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In Re: John P. Sivick,
Respondent
STATE ETHICS COMMISSION
FINANCE BUILDING
1AMIrge-g-1
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Date Decided
Date Mailed:
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16-001
Order No. 1731-2
2/3/21
2/25/21
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Ro er Nick
Mey'anie 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 re arding possible violation(s) of the Public Official and Employee Ethics
Act ("Ethics Act"), Pa.C.S. § 1101 et se,q., by the above -named Respondent. At the
commencement of its investigation, the Fn—vestigative Division served upon Respondent
written notice of the specific allegations. Upon completion of its investigation, the
Investigative Division issued and served upon Respondent a Findings Report identified
as an 'Investigative Complaint."" An Answer to the Investigative Complaint was filed by
Respondent. A Stipulated was filed by the parties in lieu of an evidentiary hearing
in this matter, and the parties filed briefs.
In Sivick, Order No. 1731, issued February 8, 2018, this Commission held, in
pertinent part, fhat Respondent violated Section 1 103(a) of the Ethics Act (pertaining t
conflict of interest). Three actions taken by Respondent were cited to support the fending
of a Section 1103(a) violation. Respondent was ordered to make payment of restitution
in the amount of $30,000.00 to the Commonwealth of Penns lvania. This Commission
also held that Sivick violated Sections 11 05(a and 111 05(b)(51� of the Ethics Act, but did
not violate Section 11 04(a) of the Ethics Act, Ven he filed timely but deficient Statements
of Financial Interests for calendar years 2011 and 2014.
On appeal, the Commonwealth Court affirmed this Commission's Order. See,
Sivick v. State Ethics Commission, 202 A.3,d 814 (Pa. Cmwlth. 2019). However, in S—WR
v. State Ethics Commission, Pa. 1 238 A.3d 1250 (2020), the PeninsyTv—ania
S—upreme Court concluded that one of t6 three actions taken by Res ondent did not
support a finding of a violation of Section 11 03(a) of the Ethics Act. The Court further
concluded that the Commission did not have the authority to order restitution under the
facts of this case. The Court stated that it was not clear from the Commission's Order
whether there were three separate bases for the Section 11 03(a) violation or whether the
violation was based upon aggreating the cited wrongdoing into one course of conduct.
Since the Court had determined that one of Respondent's three actions, did not support a
Section 1103(a) violation, the Court reversed the decision of the Commonwealth Court
and vacated Sivick, Order No. 1731. The Court, remanded this matter to the Commission
to determine wFe—ther the other two actions taken by Respondent violated Section 11 03�a)
of the Ethics Act, and if so, to consider the imposition of any sanction available under t e
[Ethics) Act." Sivick, _ Pa. at _, 238 A.2d' at 1266.
On remand, the parties filed briefs and presented oral argument. The record is
complete.
Sivick, 16-001
Tya—g e-2
ALLEGATIONS:
That John P. Sivick, a public official/public employee, in his capacity as a
Su!4('dv.o01r'105(a),
eisfor Lehman Township, Pike County, violated Sections 1103(a), 1104(a),
) and 1105(b)(5) ofthe State EthicsAct(Act93of 1998)when he utilized
thauthhity of his public position for the private pecuniary benefit of himself and/or a
member of his immediate family by participating in discussions and actions of the
Township Board of Supervisors to eliminate a Township employment provision prohibiting
nepotism with the intent of hiring his son as a Township employee; when he discussed,
recommended, lobbied, influenced, and/or sought the support of the Board of Supervisors
to effectuate the hiring of his son as a Township employee; when he verified Township
records enabling and/or otherwise directing the payment of salary/wage to his son from
public monies'; and when he filed a deficient Statement of Financial Interests by failing
to identify his Governmental Entity and Income received from the Township on 2011
calendar year Statement of Financial Interests, and failed to identify a calendar year on
his Statement of Financial Interests filed for the 2014 calendar year.
IL FINDINGS:
A. General Stipulations
On November 30, 2015, the Investigative Division of the State Ethics Commission
received a signed, sworn complaint alleging that John P. Sivick violated provisions
of the State Ethics Act (Act 93 of 1998).
After reviewing the sworn complaint, the Investigative Division initiated a
preliminary inquiry on January 19, 2016.
Under 51 Pa. Code § 21.3(ah
a preliminary inquiry must be terminated or opened
as a full investigation within days of the initiation thereof.
a. The preliminary inquiry was completed within sixty days from
initiation of the preliminary inquiry. (See, 65 Pa.C.S. § 1108(a)).
b. The Commission, throu h the Executive Director, initiated a full
investigation on March 17, 201T
On March 17, 2016, a letter was forwarded to John P. Sivick, by the Investigative
Division of the State Ethics Commission, informing him that a complaint against
him was received by the Investigative Division and that a full investigation was
being commenced. (See, 65 Pa.t.S. § 1108(c)).
Said letter was addressed to John P. Sivick at [address redacted] and was
forwarded by certified mail no. 7011 0470 0002 7997 2138.
The domestic return receipt contained an incorrect name of Jason P. Sivick;
however, the envelope was addressed with the correct name of John P.
Sivick and the correct address of [address redacted].
With respect to this portion of the allegations, in Sivick, suM, the Pennsylvania Supreme Court
determined that Sivick's actions, in his capacity as the 'Township Public Works Director, of reviewing and
approving his son's Township oa roll records fell within the class/subclass exclusion to the Ethics Act's
definition of "conflict" or "conflict of interest," 65 Pa.C.S. § 1102. The Court reasoned that in reviewing and
approving payroll records for a subclass of Township employees that included his son, Sivick was
performing an administrative or ministerial act entailing little or no discretion that applied collectively and
equally to the subclass of Township employees. The Court noted that there was no suggestion that Sivick
had given his son preferential treatment when reviewing and approving Township pal retards. As a
result of the Court's determination that the class/subclass exclusion applied to Sivick's action, this portion
of the allegations is no longer before us.
