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In Re: Justin Sauder,
Respondent
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
File Docket:
X-ref:
Date Decided
Date Mailed:
FACSIMILE: 717-787-0806
WEBSITE: www ethics. a. ov
19-027
Order No. 1774
6/22/20
711120
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Melanie DePalma
Michael A. Schwartz
Shelley Y. Simms
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted
an investigation regarding possible violation(s) 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 allegation(s). Upon completion of its investigation, the
Investigative Division issued and served upon Respondent a Findings Report identified
as an "Investigative Complaint." A Stipulation of Findings and a Consent Agreement were
subsequently submitted by the parties to the Commission for consideration. The
Stipulated Findings are set forth as the Findings in this Order. The Consent Agreement
has been approved.
ALLEGATIONS:
That Justin Sauder, a public official/public employee in his capacity as a Member
of the Board of Supervisors for East Earl Township, Lancaster County, violated Sections
1103(a), 1105(b}(1), 1105 b)(28, 1105(b)(4), and 1105(b)(8) of the Sate Ethics Act (Act
93 of 1998), 6 a.C.S. § 11 3(a), 11 ( )(1), 1105(b)(2), 1105(b)(4), and 1105(b)(8),
when he participated in discussions and actions of the Board of Supervisors regarding
the hiringlappointment of the Township Manager, at a time when he knew or had a
reasonable expectation that he was/would be seeking to be hired/appointed as the East
Earl Township Manager; and when he filed deficient Statement[s] of Financial Interests
by failing to disclose his employment with Gehman Feed Mills upon Statements of
Financial Interests filed for calendar years 2014 through 2018, failed to provide an
address for calendar years 2016-2018, failed to provide a response to Creditors and
Office Status for calendar year 2018, and failed to provide a response to Occupation and
Creditors for his calendar year 2017 filing.
II. FINDINGS:
Justin Sauder (also referred to herein as "Respondent," "Respondent Sauder," and
"Sauder' served as a Member of the East Earl Township ("Township"), Lancaster
County, Board of Supervisors ("Board") from January 5, 2015, until his resignation
(effective January 6, 2019).
a. Sauder submitted/announced his resignation from the Board on December
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11, 2018.
b. On December 11, 2018, Sauder reported to the Board that the meeting
would be his last in that he was "resigning effective January 6, 2019, so that
he is available to assume his appointment as [East Earl] Township
Manager."
2. Sauder has been employed as the Township Manager since January 7, 2019.
a. As Manager, Sauder is responsible for overseeing the day-to-day
administrative operations of the Township.
b. The position of Township Manager reports directly to the Board.
C. As Manager, Sauder is compensated by an annual salary of approximately
$70,000.00, plus Township provided health/retirement benefits.
3. Prior to being appointed Township Manager, Sauder was employed by Gehman
Feed Mill, 44 N. 3rd Street, Denver, Pennsylvania, from approximately 2000 until
October 2018.
a. Sauder was employed on a full-time basis as a feed salesman.
b. Sauder's primary job duties entailed the sale of feed products and customer
service to farmers in the Lancaster County area.
C. Sauder's salary with Gehman Feed Mill in 2018 was approximately
$50,000.00 plus benefits.
4. The Township is a Second Class Township governed by a three Member Board.
a. Township Supervisors receive annual compensation of $2,500.00.
5. On January 18, 2016, Craig Ebersole was appointed the Township's first Manager.
a. As Manager, Ebersole was responsible for overseeing the day-to-day
administrative operations of the Township.
b. Prior to the creation of the Township Manager position, these duties were
administered by Secretary/Treasurer Connie Gross ("Gross").
1. Gross is a long time Township employee with over 21 years of
service.
2. After the creation of the Manager position, Gross continued to serve
as Secretary/Treasurer.
C. Ebersole held the position of Township Manager until his
resignationlretirement effective December 31, 2016.
d. Ebersole was succeeded by Randy Heilman who held the position of
Township Manager from January 1, 2017, until being terminated by the
Board on April '10, 2018.
6. Sauder participated in Board action taken on April 10, 2018, to terminate Heilman's
employment as Manager of the Township.
a. Heilman was terminated by a unanimous Board vote on April 10, 2018.
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7. On April 10, 2018, Sauder participated in unanimous Board action to appoint Terry
Kauffman ("Kauffman") to serve as the Township's Interim Manager until a
permanent anager could be hired.
a. Kauffman was a semi -retired employee of Arro Engineering, holding the
position of Vice -President of Marketing.
1. Arro Engineering is the Engineering firm for the Township.
b. Kauffman had extensive governmental experience including service as a
Lancaster County Commissioner (1991-1999), Mt. Joy Borough Manager
(2000-2012} and interim Manager for Lower Swatara Township, and
yerstown Borough.
