoviani is required to file Statements of Financial Interests by May 1St annually in her position as a council member for Centerville Borough. 73. Information required to be reported on Statements of Financial Interests is set forth under Section 1105 of the State Ethics Act. a. Required disclosures on Statements of Financial Interests include the name and address of any direct or indirect sources of income totaling $1,300.00 or more; and identification of any office, directorship, or employment of any nature whatsoever in any business entity. 74. Ottoviani received income from Centerville Borough and R. Kipp & Associates in calendar years 2004 and 2005. a. Ottoviani was issued IRS Forms W -2 from Centerville Borough in the amount of $1,718.75 and $2,031.25 for earnings in calendar years 2004 and 2005 respectively. b. Ottoviani received wages from Kipp & Associates totaling $13,728.11 and $10,012.63 for earnings in calendar years 2004 and 2005 respectively. 75. Ottoviani filed Statements of Financial Interests on January 11, 2005, and January 9, 2006, for calendar years 2004 and 2005 [respectively]. a. Ottoviani did not disclose information regarding income received from Centerville Borough or Kipp & Associates or her office, directorship, or employment with Kipp & Associates on her Statements of Financial Interests filed for calendar years 2004 and 2005. b. Direct or indirect sources of income and office, directorship, or employment in any business were both documented as "none" on Statements of Financial Interests filed for calendar years 2004 and 2005. Ottoviani, 06 -031 Page 20 76. In a sworn statement provided to Commission investigators on September26, 2006, Ottoviani stated the following: a. Kipp presented the possibility of employment to Ottoviani. 1. Ottoviani did not solicit employment from Kipp. b. Ottoviani was informed by members of council of the need to abstain from any voting regarding the comprehensive plan. 1. Ottoviani understood this to mean that she could not vote on the actual adoption of the comprehensive plan. 2. Ottoviani was not aware that she could not vote on issues related to the comprehensive plan (i.e. approving payment to Kipp & Associates). c. Council's desire to have Ottoviani participate in zoning edits with Scott was discussed at a public council meeting. d. Ottoviani's failure to disclose sources of income and employer information on her 2004 and 2005 calendar years Statements of Financial Interests was an oversight as the result [of] not understanding the forms. III. DISCUSSION: As a Council Member for Centerville Borough ( "Borough ") in Washington County since January 5, 2004, Respondent Danielle Ottoviani (hereinafter also referred to as "Respondent," "Respondent Ottoviani," and "Ottoviani ") 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 Ottoviani violated Sections 1103(a) and 1105(b) of the Ethics Act when she used the authority of her public position as a Borough Council Member to participate in approving payments to firms that employed her which included, in part, compensation paid to her; when she submitted hours for payment to the borough engineer for services rendered in making edits to the borough zoning ordinance without council approval; and when she failed to disclose sources of income and her office, directorship, or employment on Statements of Financial Interests filed for calendar years 2004 and 2005. 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 1105(b) of the Ethics Act sets forth the information that must be disclosed on the Statement of Financial Interests form. Subject to certain statutory exceptions not applicable in this case, Section 1105(b)(5) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests the name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. Ottoviani, 06 -031 Page 21 Section 1105(b)(8) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests any office, directorship or employment in any business entity. Having noted the issues and applicable law, we shall now summarize the facts pertaining to this case. Given Respondent's failure to file an Answer to the Investigative Complaint, the facts as averred by the Investigative Complaint are deemed admitted by the Respondent. 