Sivick, 16-001
'age3
C. The domestic return receipt was signed by Respondent John P. Sivick on
March 21, 2017.
5. On September 1, 2016, an amended Notice of Investigation was forwarded to John
P. Sivick by the Investigative Division of the State Ethics Commission informing
him that the allegations contained in the March 17, 2016, Notice of Investigation
were being amended.
a. Said letter was forwarded by certified mail, no. 7011 0470 0002 7996 5765.
b. The domestic return receipt was signed by Respondent John P. Sivick on
September 6, 2016.
6. Periodic notice letters were forwarded to John P. Sivick at least every ninety days
in accordance with the provisions of the Ethics Act advising him of the general
status of the investigation (See, 65 Pa.C.S. § 1108(c)).
7. The Investigative Complaint/Findings Report was mailed to the Respondent on
September 13, 2016.
a. The Investigative Complaint/Findings Report was issued within 180
days of the initiation of a full investigation (see, 65 Pa.C.S. § 1108(c)).
8. John P. Sivick has served as a Lehman Township ("Township") Supervisor since
January 1994.
a. Sivick has served as the Chairman of the Township Board of Supervisors
since January 2004.
b. Sivick served as the Vice Chairman of the Board of Supervisors for calendar
years 1994 through 2003.
C. Sivick was initially appointed as the Roadmaster by the Board of
Supervisors at the Township Reorganizational meeting in January 1995.
1. Sivick has been reappointed as the Roadmaster by the Board
of Supervisors at the Reorganizational meetings from 1995 until
sometime after 2005, at which time the Board of Supervisors
assigned to him the additional responsibilities of Public Works
Director.
2. The position of Public Works Director is a public employment
position.
9. J. Justin Sivick is the son (child) and immediate family member of Respondent,
John P. Sivick.
a. J. Justin Sivick is often referred to as "Jay" as a nickname and/or way of
distinguishing J. Justin Sivick from his father, John P. Sivick (Respondent).
b. J. Justin Sivick resides at [address redacted].
1. Respondent and his wife, Ann Sivick, maintain ownership of
the home.
10. Lehman Township (hereafter [also referred to as] "Township"), Pike Countyy,
Pennsylvania is a township of the second class and is governed by a three (3)
Sivick, 16-001
p7a-g e 4
Member Board of Supervisors.
a. Lehman Township Supervisors receive $3,250.00 gross annually,
paid in twelve equal installments, for services rendered in their elected
Supervisor/public official capacity.
b. In accordance with the Second Class Township Code, any Supervisor that
is employed with the Township must have a working Supervisor wage
established by the Township Board of Auditors.
11. The Township holds, at least, one regularly scheduled legislative meeting per
month.
a. Generally, the first Township meeting of each calendar year is the
Township Reorganizational meeting.
1. At the Reorganizational meeting, Township public officials are
appointed and/or reappointed in their respective officer positions.
Frequently, but not exclusively, at the Reorganizational meeting, the
Township Board of Supervisors may vote on whether or not to
authorize a pay increase for Township employees.
aa. Notwithstanding the foregoing, pay rates and increases
for Township employees who are also elected Township
Supervisors, also known as "working Supervisors," are
determined by the Township Board of Auditors at the first
Township Board of Auditors meeting of each calendar year.
bb. For the years preceding and during the Township's
employment of J. Justin Sivick, a motion has been regularly
made during [the] Reorganization meeting to "authorize the
secretary/treasurer to pay salaries, postage, and meeting pay
as necessary." During the years 2013 through 2016, this
motion was approved unanimously by the entire three -
Member Board of Supervisors.
cc. For the years preceding and during the Township's
employment of J. Justin Sivick, a motion has been regularly
made during [the] Reorganization meeting to "set new hourly
rates (on file) that begin" January 1 of the then fiscal ear.
The only exception was during the January 4, 2016,
Reorganization meeting where the motion was made "to set
new salaries." During the years 2013 through 2016, this
motion was approved unanimously by the entire three -
Member Board of Supervisors.
dd. For the years preceding and during the Township's
employment of J. Justin Sivick, a motion has been regularly
made during [the] Reorganization meeting to approve the
employee benefits and information. During the years 2013
through 2016, this motion was approved unanimously by the
entire three -Member Board of Supervisors.
The Township holds special meetings as necessary.
12. Prior to the traditional legislative meetings which frequently occurred twice per
month during the period of 2013-2016, the Supervisors received a meeting packet
Sivick, 16-001
P—age 5
that consisted] of the upcoming meeting agenda, a written copy of the prior
month's meeting minutes, and a Treasurers report.
a. The meeting agendas are prepared by the Township Secretary.
b. The Treasurer's report includes a list of the Township's monthly expenses.
1. One of the itemized expenses in the Treasurer's report
is shown as "employee payroll" in which the grand total of all
compensation to be paid to employees is shown. The names of
individual employees and the amounts to be paid to each employee
are not shown.
aa. The Township issues pay to its
appproximate thirteen (13) employees on a biweekly basis,
[a]Imost all of whom, including Respondent (John P. Sivick)
and his son (J. Justin Sivick), are paid through direct deposit.
Nine (9) of these thirteen (13) employees are assigned to the
road crew.
13. Typically, voting during a Township meeting occurs in group "aye/nay" fashion after
a motion is made and properly seconded.
a. Typically, any abstentions or objections made during the vote are
specifically noted in the minutes.
b. Frequently, minutes of each meeting are approved at the subsequent
meeting.
14. To the extent the employee payroll was on a legislative agenda, the vote taken at
each legislative meeting to approve the bills included the approval of employee
payroll.
a. The Township utilizes a pay calendar which consists of twenty-six
(26) separate pay periods within a given calendar year.
Each of the pay periods is fourteen (14) days in length.