8. Kauffman stressed to the Board that he had no interest in serving as the permanent
Township Manager.
a. Kauffman was specifically tasked with conducting a search for the
Township's next Manager, in addition to being responsible for overseeing
the day-to-day administrative functions of the Township.
9. Kauffman met with the Township Supervisors (including Sauder , employees, and
residents to get input on possible candidates, as well as desire traits for the next
Township Manager, upon assuming the position of Interim Manager.
a. Although Gross, the current Secretary/Treasurer, had over 20 years of
experience with the Township, she was not interested in the position as she
was considering retirement.
b. All three Supervisors were approached regarding their interest in the
position.
C. Neither Supervisor Nelson Groff nor Supervisor Daniel Fox was interested
in the position.
d. Sauder had not expressed interest in the position but was concerned that
he lacked the experience needed to perform the job duties of Township
Manager and also questioned as to whether a Supervisor of a Second Class
Township could be appointed Manager within one year of leaving the board
of supervisors.
The Second Class Township Code prohibits a Supervisor from
simultaneously holding the position of Township Manager (see, 53
P.S. § 66301).
10. The Township does not have any internal policies prohibiting a Supervisor from
resigning to become an employee of the Township within the first year of leaving
office.
a. Kauffman verbally reported to the Board around April or May 2018 that a
Supervisor could simultaneously serve on the Board and be employed as
the Secretary/Treasurer, Zoning Officer, and/or other employee positions
not otherwise incompatible with the office of Supervisor.
b. Kauffman further informed the Board that an individual could not
simultaneously hold the positions of Supervisor and Township Manager.
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C. Kauffman confirmed these opinions with Township Solicitor Aaron Marines
("Marines") and the Pennsylvania State Association of Township
Supervisors ("PSATS").
11. On May 17, 2018, Sauder emailed Marines inquiring whether there would be any
legal prohibitions against him (Sauder) being appointed Manager within one year
of resigning as a Supervisor.
a. Sauder had several conversations with Kauffman about the position prior to
Sauder contacting Marines on the matter.
b. Sauder claimed that although he was not interested in the position, others
believed he should apply.
Kauffman was encouraging Sauder to consider applying for the
position at the time.
C. Sauder believed that if he legally could not serve as Township Manager,
that would resolve the issue without him having to decide.
Sauder stated that he had apprehensions about applying, believing
that he did not have the educational background and experience
needed to be successful as Township Manager.
12. Sauder authored a May 17, 2018, email to Marines posingg the specific question as
to whether a Supervisor can be appointed Manager within one year of leaving
office.
a. Sauder did not include any other Township officials on the email.
b. Sauder's email to the Solicitor questioned his ability to hold the position, as
neither of the other two Supervisors had any interest in serving as Township
Manager.
C. Supervisors Fox and Groff were unaware that Sauder emailed the Solicitor
seeking advice.
13. The text of Sauder's May 17, 2018, email to Marines, and Marines' response on
May 23, 2018, is as follows:
a. Sauder to Marines (May 17, 2018):
Aaron,
I am writing to confirm that a Supervisor can become Manager
after resigning, or must they resign 1 year prior to being
hired??
Thanks,
Justin
b. Marines' response (May 23, 2018):
There is no one year waiting period to go from a supervisor to
a Manager. The State Ethics Act has a one year waiting
period to represent someone in Township in which you were
a public official or employee. So you could not go from a
supervisor or manager to being a developer looking for
township approval until the one year waiting period is up. I
hope this helps. Feel free to give me a call if you need to talk
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about it.
14. Sauder did not provide the other Supervisors or Kauffman a copy of the Solicitor's
May 23, 2018, email.
a. The email exchange between Sauder and Marines occurred prior to
Kauffman pursuing applicants not already affiliated with the Township.
15. On May 22, 2018, Secretary/Treasurer Gross emailed Holly M. Fishel ("Fishel") at
PSATS inquiring whether a Supervisor was required to wait a year after leaving
office before being able to be appointed Township Manager.
a. Gross did not recall who directed her to make the inquiry of PSATS.
b. Board of Supervisors meeting minutes do not reflect that the email and/or
PSATS response was ever provided to the Board.
C. Meeting minutes also do not include any action directing Gross to contact
PSATS.
16. Gross's May 22, 2018, email exchange with Fishel (PSATS) included the following
response from Fishel:
Hi Connie,
Yes, if a supervisor first resigns their position as
supervisor they could be appointed as township manager.
Note] however, I would recommend that the individual who
would be appointed verify with the solicitor that they are not
subject to the waiting period in the State Ethics Law. It is my
understanding that this provision applies to acting as a
consultant for the township, not being an employee/manager.
But it would be a good idea to have written opinion to this
question. I hope this helps.