65 Pa. C. S. § 1108(e); 51 Pa. Code § 21.5(k). The Borough is governed by a seven - member council and mayor. Council members receive $156.25 gross monthly ($1,875 annually) as payment for their service. Comprehensive Plans are routinely developed by governmental bodies in an effort to plan for future development in their respective geographic locations. Comprehensive plans can be developed at the municipal, multi - municipal, or county level. From 1997 to May 2003, prior to Ottoviani's service on Borough Council, the Borough was involved in efforts to develop a regional comprehensive plan that would include the Borough and other municipalities. In May 2003, the Borough terminated its involvement with the project, but Borough Council remained interested in utilizing portions of the plan that had been developed for an independent comprehensive plan solely for the Borough. Subsequently in 2003, Borough Council accepted a proposal from Robert Kipp ( "Kipp "), owner /operator of R. Kipp & Associates Municipal Planning Consultants (also referred to herein as "Kipp's Company "), for completion of the comprehensive plan at an approximate cost of $10,000 with a twelve to fifteen month time line. The Borough formed a Comprehensive Plan Committee consisting of Council members Zebley and Frederick Roberts, and resident George Hagedorn. Ottoviani began serving as a Borough Council Member on January 5, 2004. On May 25, 2004, Ottoviani was appointed to the Comprehensive Plan Committee to replace Hagedorn. During that same meeting, Zebley was appointed Chair of the Comprehensive Plan Committee and Solicitor Brian Teslovich asked to be on the Committee. Ottoviani was appointed to the Comprehensive Plan Committee primarily due to her educational background. Ottoviani holds a Bachelor's Degree in Parks and Recreational Management and a Master's Degree in Geography and Regional Planning. Ottoviani received her Master's Degree in May 2004. Ottoviani met Kipp for the first time in late May /early June 2004, when members of the Comprehensive Plan Committee and other Borough representatives met with Kipp to discuss the comprehensive plan. Following the meeting, Ottoviani and Kipp continued to discuss the comprehensive plan and planning in general. Ottoviani informed Kipp that she had recently received her Master's Degree in Geography and Regional Planning. Kipp asked Ottoviani if she would be interested in the opportunity to work for him. Ottoviani was not actively seeking employment at that time, but Ottoviani contacted Kipp a short time later and expressed her interest in employment with Kipp's Company. Per Fact Finding 41, Ottoviani worked full time as an independent contractor for Kipp's Company beginning in or about June 2004. Ottoviani's compensation was initially set at the rate of $15.00 per hour plus mileage. Ottoviani's compensation increased to $16.00 per hour plus mileage in January 2005. Ottoviani ceased working with Kipp's Company effective the last week of April 2005. From June 2004 through April 2005, Ottoviani received at least thirty checks from Kipp totaling $23,740.74 in wages and mileage /expense reimbursement as detailed in Fact Ottoviani, 06 -031 Page 22 Finding 51. Ottoviani's signature appears on the reverse of each check issued. Ottoviani's work for Kipp's Company included work for the Borough on the comprehensive plan. Timesheets submitted by Ottoviani documented a minimum of one hundred two hours claimed on work for the Borough, resulting in Ottoviani's receipt of $1,530 in compensation from Kipp's Company. Ottoviani's only work for Kipp that related to the Borough was associated with the development of the comprehensive plan. Although Zebley was the Chair of the Comprehensive Plan Committee, Ottoviani routinely presented information and updates at Borough Council meetings regarding progress on the comprehensive plan. Ottoviani presented the information as a result of having first hand information through her work with Kipp's Company. As detailed in Fact Finding 46, from February 2004 through January 2005, Kipp submitted eight invoices totaling $9,000 to the Borough for services performed on the Borough comprehensive plan. Ottoviani voted to approve each of those invoices. Fact Finding 48. Some of the invoices included work completed by Ottoviani for which she had submitted timesheets to Kipp. As detailed in Fact Findings 46 a and 48, while Ottoviani had a business relationship with Kipp, Ottoviani voted on five separate occasions to approve bill lists that included payments totaling $7,500 to Kipp. Ottoviani did not publicly disclose the aforesaid business relationship prior to voting to approve bill lists including payments to Kipp's Company. However, Ottoviani informed the majority of Borough Council of her work with Kipp's Company in general conversation shortly after the business relationship began. The fact