2. Each pay period begins on the Sunday of the first week
and ends on the Saturday of the second week.
3. Votes to approve payroll occurred during the following
periods as follows:
aa. 2013: 22 times, for which 13 times J.
Justin Sivick was a Township employee;
bb. 2014: 24 times during all of which J.
Justin Sivick was a Township employee;
cc. 2015: 24 times during all of which J.
Justin Sivick was a Township employee;
dd. 2016 (through July 6): 13 times during all
of which J. Justin Sivick was a Township employee.
Respondent was absent from the May 18, 2016, meeting.
b. The Township employees receive pay on the Wednesday following
Sivick, 16-001
Tyage 6
the pay period.
15. Since January 2012, the Township Board of Supervisors has consisted of the
following individuals (other than Respondent):
a. Richard C. Vollmer ("Vollmer")
1. Vollmer is in his third term as a Supervisor.
2. Vollmer began his service as a Township Supervisor on July 5,
2000.2
3. Vollmer has served as Board Vice Chairman since January 2004.
4. Vollmer was appointed and employed by the Township as the
Sewage Enforcement Officer and Building Code Official from
September 3, 2002, to September 22, 2010.
aa. Vollmer was appointed in these positions for
calendar years 2011, 2012, and 2013, but collected workers
compensation benefits during those years.
b. Robert H. Rohner, Jr. ("Rohner")
1. Rohner is in his first term as a Supervisor.
2. Rohner began his service as a Township Supervisor in
January 2014.
3. Rohner was initially appointed as the Township
Secretary/Treasurer in October 1995.
aa. Rohner was reappointed as the Township
Secretary/Treasurer for each calendar year following his initial
appointment.
4. Rohner is also employed full-time by the Township as the
Office Manager.
aa. The position of Office Manager coincides with
the publicly appointed positions of Secretary/Treasurer.
bb. Rohner has held this employment position since
October 1995.
C. Paul D. Menditto, Sr. ("Menditto")
1. Menditto served as a Supervisor from January 2004 through
January 2014.
2. Menditto resigned from his position as Supervisor following
his election as a Magisterial District Justice for District 60-3-04.
3. Menditto was employed full-time by the Township as a road
crew laborer prior to his resignation.
2 Cf., Fact Finding 35 a.
Sivick, 16-001
Tape 7
aa. Menditto had also been appointed as the
Township Assistant Roadmaster prior to his resignation.
16. The Township consists of the Administrative Office, Building and Zoning Office,
and Public Works Department.
a. All applicants are available to be interviewed by each Supervisor,
regardless of the position being applied for.
17. The Township Public Works/road crew employees are held to a forty (40) hour
workweek consisting of five (5) eight (8) hour workdays.
a. The road crew employees' standard workweek begins on Monday and ends
on Friday.
18. The Township maintains an employee handbook applicable to all of the Township
full-time and part-time employees.
a. The employee handbook contains rules, regulations, and guidelines set
forth by the Township Board of Supervisors.
b. Prior to 2009, the Township had previously had a three (3) page employee
pamphlet.
1. Menditto developed a more detailed Township employee
handbook in 2009.
2. The Township employee handbook has undergone additional
revisions and enhancements subsequent to 2009.
19. The original employee pamphlet (pre-2009) did not include a Nepotism Policy.
a. The handbook completed by Menditto in 2009 contained a Nepotism
Policy which provided as follows:
No person shall be hired by Lehman Township in a full-
time, permanent position where the person shall supervise or be
supervised by a member of the person's immediate family. This
prohibition applies to supervision at any level, whether immediate or
through subordinate supervisors, and applies to any situation where
control or direction of the relative's work covered cause a conflict of
interest. Immediate family is defined as one's spouse, parent, son
or daughter, sister or brother, grandparent or grandchild. If any
employees become related by marriage after employment, Lehman
Township shall attempt to rearrange supervisory responsibilities so
as to remove any potential conflict. If such an arranggement cannot
be reached, the employees involved shall be given the opportunity
to resolve the conflict through resignation. If this cannot be done,
Lehman Township reserves the right to resolve the conflict through
termination of one of the employees.
b. The Township Board of Supervisors voted in favor of adopting the
handbook written by Menditto in 2009.
1. Respondent, as a Township Supervisor, voted in favor
of approving/enacting the employee handbook, including the
Nepotism Policy.
Sivick, 16-001
Tsage 8
20. In late 2012, Respondent verbalized his interest in his son, J. Justin Sivick,
potentially working for the Township to his fellow elected Supervisors in one-on-
one meetings which were not advertised meetings of the Board. During these
discussions, each of the Supervisors, including Respondent, recognized that the
Nepotism Policy would need to be removed from the employee handbook.
21. The Township employee handbook was revised, effective by vote at the January
7, 2013, Township Reorganizational meeting, so that the Nepotism Policy was
removed.
a. During the January 7, 2013, Reorganizational meeting, Menditto
motioned to approve the "employee benefits and information," which
included the newly --revised Township employee handbook from which the
Nepotism Policy had been removed.
Vollmer seconded the motion.
C. Respondent abstained as instructed by Solicitor Robert Bernathy.
1. Respondent was instructed to abstain due to the
change to the employee handbook, which would later allow the hiring
of J. Justin Sivick.
2. The vote to remove the Nepotism Policy was approved
by Supervisors Vollmer and Menditto, with Respondent abstaining.
22. Respondent, as Roadmaster, bore responsibility for coordinating scheduled
training and classes for Township road crew employees.