17. Shortly after these inquiries, Sauder informed Kauffman that he (Sauder) was not
interested in pursuing an appointment as the Township Manager despite there
being no apparent legal prohibition.
a. Sauder's decision prompted Kauffman to initiate an external search for
applicants.
18. On June 19, 2018, Kauffman placed a vacancy announcement regarding the
Township Manager position with PSATS' Job Finder Portal through the PSATS
website.
a. Kauffman received a total of three applicants for which he subsequently
contacted references.
b. Based on his initial screening, Kauffman presented resumes for Cody
Rhoads ("Rhoads") and Randall Miller ("Miller") to the Board for
consideration.
C. Kauffman arranged for in -person interviews of both Rhoads and Miller
before the Board.
19. Rhoads' resume indicated that he earned a B.A. degree in Sports Management
and an M.S. degree in Sports Business.
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a. Rhoads' municipal experience was identified as being the Plant Coordinator
for the Maidencreek Township Authority.
20. Miller's resume indicated that he earned a B.A. degree in Organizational
Management.
a. Miller's prior municipal experience included serving for 10 years on Mount
Penn Borough Council, and as Manager of Birdsboro Borough and
Secretary for Caernarvon Township.
21. Sauder did not apply for the Township Manager's position.
a. Sauder did not express any interest in the position to the other Supervisors
or to Kauffman at the time of the applicant interviews.
22. During the Supervisors' July 10, 2018, meeting, Kauffman reported to the Board
that "the search for a Townshipp Manager has begun with advertising from June 19
through July 20 through PSATS. Applications have been received, and he is
holding the resumes. The Supervisors will look them over individually and choose
those they want to interview."
a. Minutes did not identify the number of applications received.
23. Supervisors Sauder, Fox, and Groff interviewed both Rhoads and Miller
2018.
individually for the Manager position during an executive session held on July 25,
a. Sauder was not an applicant for the position and was not interviewed.
b. Rhoads and Miller were the only individuals who were interviewed by the
Board for the position.
C. The consensus of the Supervisors, including Sauder, was that neither of the
applicants interviewed would be considered further.
24. It was announced during the Board's August 14, 2018, meeting that interviews for
the Manager position were conducted and that it was the "unanimous consensus
that none of the candidates interviewed were the right fit for East Earl Township."
a. Supervisor Sauder was part of the unanimous consensus.
b. Supervisor Groff proposed having Kauffman continue the search for a
Township Manager.
25. The Board expressed concern that the Township Manager must be able to
effectively interact with Township residents.
a. The Board's concerns were based on the diverse Township population
including many Amish and Mennonite farming families.
26. Minutes from the August 14, 2018, Supervisor meeting reference an executive
session held on July 25, 2018, for the purpose of interviewing candidates for the
position of Township Manager.
a. Neither the number of candidates interviewed nor their names were
identified.
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1. Rhoads and Miller were the only candidates interviewed.
b. Minutes include the following information:
Chairman Groff announced the Board of Supervisors met in executive
session on July 25 at 5:30 p.m. to interview potential candidates for the
position of Township Manager. At the conclusion of the interviews it was
the unanimous consensus that none of the candidates interviewed were the
Fight fit for East Earl Township. The Board of Supervisors believes it is
imperative to find the right person who will have the ability to easily
communicate with the Board, staff and residents of East Earl Township. He
proposed having the Interim Manager continue the search with the hope of
finding the right candidate for East Earl Township and its residents. While
the search continues, Interim Manager Kauffman has agreed to continue in
his current role. It was the consensus of the Supervisors to approve this
plan of action.
Present: Sauder, Fox, Groff
27. Dave Horst ("Horst"), a Township resident, approached the Board after the August
14, 2018, meeting and recommended Sauder be Fired as the Township Manager.
a. Horst is a local greenhouse owner and member of Citizens for Change, a
citizens group, who regularly attends Board meetings.
b. Horst had previously recommended Sauder for the position to Kauffman.
C. Horst recommended Sauder to Kauffman based on his personal
observations of Sauder as a Township Supervisor and input from other
members of Citizens for Change.
28. Kauffman continued searching for additional candidates for the Board to consider.
a. During this search, Kauffman had individual conversations with Supervisors
Fox and Groff.
b. Kauffman sought their opinion again on approaching Sauder about the
Manager position.
C. Supervisors Fox and Groff each individually supported Kauffman discussing
the Manager position with Sauder, to gauge his interest in being appointed.
29. Fallowing his meetings with Fox and Groff, Kauffman had additional discussions
with Sauder about his interest in being appointed Township Manager.
a. Kauffman suggested that Sauder accept the positions of Assistant
Secretary/Treasurer, Assistant Zoning Officer, Right -to -Know Officer, and
M2-4 Coordinator on a trial basis to determine if Sauder would be a good fit
for the eventual appointment as Manager.
b. This arrangement would also permit Kauffman to mentor Sauder and assist
him in learning the requirements for each of the positions.