that Ottoviani was doing work for Kipp's Company was common knowledge among Borough Council members and was occasionally mentioned during public meetings where the comprehensive plan was discussed. Kipp's Company realized approximate profits totaling $778 from June 2004 through April 2005 (the period of time that Ottoviani was working with Kipp's Company) as a result of payments issued by the Borough for development of the comprehensive plan. Fact Finding 69. After severing her work relationship with Kipp's company, Ottoviani provided planning services for municipalities under the name, "Creative Planning by Danielle." At the June 14, 2005, regular Borough Council meeting, Teslovich recommended that the Borough move forward with the procedure for adoption of the comprehensive plan by advertising the required public meeting. The public meeting was scheduled for July 6, 2005. The motion to advertise the meeting passed unanimously, with Ottoviani present at the meeting. Additionally discussed at the June 14, 2005, meeting was the new Borough zoning ordinance. Council approved Greg Scott, of Borough Engineer Nichols & Slagle, to review the new zoning ordinance as it compared to the comprehensive plan. The motion to utilize Scott for the review passed unanimously with Ottoviani seconding the motion. Scott indicated at the June 14, 2005, meeting that he could work with Ottoviani on the zoning ordinance. Ottoviani agreed to assist Scott with edits to the zoning ordinance and zoning map. Council took no official vote authorizing Ottoviani to assist Scott with the zoning edits or to submit hours worked on the edits to Nichols & Slagle for payment. As detailed in Fact Finding 56, Ottoviani submitted Invoice No. 0002, dated September 13, 2005, in the amount of $442 to Nichols & Slagle for services Ottoviani performed in association with the Borough zoning ordinance. Ottoviani submitted the invoice under Scott's direction. Ottoviani, 06 -031 Page 23 Nichols & Slagle subsequently prepared and issued Invoice Number 890 -05, dated September 30, 2005, in the amount of $1,903.70 to the Borough for services provided relative to the zoning ordinance. Noted on the invoice was "Planner Services" in the amount of $486.20. This charge included the amount charged by Ottoviani per Invoice No. 0002 plus a ten percent up charge as set forth in Fact Finding 58. Ottoviani was issued Nichols & Slagle check number 13868, dated October 10, 2005, in the amount of $442 for services rendered in relation to the Borough zoning ordinance. Ottoviani's signature is present on the reverse of the check. The Borough issued General Fund check number 04147, dated October 26, 2005, in the total amount of $4,077.39 to Nichols & Slagle, which check included payment for Invoice No. 890 -05 in the amount of $1,903.70. Ottoviani was absent from the meeting at which this payment was approved. Ottoviani realized a total financial gain of $1,972 ($1,530 + $442) as a result of Ottoviani's actions as a Member of Borough Council in voting to approve payments to Kipp's Company at a time when Ottoviani was working with and receiving payment from that company; and when Ottoviani submitted an invoice to Borough Engineer Nichols & Slagle for payment for services rendered in relation to the Borough zoning ordinance, without the approval of Borough Council. Fact Finding 71. We shall now review the Fact Findings pertaining to the Statement of Financial Interests ( "SFI ") filing requirements. As a Borough Council Member, Ottoviani is required to file SFIs in conformity with the Ethics Act. Ottoviani received income from both the Borough and Kipp's Company in calendar years 2004 and 2005. Ottoviani was issued W -2 forms from the Borough for earnings in the amount of $1,718.75 and $2,031.25 for calendar years 2004 and 2005 respectively. Ottoviani received earnings from Kipp's Company totaling $13,728.11 and $10,012.63 for calendar years 2004 and 2005 respectively. Ottoviani filed SFIs on January 11, 2005, and January 9, 2006, for calendar years 2004 and 2005 respectively. Ottoviani did not disclose the Borough or Kipp's Company as sources of income on her SFIs filed for calendar years 2004 and 2005. To the contrary, on both SFIs, Ottoviani specifically designated that she had no disclosable sources of income, by marking the box labeled "none." Ottoviani did not list any office, directorship, or employment with Kipp's Company on SFIs filed for calendar years 2004 and 2005. In a sworn statement provided to Commission investigators on September26, 2006, Ottoviani