23. A traffic control flagger training course was sponsored by the Pennsylvania State
Association of Township Supervisors on March 21, 2013, from 1:00 p.m. to 4:00
p.m. at the American Legion located at 107 Ball Park Road, Dingmans Ferry, PA
18328.
a. This course is mandated by the Pennsylvania Department of
Transportation ("PennDOT") for individuals who may be required to perform
flagger duties during the course of their employment.
b. The Township, by and through Township Secretary -Treasurer
Robert Rohner who initialed the form, submitted a registration form dated
March 20, 2013, and a check of the same date for $300 payable to the
course sponsor naming the following six individuals as attendees for this
specific course, namely Vincent Lopez, Paul Menditto, Aaron Springs, Bill
Duffy, Walter Conza, and J. Justin Sivick. According to the registration
materials, the cost of attendance for each attendee was $50.00.
Respondent, as Roadmaster, was familiar with and approved the list of
attendees for the course.
C. J. Justin Sivick had not submitted an application for employment with
the Township at this time.
d. The same day, i.e., March 20, 2013, Respondent submitted a
personal check drawn on his own account and signed by him in the amount
of $50.00 to Lehman Township, with "Flagging Class" appearing in the
sub'ect line. This check was deposited on March 22, 2013, into an account
hO by the Lehman Township Board of Supervisors at PNC Bank.
24. The Township does not utilize advertisements for open employment positions.
Sivick, 16-001
P age-9
25. J. Justin Sivick formally initiated his candidacy for employment by completing an
application with the Township dated June 3, 2013.
a. The application was received by the Township and kept with his
employment file. [The application and supporting materials received from
J. Justin Sivick are included in the Stipulated Record at 85-89.]
1. The position listed on J. Justin Sivick's application was
"public works maintenance."
2. The application form utilized by the Township for
employment candidates contains a question that asks if the applicant
has any friends or relatives, other than the applicant's spouse, who
are employed by the Township.
aa. J. Justin Sivick checked the box labeled
"Yes" but did not specify the name, relationship, or position of
his father, Respondent, John P. Sivick.
3. The application form utilized by the Township for
employment candidates contains a section which asks for any
specialized training, apprenticeships, or other job -related skills.
26. J. Justin Sivick began employment with the Township effective June 10, 2013.
a. Township meeting minutes do not record any official vote of the
Board of Supervisors approving the hiring of Respondent's son.
b. Township records confirm there were five separate Townshi Board
of Supervisors meetings held during June 2013: June 4, June 5, Tune 11,
June 19, and June 25.
C. None of the minutes from any of those five (5) public meetings reflect
any discussion or vote regarding the hiring of J. Justin Sivick,
27. J. Justin Sivick's initial pay rate upon hire in June 2013 was $15.00 per hour for
regular work hours and $22.50 per hour for overtime.
a. J. Justin Sivick's pay rates for each of his subsequent years of
employment in his position as a Township road crew laborer may be found
in the chart below:
Regular Hourly Rate
Overtime Hourly Rate
2014
$16.20
$24.30
2015
$17.45
$26.18
2016
$18.20
$27.30
28. Township Office Manager Rohner is responsible for issuing wage/salary to the
Township em to ees using direct deposit and paychecks, depending upon the
employee. Most employees are paid through direct deposit, including but not
limitedyto Respondent (John P. Sivick) and his son (J. Justin Sivick).
a. Rohner issues such payments for the Township employees as part
of his Treasurer duties.
b. For the nine road crew employees, payments are based on
timesheets. The timesheets are filled out by those employees and then
Sivick, 16-001
Page 10
given by the employees to Public Works Director John P. Sivick, who then
examines the same for accuracy and completeness and then passes the
same along for additional checking by the administrative secretary and
Secretary/Treasurer.
29. John P. Sivick compares all road crew employee timesheets for accuracy based
on information he maintains in a personal planner.
a. The information contained in his planner includes the hours worked
by individual road crew employees for each workday, information regarding
sick days or vacation time utilized by any of the road crew employees, and
tasks assigned to specific road crew employees.
b. Upon completion of all road crew employees' timesheets, John P.
Sivick signs/verifies the timesheets and forwards them on as described
above.
30. From the pay period beginning on June 2, 2013, until the pay period ending on
July 9, 2016, J. Justin Sivick has received ppay from the Township during eighty-
one (81) separate pay periods, with a timesheet accompanying each pay period.
a. Each pay is disbursed only after a signature has been made on the
employee's timesheet.
b. John P. Sivick signed seventy-nine (79) of J. Justin Sivick's
timesheets.
C. From the pay period beginning on June 2, 20'13, until the pay period
ending on July 9, 016, J. Justin Sivick has received a total gross pay of
$126, 952.24.
1. The total net pay for this same timeframe is $87,949.36.
31. J. Justin Sivick's employment with the Township was terminated effective June 30,
2016.
32. Respondent timely filed Statements of Financial Interests for calendar years 2011
through 2015 with the Township.
a. Respondent's 2011 and 2014 calendar year Statements of Financial
Interes s are included in the Stipulated Record at 91-96.]
B. Stipulations Regarding Testimony
33. If called as a witness before this Commission to provide testimony in this matter,
Rohner would testify under oath to the following (based upon a deposition given
on April 7, 2016):
a. Rohner has served as Township Secretary/Treasurer since October 1995.
b. In the fall of 2012, while Rohner was serving as Township
Secretary/Treasurer but was not yet a Supervisor, Respondent John P.
Sivick told Rohner that he wanted to hire his son, J. Justin Sivick, and that
the Nepotism Policy was being taken out of the Township employee
handbook so that his son, J. Justin Sivick, could be hired.
Sivick, 16-001
P—age 11
1. Rohner stated that at that time, Respondent John P.
Sivick was the Township Supervisor who primarily ran things at the
Township, and if he wanted things done they got done.
C. The Township employee handbook was officially revised in January
of 2013.
1. Respondent John P. Sivick abstained from the January
2013 vote of the Township Board of Supervisors to revise the
employee handbook because the Nepotism Policy was being
removed and the Township was going to hire his son.
d. J. Justin Sivick's employment with the Township began around June
2013.
e. The employment position filled by J. Justin Sivick was not advertised.
f. Rohner stated that the starting pay rate for J. Justin Sivick was the
same as that for any new Township employee.
g. J. Justin Sivick attended a flagger course before he was hired by the
Township.
h. Township payroll checks are direct deposited into the employees'
accounts.