30. In early October 2018, Sauder verbally agreed to serve as the "assistant" as a
means of a trial run for eventual appointment as Manager.
a. Kauffman identified an appropriate wage for Sauder based on job duties.
b. Kauffman presented the recommended compensation to the Township
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Board of Auditors for approval on October 9, 2018.
31. At the recommendation of Township consultant and Interim Manager Kauffman,
on October 9, 2018, Auditors Calvin Ewell and Mary Leaman approved an initial
salary for Sauder of $58,240.00.
a. This was to be increased to $60,320.00 upon completion of training.
b. Sauder was also approved to receive the same benefits as all non -uniform
Township employees.
c. The setting of Sauder's salary by the Auditors occurred prior to the Board's
October 9, 2018, meeting.
d. Sauder took no action and made no recommendation regarding the setting
of his compensation.
32. Kauffman also submitted an undated letter to the Board recommending Sauder be
hired as Assistant Secretary/Treasurer, Assistant Zoning Officer, Right -to -Know
Officer and M2-4 Coordinator.
a. This recommendation was provided to the Board during its October 9, 2018,
meeting.
b. Kauffman's recommendation to hire Sauder as the Township's Assistant
Secretary -Treasurer, Assistant Zoning Officer, Right -to -Know Officer and
MS4 Coordinator was included with his monthly report to the Board.
33. Minutes from the Board's October 9, 2018, meeting include the following report
provided by Kauffman, and Board action hiring Sauder:
Interim Manager Kauffman reported that the Supervisors chose not to hire any of
the candidates interviewed in July and thus charged him with beginning a search
to provide recommendations to them. His goal was to find someone who was
honest, fair and understood the community with a long-term commitment to the
Township. One candidate was at the top of the list — Justin Sauder. He met
individually with Supervisors Groff and Fox, staff and some residents to get their
thoughts and receive support from all. He recommended that Justin Sauder be
hired as Assistant Secretary -Treasurer, Assistant Zoning Officer, Right -to -Know
Officer and MS4 Coordinator for East Earl Township. The Second Class Township
code does not allow a Supervisor to be Township Manager. It is the responsibility
of the Board of Supervisors to authorize hiring and the responsibility of the Board
of Auditors to set the wages and benefits for a Supervisor serving as an employee.
The Board of Auditors met at 5:00 p.m. today at an advertised meeting and set the
wages for Justin Sauder at $58,240.00 effective immediately to increase to
$60,320.00 on January 1, 2019. He will receive three weeks of vacation starting
January 1, 2019, with incremental increases per Township policy after that, three
days of vacation through the remainder of 2018 and all benefits of a non -uniform
Township employee. Interim Manager Kauffman wholeheartedly endorsed action
to hire him under these conditions noting Secretary -Treasurer Gross has agreed
to continue employment and (s)he will be available to assist in any way (s)he can
through 2018 and the beginning of 2019 as needed. Supervisor Groff moved to
accept the recommendation to hire Justin Sauder to serve as indicated by Interim
Manager Kauffman with the wages and benefits noted, seconded by Supervisor
Fox and carried. Supervisor Sauder expressed thanks for the vote of confidence.
Present: Sauder, Fox, Groff
34. Minutes from the Board's October 9, 2018, meeting do not have a recorded roll
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call vote on the motion.
a. Minutes report a motion by Groff, seconded by Fox and carried.
b. That motion was based on Kauffman's written recommendation to the
Board.
C. Sauder is not recorded as either voting or abstaining.
d. Statements were provided to the Investigative Division from Interim
Manager Kauffman and Supervisors Fox, Groff and Sauder affirming that
Sauder did not participate in the vote.
35. During the Board's November 13, 2018, meeting, Interim Manager Kauffman
reported to the Board that "he is working with Justin on transition of Manager
duties, and this is moving along well."
a. Sauder continued in this position until January 6, 2019, when he was
appointed Township Manager.
b. Sauder's initial salary,of $58,240.00 was approximately $7,515.00 more
than what he was receiving as a salesman for Gehman Feed Mill.
36. Sauder announced his resignation from the Board to assume the Township
Manager position during the Board's December 11, 2018, meeting.
a. Minutes report Sauder announcing that he is "resigning effective January 6,
2019, so that he is available to assume his appointment as Township
Manager."
b. No action had been taken by the Board appointing him to the position of
Manager in advance of this announcement.
37. The Board took action appointing Sauder to the positions of Township Manager,
Right -to -Know Officer and Storm Water Specialist on January 7, 2019.
a. Sauder also was appointed Assistant Secretary -Treasurer by a separate
Board vote.
b. Sauder was not a Member of the Board when this action occurred.
THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT SAUDER FILED
DEFICIENT STATEMENTS OF FINANCIAL INTERESTS FOR CALENDAR YEARS
2014 THROUGH 2O18.
38. Sauder, in his official capacities as Township Supervisor and subsequently
Manager, was annually required to complete a Statement of Financial Interests
("SFI") by May 1st of each year, reporting financial interests for the prior calendar
year.
39. Sauder was annually provided with blank SFI forms to complete each January by
Secretary/Treasurer Gross.
a. Completed SFI filings are maintained by Gross with other official Township
records.
40. Sauder failed to provide a response to Box No. 2, Address, on SFIs he filed for the
2016 and 2018 calendar years.
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41. Sauder failed to provide a response to Box No. 6, Occupation, and Box No. 9,
Creditors, on his SFI filed for the 2017 calendar year.
42. Sauder failed to provide a response to Box No. 3, Status, and Box No. 9, Creditors,
on his SFI filed for the 2018 calendar year.
43. Sauder failed to report his employment with Gehman Feed Mill on SFIs filed for
the 2014 through 2018 calendar years.
a. Sauder was a salaried feed salesman for Gehman Feed Mill during 2014
through 2018.
44. Sauder filed amended SFI forms on November 25, 2019, for the 2015 through
2018 calendar years.
a. These amended filings were completed to correct deficiencies in Sauder's
original filings for each calendar year.
III. DISCUSSION:
As a Member of the Board of Supervisors ("Board") of East Earl Township
a
ownship"), Lancaster County, from January 5, 2015, until his resignation effective
nuary 6, 2019, and as the Township Manager since January 7, 2019, Respondent
Justin Sauder, hereinafter also referred to as "Respondent," "Respondent Sauder," and
"Sauder," has been a public official/public employee subject to the provisions of the Public
Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et se .
The allegations are that Respondent Sauder violated Sections 1103(a),
1105 b (1), 1105(b)(2), 1105(b)(4), and 1105(b)(8) of the Ethics Act, 65 Pa.C.S. §§
1103�a�, 1105(b)(1), 1105(b)(22), 1105(b)(4), and 1105(b)(8): (1) when he participated in
discussions and actions of the Board regarding the hiring/appointment of the Township
Manager at a time when he knew or had a reasonable expectation that he was/would be
seeking to be hired/appointed as the Township Manager; and (2) when he filed deficient
Statements of Financial Interests ("SFIs") by failing to disclose his employment with
Gehman Feed Mills upon SFIs filed for calendar years 2014 through 2018, failing to
provide an address for calendar years 2016-2018, failing to provide a response to
Creditors and Office Status for calendar year 2018, and failing to provide a response to
Occupation and Creditors for his calendar year 2017 filing.
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 term "conflict of interest" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public official
or public employee of the authority of his office or employment
or any confidential information received through his holding
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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 de ree
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.
Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict"
or "conflict of interest," 65 Pa.C.S. § .1102, pursuant to Section 1103(a) of the Ethics Act,
a public official/public employee is prohibited 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 and its subsections detail the financial disclosure
that a person required to file the SFI form must provide.
Section 1105(b)�1) of the Ethics Act requires the filer to disclose on the SFI his
name, address, and pu lic position.
Section 1105(b)(2) of the Ethics Act requires the filer to disclose on the SFI his
occupation or profession.
Subject to certain statutory exceptions, Section 1105(b)(4) of the Ethics Act
requires the filer to disclose on the SFI the name and address of each creditor to whom
is owed in excess of $6,500 and the interest rate thereon.
Section 1105(b)(8) of the Ethics Act requires the filer to disclose on the SFI any
office, directorship or employment in any business entity.
As noted above, the parties have submitted a Consent Agreement and Stipulation
of Findings. The parties' Stipulated Findings are set forth above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
The Township is a Second Class Township. The Board consists of three
Members.
Sauder served as a Township Supervisor from January5, 2015, until January 6,
2019. Sauder has been employed as the Township Manager since January 7, 2019.
From approximately 2000 until October 2018, Sauder was employed as a feed
salesman with a business named °Gehman Feed Mill," earning a salary of approximately
$50,000.00 plus benefits. As Township Manager, Sauder receives an annual salary of
approximately $70,000.00 plus Township provided health/retirement benefits.
A vacancy arose in the Township Manager position on April 10, 2018, when the
Board, including Sauder, voted unanimousI to terminate the employment of the individual
then serving as Township Manager. The Board, including Sauder, appointed an
individual named Terry Kauffman ("Kauffman") to serve as the Township's interim
Manager until a permanent Manager could be hired. Kauffman was tasked with
conducting a search for the Township's next Manager.
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Although Kauffman encouraged Sauder to consider applying for the position,
Sauder was concerned that he lacked the experience needed to perform the job duties of
Township Manager. Additionally, Sauder questioned whether a supervisor of a Second
Class Township could be appointed manager within one year of leaving the board of
supervisors.'
