Loading...
HomeMy WebLinkAbout1774 Sauders- PHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 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 Saucier, 19-027 a�7 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. Sauder, 19-027 aka 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. Sauder, 19-027 a�gi-4 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 Sauder, 19-027 Page 5 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. Sauder, 19-027 Page 6 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. Sauder, 19-027 Page 7 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 Sauder, 19-027 aP� 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 Sauder, 19-027 aP ge- -9 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. Sauder, 19-027 a�—e TO 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 Sauder, 19-027 alage11 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. Saucier, 19-027 aF' ge—T2 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). Sauder, 19-027 a�—a T3 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). Sauder, 19-027 ai age—f' 4 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. Sauder, 19-027 aagg—e- T5 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. Sauder, 19-027 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=