34. If called as a witness before this Commission to provide testimonyin this matter,
the Honorable Paul D. Menditto, Sr. (also referred to herein as "Judge Menditto"
and "Menditto") would testify under oath to the following (based upon a deposition
given on April 7, 2016):
a. Judge Menditto is currently a Magisterial District Judge in Pike
County, District 60-3-04.
b. Prior to serving as a Judge, Menditto served as a Township
Supervisor for Lehman Township from January 2004 until January 2014.
C. In 2013, the Township Supervisors serving with Menditto were
Respondent John P. Sivick and Vollmer.
d. To Menditto's knowledge, there was no formal hiring process at the
Township during the entire time he served as a Township Supervisor, but
rather, Respondent John P. Sivick did all of the hiring.
e. John P. Sivick approached Menditto and stated that he wanted to
hire his son (J. Justin Sivick).
1. This occurred prior to any vote to hire J. Justin Sivick.
f. Menditto stated that the only Township employee hired by a vote was
J. Justin Sivick.
1. Menditto stated that he and Vollmer voted in favor of
hiring J. Justin Sivick, and Respondent John P. Sivick abstained from
the vote.
gg J. Justin Sivick attended a flagger training course prior to being hired
by the Township in June of 2013.
Sivick, 16-001
'image 12
h. Menditto wrote most of the Township employee manual/handbook
that existed in 2012-2013.
i. The Township's employee handbook as Menditto initially wrote it
contained a Nepotism Policy,
�andbook,
Generally, when changes were made to the Township employee
Menditto developed an "errata sheet" stating what was being
changed, and Menditto would then distribute the revised employee
handbook together with the errata sheet so that everyone would know what
the changes were.
k. When the Nepotism Policy was removed from the Township
employee handbook, the Supervisors discussed the removal in a casual
conversation at the Township building and agreed to remove the Nepotism
Policy from the employee handbook, but Respondent John P. Sivick told
Menditto to not make an errata sheet.
1. Although the Township employee handbook referred to an Office
Manager, the Township did not actually have an Office Manager.
1. Rohner, whose title was Secretary/Treasurer, would
have been the de facto Office Manager.
M. Rohner took Menditto's place as a Township Supervisor.
n. Starting salaries for new hires at the Township were set based upon
surveys by the Pennsylvania State Association of Township Supervisors.
35. If called as a witness before this Commission to provide testimonyin this matter,
Vollmer would testify under oath to the following (based upon a deposition given
on May 3, 2016):
a. Vollmer is a Lehman Township Supervisor, having served in that
capacity for 10 years.3
b. Respondent John P. Sivick has served as a Township Supervisor
during the entire time that Vollmer has served as a Township Supervisor.
C. Hirings for the Township road crew were generally made based upon
recommendations of Respondent John P. Sivick.
d. In late 2012 Respondent John P. Sivick told Vollmer that he would
like to someday maybe have his son, J. Justin Sivick, work at the Township.
1. Vollmer questioned Respondent as to whether it would
be a good idea for J. Justin Sivick to work at the Township, and
Vollmer raised with Respondent various concerns about hiring
Respondent's son.
2. Vollmer stated that Respondent John P. Sivick "pled
his case ... about seeing his son get a chance." (Stipulated Record,
at 75, lines 23-24).
3 Cf., Fact Finding 15 a(2).
Sivick, 16-001
T55gee 13
3. After further discussion, Vollmer mentioned the employee handbook
and Respondent John P. Sivick stated, "...we're going to have to
change the book then." (Stipulated Record, at 69, lines 6-7).
4. Vollmer then agreed and said, "okay we'll change the
book." (Stipulated Record, at 69, line 7).
e. When the Township employee handbook was re -written to remove the
Nepotism Policy, the Supervisors —including Respondent John P. Sivick--
met to discuss the change(s). Menditto then made the change(s), the other
Supervisors read it, it was given to the Solicitor to review, and finally the
Supervisors voted on it with John P. Sivick abstaining from the vote.
f. The Township employee handbook was changed at the Reorganizational
meeting in January 2013.
g. Six months after the January 2013 Reorganizational meeting, Respondent
John P. Sivick again asked if it would be alright if he brought his son in to
be a Township employee.
h. Vollmer stated that he asked Township Solicitor Robert Bernathy if it was
legal to hire Respondent's son, and Solicitor Bernathy said "yes it's perfectly
legal he can do that." (Stipulated Record, at 70, lines 5-21).
Vollmer asked Respondent John P. Sivick if J. Justin Sivick had
qualifications for the Township position, and Respondent John P. Sivick told
Vollmer that J. Justin Sivick did have qualifications for the position.
1. John P. Sivick relayed to Vollmer J. Justin Sivick's
qualifications to work for the Township, including being able to drive,
having a license, being able to drive a truck, and having some
experience with some of the heavy equipment.
j. Respondent John P. Sivick did not participate in a vote to hire J. Justin
Sivick.
1. Vollmer stated that in June 2013, he and the other Supervisor
(Menditto) voted to approve hiring J. Justin Sivick and John P. Sivick
abstained from the vote.
k. Respondent John P. Sivick was responsible for the decision to send
members of the Township road crew to flag training school.
1. Vollmer was not aware that J. Justin Sivick went to a flag
training school before he was hired by the Township.
Vollmer stated that there is a minimum beginning pay rate for a Township
employee.
M. Respondent John P. Sivick was responsible for keeping track of the hours
worked by each Township road crew employee.
36. If called as a witness before this Commission to provide testimony in this matter,
Robert F. Bernathy, Esquire ("Bernathy") would testify under oath to the following
(based upon a deposition given on May 16, 2016):
a. Bernathy is the Solicitor for Lehman Township, having served in that
capacity for approximately 20 years.