On May 17, 2018, Sauder emailed Township Solicitor Aaron Marines ("Marines")
inquiring whether there would be any legal prohibitions precluding him (Sauder) from
being appointed Manager within one year of resigning as a Supervisor. Sauder claimed
that although he was not interested in the position, others believed he should apply.
Sauder befieved that if he legally could not serve as Township Manager, that would
resolve the issue without him having to decide. Sauder stated that he had apprehensions
about applying, believing that he did not have the educational background and experience
needed to be successful as Township Manager. On May 23, 2018, Marines responded
to Sauder that there is no one-year waiting period to go from being a supervisor to being
a township manager.
On May 22, 2018, Township Secretary/Treasurer Connie Gross inquired with Holly
M. Fishel ("Fishel") at the Pennsylvania State Association of Township Supervisors
("PSATS") as to whether a supervisor was required to wait a year after leaving office
before being able to be appointed township manager. Fishel responded with her
understanding that a supervisor could resign from the position of supervisor and be
appointed as township manager, but Fishel suggested that the individual who would be
appointed verify with the solicitor that the waiting period in the Ethics Act would not apply
and get a written opinion on the question.
Shortly after these inquiries, Sauder informed Kauffman that he (Sauder) was not
interested in pursuing an apppointment as the Township Manager despite there being no
apparent legal prohibition. Sauder's decision prompted Kauffman to initiate an external
search for applicants.
On June 19, 2018, Kauffman placed a vacancy announcement regarding the
Township Manager position through the PSATS website. Sauder did not apply for the
Township Manager position.
Based on Kauffman's initial screening of applicants, Kauffman presented the
resumes of two individuals to the Board for consideration. On July 25, 2018, Sauder,
Supervisor Nelson Groff ("Groff'), and Supervisor Daniel Fox ("Fox") interviewed the
aforesaid two applicants for the Manager position. Sauder was not an applicant for the
position and was not interviewed. Sauder did not express any interest in the position to
the other Supervisors or to Kauffman at the time of the applicant interviews.
During the Board's August 14, 2018, meeting, it was announced that interviews for
the Manager position were conducted and that it was the "unanimous consensus that
none of the candidates interviewed were the right fit for East Earl Township." Fact Finding
24. Sauder was part of such unanimous consensus. Groff proposed having Kauffman
continue the search for a Township Manager.
After the August 14, 2018, Board meeting, Dave Horst ("Horst"), a Township
resident and member of a citizens group named "Citizens for Change," approached the
Board and recommended that Sauder be hired as the Township Manager. Horst had
previously recommended Sauder for the position to Kauffman based on his personal
observations of Sauder as a Township Supervisor and input from other members of
Citizens for Change.
1 The Second Class Township Code prohibits a supervisor from simultaneously holding the position of
township manager (see, 53 P.S. § 66301).
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Kauffman engaged in further discussions with Groff and Fox, who supported
Kauffman discussing the Manager position with Sauder to gauge his interest in being
appointed to the position.
Kauffman suggested to Sauder that Sauder accept the positions of Assistant
Secretary/Treasurer, Assistant Zoning Officer, Right -to -Know Officer, and M2-4
Coordinator on a trial basis to determine if Sauder would be a good fit for the eventual
appontment as Manager. This arrangement would permit Kauffman to assist Sauder in
learning the requirements for each of the positions. In early October 2018, Sauder
verbally agreed to serve as the "assistant" as a means of a trial run for eventual
appointment as Manager.
On October 9, 2018, at Kauffman's recommendation, the Township Auditors
approved an initial salary for Sauder of $58,240.00. This was to be increased to
$60,320.00 upon completion of training. Sauder was also approved to receive the same
benefits as all non -uniform Township employees. The setting of Sauder's salary by the
Auditors occurred prior to the Board s October 9, 2018, meeting. Sauder took no action
and made no recommendation regarding the setting of his compensation.
During the Board's October 9, 2018, meeting, the Board voted to hire Sauder as
recommended by Kauffmann and at the wages and benefits approved by the Auditors.
Although the minutes of the Board's October 9, 2018, meeting do not record Sauder as
either voting or abstaining, Kauffman, Fox, Groff, and Sauder have affirmed that Sauder
did not participate in the vote.2
During the Board's December 11, 2018, meeting, Sauder announced that he was
resigning from the Board effective January 6, 2019, so that he would be available to
assume his appointment as Township Manager.
On January 7, 2019, the Board appointed Sauder to the positions of Township
Manager, Right -to -Know Officer and Storm Water Specialist. Sauder also was appointed
Assistant Secretary -Treasurer by a separate Board vote. Sauder was not a Member of
the Board when this action occurred.