stated the following: Kipp presented the possibility of employment to Ottoviani; Ottoviani did not solicit employment from Kipp; Ottoviani was informed by members of Council of the need to abstain from any voting regarding the comprehensive plan; Ottoviani understood this to mean that she could not vote on the actual adoption of the comprehensive plan; Ottoviani was not aware that she could not vote on issues related to the comprehensive plan (i.e. approving payment to Kipp's Company); Council's desire to have Ottoviani participate in zoning edits with Scott was discussed at a public Council meeting; and Ottoviani's failure to disclose sources of income and employer information on her 2004 and 2005 calendar year SFIs was an oversight as the result not understanding the forms. The Investigative Division has filed a Position Statement wherein it arguest: (1) that Respondent's participation in Borough Council's actions to approve payments to Kipp, which included compensation for services she had rendered in relation to the Ottoviani, 06 -031 Page 24 comprehensive plan, constituted a use of the authority of her public office for a private pecuniary benefit to herself in the amount of $1,530; (2) that Respondent's participation in Borough Council's actions to approve payments for invoices submitted by Kipp's Company constituted a use of authority of office to obtain a private pecuniary benefit for a business with which she was associated as an employee of Kipp's Company; (3) that Respondent's work on the Borough's zoning ordinance was done in her capacity as a Borough Council Member, and that her submission of an invoice to Nichols & Slagle and her subsequent receipt of unauthorized compensation for that work was in violation of Section 1103(a) of the Ethics Act; (4) that Respondent's failure to disclose the Borough and Kipp's Company as sources of income on her SFIs for calendar years 2004 and 2005 constituted a violation of Section 1105(b)(5) of the Ethics Act; and (5) that Respondent's failure to disclose her employment with Kipp's Company on SFIs for calendar years 2004 and 2005 constituted a violation of Section 1105(b)(8) of the Ethics Act. In its Position Statement, the Investigative Division requests that Respondent be ordered to pay restitution to the Borough in the total amount of $5,722, consisting of the $1,530 that she received through Kipp's Company for her work on the Borough's comprehensive plan; the $442 that she received through Nichols & Slagle for her work on the Borough's zoning ordinance; plus the compensation ($1,718.75 and $2,031.25) she received from the Borough during calendar years 2004 and 2005, for which she filed deficient SFIs. See, 65 Pa.C.S. § 1104(d); Fact Finding 74. Ottoviani has not filed a Position Statement. We must now determine whether the actions of Ottoviani violated Sections 1103(a) and /or Section 1105(b) of the Ethics Act. As we apply the facts to the allegations, due process requires that we not depart from the allegations. Pennsy v. Department of State, 594 A.2d 845 (1991). Based upon our review of the record, we find that there is clear and convincing evidence to support certain violations of the Ethics Act under the allegations. Clear and convincing evidence is "testimony that is so `clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue." In Re: Charles E.D.M., 550 Pa. 595, 601, 708 A.2d 88, 91 (Pa. 1998) (Citation omitted). It is alleged that Respondent violated Sections 1103(a) and 1105(b) of the Ethics Act: (1) when she used the authority of her public position as a Borough Council Member to participate in approving payments to firms that employed her which included, in part, compensation paid to her; (2) when she submitted hours for payment to the borough engineer for services rendered in making edits to the borough zoning ordinance without council approval; and (3) when she failed to disclose sources of income and her office, directorship, or employment on Statements of Financial Interests filed for calendar years 2004 and 2005. In applying the first allegation to the admitted findings, we hold that Respondent Ottoviani violated Section 1103(a) of the Ethics Act when she used the authority of her public position as a Borough Council Member to participate in approving payments to Kipp's Company, a business with which she had a business relationship, which payments included, in part, compensation paid to her. Each element of a violation of Section 1103(a) has been established. As detailed in Fact Finding 46, from February 2004 through