Sivick, 16-001
lyage 14
b. Bernathy directed John P. Sivick to not participate whatsoever in the hiring
of J. Justin Sivick. (Stipulated Record, at 79-80).
C. Other Findings
37, J. Justin Sivick was registered by Lehman Townshipp to take the Flagger Training
Course on March 21, 2013. (Stipulated Record, at 81-82).
a. The cost to the Township for six individuals, including J. Justin Sivick, to
take the Flagger Training Course was $300.00.
b. John P. Sivick issued to the Township personal check number 468 dated
March 20, 2013, in the amount of $50.00 for "Flagging Class." (Stipulated
Record, at 84).
38. J. Justin Sivick submitted to the Township an Application for Employment dated
June 3, 2013, for the position of "Public Works Maintenance." (Stipulated Record,
at 85-89).
39. John P. Sivick's Statement of Financial Interests for calendar year 2011, which is
in the Stipulated Record at 93, is deficient in blocks 5 and 10.
a. Block 5, requiring disclosure of the governmental entity served by John P.
Sivick, was not completed.
b. Block 10, requirin disclosure of any direct/indirect source of income totaling
in the aggregate 91,300 or more, did not identify the Township as a source
of income.
C. In Block 4 and 6 of this form, Respondent disclosed his positions as
Township Supervisor, Roadmaster, and Public Works Director.
40. John P. Sivick's Statement of Financial Interests dated March 30, 2015, ostensibly
for calendar year 2014, which is in the Stipulated Record at 96, is deficient in block
7.
a. Block 7, requiring disclosure of the calendar year for which the form was
being filed, was not completed.
41. The Stipulated Record at 98-476 consists of copies of the public meeting minutes
of the Lehman Township Board of Supervisors from January 7, 2013, through July
12, 2016.
a. The public meeting minutes of the Lehman Township Board of
Supervisors do not include any recorded vote to hire J. Justin Sivick.
42, The Stipulated Record at 98-103 consists of a copy of the minutes of the January
7, 2013, Reorganization meeting of the Lehman Township Board of Supervisors.
a. The three Township Supervisors serving in 2013 were Respondent
John P. Sivick, Vollmer, and Menditto.
b. Respondent John P. Sivick was reappointed Chairman of the Township
Board of Supervisors and Road master/Public Works Director for the
Township.
C. These minutes include the following:
Sivick, 16-001
P—age 15
APPROVE EMPLOYEE BENEFITS
AND INFOR-
Motion made by Mr. Menditto and second
of Mr. Vollmer to approve the employee benefits and
information. Mr. Sivick abstained.
(Stipulated Record, at 102).
d. These minutes do not indicate that the Township's employee
handbook had been amended to remove the Nepotism Policy.
43. Respondent John P. Sivick participated in the unanimous vote of the Township
Board of Supervisors to approve the minutes of the January 7, 2013,
Reorganization meeting of the Board of Supervisors. (Stipulated Record, at 106,
116).
44. The Stipulated Record at 219-224 consists of a copy of the minutes of the January
6, 2014, Reorganization meeting of the Lehman Township Board of Supervisors.
a. The three Township Supervisors serving in 2014 were Respondent
John P. Sivick, Vollmer, and Rohner, the latter of which was appointed at
the Reorganization meeting to complete Menditto's unexpired term.
b. Respondent John P. Sivick was reappointed Chairman of the Township
Board of Supervisors and Roadmaster/Public Works Director for the
Township.
45. The Stipulated Record at 327-332 consists of a copy of the minutes of the January
5, 2015, Reorganization meeting of the Lehman Township Board of Supervisors.
a. The three Township Supervisors serving in 2015 were Respondent
John P. Sivick, Vollmer, and Rohner.
b. Respondent John P. Sivick was reappointed Chairman of the Township
Board of Supervisors and Roadmaster/Public Works Director for the
Township.
46. The minutes of the December 22, 2015, public meeting of the Lehman Township
Board of Supervisors include the following:
EMPLOYEE RAISES FOR 2016:
After a short discussion a motion was made by Mr.
Vollmer and second of Mr. Rohner to grant all employees a
$0.75 per hour raise. Mr. Sivick agreed, but stated that he
was abstaining from voting on Justin Sivick's raise.
(Stipulated Record, at 428).
47. The Stipulated Record at 429-435 consists of a copy of the minutes of the January
4, 2016, Reorganization meeting of the Lehman Township Board of Supervisors.
a. The three Township Supervisors serving in 2016 were Respondent
John P. Sivick, Vollmer, and Rohner.
Sivick, 16-001
P—age 16
b. Respondent John P. Sivick was reappointed Chairman of the Township
Board of Supervisors and Roadmaster/Public Works Director for the
Township.
48. The minutes of the June 14, 2016, public meeting of the Lehman Township Board
of Supervisors include the following:
NEW BUSINESS:
1. PERSONNEL:
Motion made by Mr. Rohner and second of Mr. Vollmer
to suspend John Sivick as the township's road master and
public works director for 90 days with pay, pending the
outcome of the investigation by the State Ethics Commission,
and it will be reviewed at that time. Mr. Sivick abstained.
Motion made by Mr. Rohner and second of Mr. Vollmer
to appoint Edward Dickison as the road master and public
works director, and to appoint Timothy Rohner as the
foreman. Unanimous.
(Stipulated Record, at 469).
49. The minutes of the July 6, 2016, public meeting of the Lehman Township Board of
Supervisors include the following:
MISCELLANEOUS:
1. AN EXECUTIVE SESSION WAS HELD
ON JUNE 30TH AT 8:15 A.M. REGARDING
PERSONNEL:
Mr. Sivick wants it noted that he was not
notified of the Executive Session. Mr. Bernathy stated
that Mr. Rohner and Mr. Vollmer convened to discuss
a matter on which Mr. Sivick had previously recused
himself.