We shall now review the material facts involving Sauder's SFIs. As a Township
Supervisor and subsequently as the Township Manager, Sauder was required to file an
SFI byy May 1 st of each year. Sauder failed to provide a response to Box No. 2, Address,
on SFIs he filed for the 2016 and 2018 calendar years. Sauder failed to provide a
response to Box No. 6, Occupation, and Box No. 9, Creditors, on his SFI filed for the 2017
calendar year. Sauder failed to provide a response to Box No. 3, Status, and Box No. 9,
Creditors, on his SFI filed for the 2018 calendar year. Sauder failed to report his
employment with Gehman Feed Mill on SFIs filed for the 2014 through 2018 calendar
years. On November 25, 2019, Sauder filed amended SFI forms for the 2015 through
2018 calendar years to correct deficiencies in Sauder's original filings for each calendar
year.
2 It is administratively noted that Section 65602(a) of the Second Class Township Code provides, in part,
as follows:
With regard to boards of supervisors which are designated as three -
member boards, any supervisor who is to be considered by the board for
an appointed township position or for employrrient by the township as
authorized by law shall not be excluded from voting on the issue of such
appointment or employment. Action taken by a supervisor shall be
deemed to be within the scope of authority as a supervisor and shall not
be deemed to constitute an illegal or an improper conflict of interest.
53 P.S. § 65602(a).
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Having highlighted the Stipulated Findings and issues before us, we shall now
apply the Ethics Act to determine the proper disposition of this case.
The parties' Consent Agreement sets forth a proposed resolution of the allegations
as follows:
The Investigative Division will recommend the following
in relation to the above allegations:
That no violation of Section 1103(a) of the Public
Official and Employee Ethics Act, 65 Pa.C.S. §
1103(a) occurred in relation to Sauder's
participation in discussions and actions of the
Board of Supervisors regarding the
hiringlappointment of a Township Manager, as at
the time he engaged in any action he had
specifically declined to be considered a candidate
and did not possess a reasonable expectation that
the general public and other Township officials
would subsequently seek his appointment as the
East Earl Township Manager.
That a technical violation of Section(s)
1105(b)(1)(2)(4)(8) of the Public Official and
Employee Ethics Act, 65 Pa.C.S. §
1105(b)(1)(2)(4)(8) occurred in relation to Sauder
filing defficient SSt}atement of Financial Interests by
failing to disclose his employment with Gehman
Feed Mills upon Statements of Financial Interests
filed for calendar years 2014 through 2018, failing
to pprovide an address for calendar years 2016-
2018, failing to provide a response to Creditors and
Office Status for calendar year 2018, and failing to
provide a response to Occupation and Creditors for
his calendar year 2017 filing, as the deficiencies
were negligent in nature and corrected by amended
filing prior to the issuance of the Investigative
Complaint/Findings Report.
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.
The Investigative Division is not seeking the
assessment of any civil penalty concerning Sauder's
deficient Statement of Financial Interests filings,
inasmuch as he amended and corrected his filings
prior to the issuance of the Investigative
ComplaintlFindings Report.
Consent Agreement, at 2.
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We agree with the parties that no violation of Section 1103(a) of the Ethics Act, 65
Pa.C.S. § 1103(a), occurred in relation to Sauder's participation in discussions and
actions of the Board regarding the hiring/appointment of a Township Manager, because
at the time Sauder engaged in any action he had specifically declined to be considered a
candidate and did not possess a reasonable expectation that the general public and other
Township officials would subsequently seek his appointment as the Township Manager.
Per the Pennsylvania Supreme Court's decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violatction a of the
t i�T ics Act, a public official/public employee:
... must act in such a way as to put his [office/public position]
to the purpose of obtaining for himself a private pecuniary
benefit. Such directed action implies awareness on the part of
the [public official/public employee) of the potential pecuniary
benefit as well as the motivation to obtain that benefit for
himself.
Kistler, supra_, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
Act, a public official/public employee "must be consciously aware of a private pecuniary
benefit for himself, his family, or his business, and then must take action in the form of
one or more specific steps to attain that benefit." Id., 610 Pa. at 528, 22 A.3d at 231.
In this case, it is clear that when Respondent participated in his public capacity in
discussions and actions regarding the Township Manager position, he was not seeking
the position, had concerns that he was not qualified for the position, and had specifically
declined to be considered for the position.
We hold that no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. §
1103(a), occurred in relation to Sauder's participation in discussions and actions of the
Board regarding the hiring/appointment of a Township Manager, as at the time he
engaged in any action he had specifically declined to be considered a candidate and did
not possess a reasonable expectation that the general public and other Township officials
would subsequently seek his appointment as the Township Manager.