January 2005, Kipp submitted eight invoices totaling $9,000 to the Borough for services performed on the Borough comprehensive plan. Ottoviani voted to approve each of those invoices. Fact Finding 48. Some of these invoices included work completed by Ottoviani for which she Ottoviani, 06 -031 Page 25 had submitted timesheets to Kipp. As detailed in Fact Findings 46 a and 48, while Ottoviani had a business relationship with Kipp, Ottoviani voted on five separate occasions to approve bill lists that included payments totaling $7,500 to Kipp. Ottoviani's participation in approving the aforesaid payments constituted a use of the authority of her public office as a Borough Council Member. We agree with the Investigative Division's Position Statement that the resulting private pecuniary benefit to Ottoviani consisted of the $1,530 that she received through Kipp's Company as her own compensation for work on the Borough's comprehensive plan. The Fact Findings are inconsistent as to whether Ottoviani was an "employee" of Kipp's Company. Although numerous Fact Findings refer to Ottoviani as having been an employee of Kipp's Company, Fact Finding 41 states that Ottoviani worked for Kipp's Company as an independent contractor. In this case, status as an independent contractor results in a more favorable outcome for Respondent than status as an employee. Fact Finding 41 is binding. See, Bartholomew v. State Ethics Commission, 795 A.2d 1073 (Pa. Cmwlth. 2002). Accordingly, we determine that Ottoviani was not an "employee" of Kipp's Company. Additionally, Kipp's Company was not a business with which Ottoviani was associated. Waleski, Order 1331 at 23. However, Ottoviani was "employed by" Kipp's Company in the sense that she was used by Kipp's Company for services to the Borough related to the comprehensive plan. Therefore, the Allegations adequately encompass the violation of Section 1103(a) that occurred. (We note that the Allegations are not subject to limitations imposed upon the meaning of "employed by" that exist with respect to the use of that phraseology in the statute itself, see, 51 Pa. Code § 11.1.) The above finding of a violation of Section 1103(a) is supported by case law as well as prior Commission precedent. Cf., e.q., Snyder v. State Ethics Commission, 686 A.2d 843 (Pa. Commw. Ct. 1996); Fiorello, Order 1363. In applying the second allegation to the admitted findings, we hold that Ottoviani did not violate Section 1103(a) of the Ethics Act with regard to her submission of an invoice (Invoice No. 0002) to Borough Engineer Nichols & Slagle for payment for services rendered in making edits to the Borough zoning ordinance, in that the resulting pecuniary benefit to Ottoviani in the amount of $442 was de minimis. Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004) (holding that a net profit in the amount of $561.77 resulting from business transactions between a township supervisor's employer and the township would fall within the "de minimis" exclusion to the definition of "conflict of interest "). Ottoviani violated Section 1105(b)(5) of the Ethics Act when she failed to disclose both the Borough and Kipp's Company as sources of income of $1,300 or more on the SFIs that she filed for calendar years 2004 and 2005. See, In Re: Nomination Petition of Benninghoff, 578 Pa. 402, 852 A.2d 1182 (2004); Fiorello, supra. Given Ottoviani's obvious intelligence, and the totality of the facts of this case, there is simply no excuse for Ottoviani's representations on her SFIs that she had no sources of income for the 2004 and 2005 calendar years. Ottoviani did not violate Section 1105(b)(8) of the Ethics Act when she did not list any office, directorship, or employment on her SFIs filed for calendar years 2004 and 2005, in that the Fact Findings do not establish that she had any such statuses to disclose. Section 1107(13) of the Ethics Act empowers this Commission to impose restitution in instances where a public official /public employee has obtained a financial gain in violation of the Ethics Act. Section 1104(d) of the Ethics Act provides, inter alia, that no public official shall Ottoviani, 06 -031 Page 26 receive compensation from public funds unless he has filed a statement of financial interests as required by the Ethics Act. See, Draper, Order 1229; Huhn, Order No. 431. We shall require Ottoviani to pay restitution totaling $3,561.25, consisting of $1,530 for the private pecuniary benefit she received in violation of Section 1103(a) and $2,031.25 for the compensation she received as a Borough Council