2. AN EXECUTIVE SESSION WAS HELD
ON JUNE 30TH AT 2:05 P.M. REGARDING
PERSONNEL:
Mr. Sivick wants it noted that he was not
notified of the Executive Session. Mr. Bernathy stated
that Mr. Rohner and Mr. Vollmer convened to discuss
a matter on which Mr. Sivick had previously recused
himself.
PERSONNEL:
Motion made by Mr. Rohner and second of Mr. Vollmer
to ratify the termination of Justin Sivick from the township's
employ on June 30, 2016. Mr. Sivick abstained.
Sivick, 16-001
Page 17
Mr. Rohner stated that this was the matter discussed at the
two (2) Executive Sessions held on June 301h.
(Stipulated Record, at 474-475).
50. Respondent John P. Sivick voted to approve employee payroll throughout J. Justin
Sivick's employment with the Township. (Stipulated Record, at 4-5 (paragraphs
12-14 b) and 162-476).
51. All nine or so Township road crew employees are assigned to the Township's
Public Works Department and are/were supervised by Respondent John P. Sivick
in his capacity as Director of Public Works. Initial Brief of Respondent Based on
Stipulated Record (hereinafter, 'Respondent's nitia rie , at 3, 5.
Ill. DISCUSSION:
As a Supervisor for Lehman Township ("Township"), Pike County, Pennsylvania,
since January 1994, John P. Sivick, also referred to herein as "Respondent," "Respondent
Sivick," "Respondent John P. Sivick," and "Sivick," has been a public official subject to
the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. §
1101 et seq.
On remand from the Pennsylvania Supreme Court, the remainin allegations
before us are that Respondent Sivick violated Sections 1103(a), 1104 a), 1'104(d),
1105(a), and 1105(b)(5) of the Ethics Act: (1) when he utilized the authority of his public
position for the private pecuniary benefit of himself andlor a member of his immediate
family b participating in discussions and actions of the Township Board of Supervisors
("Board' to eliminate a Township employment provision prohibiting nepotism with the
intent of hiring his son as a Township employee; (2) when he discussed, recommended,
lobbied, influenced, and/or sought the support of the Board to effectuate the hiring of his
son as a Township employee; and (3) when he filed a deficient Statement of Financial
Interests ("SFI") by failing to identify his Governmental Entity and Income received from
the Township on his 2011 calendar year SFI, and failed to identify a calendar year on his
SFI filed for the 2014 calendar year.
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 following terms are 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 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
Sivick, 16-001
rage 18
to the same degree a class consisting of the general public or
a subclass consisting of an industry, occupation or other
group which includes the public official or public employee, a
member of his immediate family or a business with which he
or a member of his immediate family is associated.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
"Immediate family." A parent, spouse, child, brother
or sister.
65 Pa.C.S. § 1102.
Section 1103(a) of the Ethics Act prohibits a public official/public employee from
using the authority of public officelemployment 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.
The use of authority of office is not limited merely to voting, but extends to any use
of authority of office including, but not limited to, discussing, conferring with others, and
lobbying for a particular result. Juliante, Order 809.
Per the Pennsyylvania Supreme Court's decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of t e
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
ct, a public Aofficial/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.
Section 1104(a) of the Ethics Act provides that each public official/public employee
must file an SFI for the preceding calendar year, each year that he holds the position and
the year after he leaves it.
Section 1104(d of the Ethics Act provides that no public official shall be allowed
to take the oath of o ice, or enter or continue upon his duties, nor shall he receive
compensation from public funds, unless he has filed an SFI as required by the Ethics Act.
Section 1105(a) of the Ethics Act provides that the SFI shall be filed on the form
prescribed by this Commission, that all information requested on the form shall be
provided to the best of the knowledge, information and belief of the filer; and that the form
shall be signed under oath or equivalent affirmation.
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.
Sivick, 16-001
la 19
Subject to certain statutory exceptions not applicable to this matter, Section
1105(b)(5) of the Ethics Act requires the filer to disclose on the SFI the name and address
of any direct or indirect source of income totaling in the aggregate $1,300 or more.
Having set forth the relevant provisions of the Ethics Act, we first conclude that the
procedural requirements of the Ethics Act were met in this case. See, Fact Findings 1-7
a; Res ondent's Initial Brief, at 1; Closin Statement and Brief —of the Investigative
Division, at e s aff now summarize the relevant facts.
The Board consists of three Supervisors. Township Supervisors receive $3,250.00
gross annually for services rendered in their elected Supervisor/public official capacity.
Respondent Sivick has served as a Township Supervisor since January 1994.
Respondent has served as Chairman of the Board since January 2004.
During the relevant time period, the Board has consisted of the following
individuals in addition to Respondent. (1) Richard C. Vollmer ("Vollmer"), who was serving
as a Township Supervisor by at least 2006; (2) Paul D. Menditto, Sr. ("Menditto"), who
served as a Supervisor from January 2004 through January 2014 at which time he
resigned to take office as a Magisterial District Judge; and (3) Robert H. Rohner, Jr.
("Rohner"), who has served as the Township Secretary/Treasurer since October 1995
and began service as a Township Supervisor in January 2014 to complete Menditto's
term.
In addition to serving as a Township Supervisor, Respondent served as Township
Roadmaster beginning January 1995 and as Township Public Works Director beginning
sometime after 2005. Respondent was reapppointed to both positions at the Board's
Reorganizational meetings in 2013, 2014, 2015, and 2016. On June 14, 2016,
Respondent was suspended from serving in these positions for 90 days, pending the
outcome of the Investigative Division's investigation as to Respondent.
The Township's road crew employees are assigned to the Township's Public
Works Department and are supervised by the Township Public Works Director. This case
pertains to the employment of Respondent's son, J. Justin Sivick, as a Township road
crew laborer.