We agree with the parties, and we hold, that a technical violation of Section(s)
1105(b)(1)(2)(4)(8) of the Ethics Act, 65 Pa.C.S. § 1105(b)(1)(2)(4)(8), occurred in relation
to Sauder cling deficient SFIs by failing to disclose his emplloyment with Gehman Feed
Mills upon SFIs filed for calendar years 2014 through 2018, failing to provide an address
for calendar years 2016 and 2018, failing to provide a response to "Creditors" and "Office
Status" for calendar year 2018, and failing to provide a response to "Occupation" and
"Creditors" for his calendar year 2017 filing, as the deficiencies were negligent in nature
and corrected by amended filings prior to the issuance of the Investigative
Complaint/Findings Report.
Inasmuch as Sauder amended and corrected his SFl filings prior to the issuance
of the Investigative Complaint/Findings Report in this matter, the Investigative Division is
not seeking the assessment of any civil penalty concerning Sauder's deficient SFI filings,
and no further action is warranted in this case.
We determine that the Consent Agreement submitted by the parties sets forth a
proper disposition for this case, based upon our review as reflected in the above analysis
and the totality of the facts and circumstances.
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a�gFT6
IV. CONCLUSIONS OF LAVA:
As a Member of the Board of Supervisors ("Board") of East Earl Township
("Township"), Lancaster County, from January 5, 2015, until his resignation
effective January 6, 2019, and as the Township Manager since January7, 2019,
Respondent Justin Sauder ("Sauder") has been a public official public employee
subject to the provisions of the Public Official and Employee Ethics Act ("Ethics
Act), 65 Pa.C.S. § 1101 et seq.
2. Sauder did not violate Section 1103(a) of the Ethics Act ("Ethics Act"), 65 Pa.C.S.
§ 1103(a), in relation to his participation in discussions and actions of the Board
regarding the hiring/appointment of a Township Manager, as at the time he
en ga ed in any action he had specifically declined to be considered a candidate
and did not possess a reasonable expectation that the general public and other
Township officials would subsequently seek his appointment as the Township
Manager.
3. A technical violation of Section(s) 1105(b)(1)(2)(4)(8) of the Ethics Act, 65 Pa.C.S.
1105(b)(1)(2)(4)(8), occurred in relation to Sauder filing deficient Statements of
Financial Interests by failing to disclose his employment with Gehman Feed Mills
upon Statements of Financial Interests filed for calendar years 2014 through 2018,
failing to provide an address for calendar years 2016 and 2018, failing to provide
a response to "Creditors" and "Office Status" for calendar year 2018, and failing to
provide a response to "Occupation" and "Creditors" for his calendar year 2017
filing, as the deficiencies were ne iigent in nature and corrected by amended filings
prior to the issuance of the Investigative Complaint/Findings Report.
4. Inasmuch as Sauder amended and corrected his Statement of Financial Interests
filings prior to the issuance of the Investigative Complaint/Findings Report in this
matter, the Investigative Division is not seeking the assessment off any civil penalty
concerning Sauder's deficient Statement of Financial Interests filings, and no
further action is warranted in this case.
In Re: Justin Sauder, File Docket: 19-027
Respondent Date Decided: 6/22/20
Date Mailed: 7/1/20
ORDER NO. 1774
1. Justin Sauder ("SauderI'), a public official/public employee in his capacities as a
Member of the Board of Supervisors ("Board") of East Earl Township "Township'
Lancaster County, from January 5, 2015, until his resignation effective Janua,
2019, and as the Township Manager siry 6nce January 7, 2019, did not violate Section
11 03a of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa-C.S. §
1103(a), in relation to his participation in discussions and actions of the Board
regarding the hiring/appointment of a Township Manager, as at the time he
d engagein any action he had specifically declined to be considered a candidate
and did not possess a reasonable expectation that the general public and other
Township officials would subsequently seek his appointment as the Township
Manager.
2. A technical violation of Section(s) 1105(b)(1)(2)(4)(8) of the Ethics Act, 65 Pa.C.S.
1105(b)(1}}(2)(4)(8), occurred in relation to Sauder filing deficient Statements of
inancial Interests by failing to disclose his employment with Gehman Feed Mills
upon Statements of Financial Interests filed for calendar years 2014 through 2018,
failing to provide an address for calendar years 2016 and 2018, failing to provide
a response to "Creditors" and "Office Status" for calendar year 2018, and failing to
provide a response to "Occupation" and "Creditors" for his calendar year 2017
filing, as the deficiencies were negligent in nature and corrected by amended filings
prior to the issuance of the Investigative Complaint/Findings Report.
3. Inasmuch as Sauder amended and corrected his Statement of Financial Interests
filings prior to the issuance of the Investigative Complaint/Findings Report in this
matter, the Investigative Division is not seeking the assessment of any civil penalty
concerning Sauder's deficient Statement of Financial Interests filings, and no
further action shall be taken in this case.
BY THE COMMISSIOR,
0 1
IT61 F=