Member in 2005 having filed a deficient SFI for calendar year 2004. Ottoviani is directed to pay restitution to the Borough in the total amount of $3,561.25 within 30 days of the date of mailing of this Order, by forwarding a check payable to the Borough in the amount of $3,561.25 to this Commission for processing. Ottoviani is directed to file amended SFIs for calendar years 2004 and 2005 with the Borough within 30 days of the date of mailing of this Order, providing full financial disclosure as required by the Ethics Act and specifically including sources of income of $1,300 or more, and to forward to this Commission copies of the aforesaid filings for compliance verification purposes. 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. Danielle Ottoviani ( "Ottoviani "), as a Council Member for Centerville Borough ( "Borough ") in Washington County since January 5, 2004, is 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. Ottoviani violated Section 1103(a) of the Ethics Act when she used the authority of her public position as a Borough Council Member to participate in approving payments to R. Kipp & Associates Municipal Planning Consultants ( "Kipp's Company "), a business with which she had a business relationship, which payments included, in part, compensation paid to her. 3. Ottoviani did not violate Section 1103(a) of the Ethics Act with regard to her submission of an invoice (Invoice No. 0002) to Borough Engineer Nichols & Slagle for payment for services rendered in making edits to the Borough zoning ordinance, in that the resulting pecuniary benefit to Ottoviani in the amount of $442 was de minimis. 4. Ottoviani violated Section 1105(b)(5) of the Ethics Act when she failed to disclose both the Borough and Kipp's Company as sources of income of $1,300 or more on SF's that she filed for calendar years 2004 and 2005. 5. Ottoviani did not violate Section 1105(b)(8) of the Ethics Act when she did not list any office, directorship, or employment on her SF's filed for calendar years 2004 and 2005, in that the Fact Findings do not establish that she had any such statuses to disclose. In Re: Danielle Ottoviani, Respondent ORDER NO. 1437 File Docket: 06 -031 Date Decided: 3/27/07 Date Mailed: 4/11/07 1 Danielle Ottoviani ( "Ottoviani "), a public official in her capacity as a Council Member for Centerville Borough ( "Borough ") in Washington County since January 5, 2004, violated Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), when she used the authority of her public position as a Borough Council Member to participate in approving payments to R. Kipp & Associates Municipal Planning Consultants ( "Kipp's Company "), a business with which she had a business relationship, which payments included, in part, compensation paid to her. 2. Ottoviani did not violate Section 1103(a) of the Ethics Act with regard to her submission of an invoice (Invoice No. 0002) to Borough Engineer Nichols & Slagle for payment for services rendered in making edits to the Borough zoning ordinance, in that the resulting pecuniary benefit to Ottoviani in the amount of $442 was de minimis. 3. Ottoviani violated Section 1105(b)(5) of the Ethics Act when she failed to disclose both the Borough and Kipp's Company as sources of income of $1,300 or more on Statements of Financial Interests that she filed for calendar years 2004 and 2005. 4. Ottoviani did not violate Section 1105(b)(8) of the Ethics Act when she did not list any office, directorship, or employment on her Statements of Financial Interests filed for calendar years 2004 and 2005, in that the Fact Findings do not establish that she had any such statuses to disclose. 5. Ottoviani is directed to pay restitution to the Borough in the total amount of $3,561.25 within 30 days of the date of mailing of this Order, by forwarding a check payable to the Borough in the amount of $3,561.25 to this Commission for processing. 6. Ottoviani is directed to file amended Statements of Financial Interests for calendar years 2004 and 2005 with the Borough within thirty days of the issuance of this Order, providing full financial disclosure as required by the Ethics Act and specifically including sources of income of $1,300 or more, and to forward to this Commission copies of the aforesaid filings for compliance verification purposes. 7 Compliance with Paragraphs 5 and 6 of this Order will result in the closing of this case with no further action by this Commission. a. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Ottoviani, 06 -031 Page 28 Louis W. Fryman, Chair