From 2009 until January 7, 2013, the Township had a Nepotism Policy, contained
within the Township's employee handbook, which prohibited the hiring of a person for a
full-time, permanent position with the Township where the person would be directly or
indirectly supervised by a member of his immediate family such as his father. The
Township's Nepotism Policy is detailed at Fact Finding 19 a. Respondent voted in favor
of approving/enacting the employee handbook with the Nepotism Policy in 2009.
A few years later, in late 2012, Respondent verbalized to his fellow elected
Supervisors, in one-on-one meetings which were not advertised meetings of the Board,
his interest in his son, J. Justin Sivick, potentially working for the Township. During these
discussions, each of the Supervisors, including Respondent, recognized that the
Nepotism Policy would need to be removed from the employee handbook.
In Respondent's discussion with Vollmer, Vollmer questioned Respondent as to
whether it would be a good idea for J. Justin Sivick to work at the Township, and Vollmer
raised with Respondent various concerns about hiring Respondent's son. Vollmer stated
that Respondent John P. Sivick "ppled his case ... about seeing his son get a chance."
Stipulated Record, at 75, lines 23-24). After further discussion, Vollmer mentioned the
emp oyee handbook and Respondent stated, "...we're going to have to change the book
then." (Stipulated Record, at 69, lines 6-7). Vollmer then agreed and said, "okay we'll
change the boo <.(Stipulated Record, at 69, line 7).
Sivick, 16-001
'image 20
In the fall of 2012, Respondent told Township Secretary/Treasurer Rohner that he
wanted to hire his son, J. Justin Sivick, and that the Nepotism Policy was being taken out
of the Township employee handbook so that his son, J. Justin Sivick, could be hired.
To effectuate the removal of the Nepotism Policy from the employee handbook,
the Supervisors —including Respondent —first met to discuss the change(s). Menditto
then made the change(s), the other Supervisors read the employee handbook as revised,
it was given to the Solicitor to review, and finally, at the January 7, 2013, Township
Reorganizat�onal meeting, the Supervisors voted to approve it with Respondent
abstaining from the vote. Specifically, Menditto motioned to approve the "employee
benefits and information," which included the newly -revised Township employee
handbook from which the Nepotism Policy had been removed. Vollmer seconded the
motion. Respondent abstained from the vote, as instructed by Township Solicitor Robert
Bernathy, because the Nepotism Policy was being removed and the Township was going
to hire his son. Respondent told Menditto to not make an errata sheet identifying the
changes to the employee handbook, despite the Board's general practice of doing so.
Subsequently, in or about March 2013, Respondent as Roadmaster approved the
Township's registration of J. Justin Sivick and five other individuals to attend a traffic
control flagger training course held March 21, 2013. At that time, J. Justin Sivick had not
even submitted an application for employment with the Township, let alone been hired.
Respondent reimbursed the Township for the cost of his son attending the course.
Hiring for the Township road crew were generally made based upon
Respondent's recommendations. Vollmer stated that six months after the January 2013
Reorganizational meeting, Respondent again asked if it would be alright if he brought his
son in to be a Township employee. Vollmer asked Respondent if J. Justin Sivick had
qualifications for the Township position, and Respondent responded affirmatively and
informed Vollmer of his son's qualifications.
J. Justin Sivick formally applied for an employment position with the Township by
completing an application dated June 3, 2013. The position listed on J. Justin Sivick's
application was `public works maintenance." The application form contained a question
asking if the applicant had any friends or relatives, other than the applicant's spouse, who
were employed by the Township. J. Justin Sivick checked the box labeled "Yes" but did
not specify the name, relationship, or position of his father, Respondent John P. Sivick.
The Township's meeting minutes do not record any official vote of the Board
approving the hiring of J. Justin Sivick. However, Menditto and Vollmer both recall such
a vote taking place with Respondent abstainingg. J. Justin Sivick was employed by the
Township from June 10, 2013, to June 30, 2016. The employment position filled by J.
Justin Sivick had not been advertised; however, the Township does not utilize
advertisements for open employment positions.
From the pay period beginning on June 2, 2013, until the pay period ending on
July 9, 20 66, J. Justin Sivick received total gross pay of $126,552.24 and total net pay of
Respondent timely filed SFIs for calendar years 2011 through 2015 with the
Township.
On Respondent's SFI for calendar year 2011, Block 5, requiring disclosure of the
governmental entity served, was not completed. Additionally, Block 10, requiring
disclosure of any direct/indirect source of income totaling in the aggregate $1,300 or
more, did not identify the Township as a source of income.
On Respondent's SFI dated March 30, 2015--ostensibly for calendar year 2014--
Block 7, requiring disclosure of the calendar year for which the form was being filed, was
Sivick, 16-001
Page 21
not completed.
Having summarized the above relevant facts, we determine that each element of
two separate violations of Section 1103(a) of the Ethics Act has been established.
Based upon the stipulated facts, it is clear that Respondent used the authority of
his public office as a Township Supervisor for the private pecuniary benefit of his son, J.
Justin Sivick when he participated in discussions and actions of the Board to eliminate
the Township's Nepotism Policy with the intent and for the purpose of having his son hired
as a Township road crew employee. It is further clear that Respondent used the authority
of his public office as a Township Supervisor for the private pecuniary benefit of his son
when he discussed, recommended, lobbied, influenced, or sought the support of the
Board to effectuate the hiring of his sort as a Township employee.
Hiring for the Township road crew were generally made based upon
Respondent's recommendations. In late 2012, Respondent verbalized to his fellow
elected Supervisors, in one-on-one meetings which were not advertised meetings of the
Board, his interest in his son, J. Justin Sivick, potentially working for the Township. During
these discussions, each of the Supervisors, including Respondent, recognized that the
Nepotism Policy would need to be removed from the employee handbook.
When Vollmer raised concerns about hiring Respondent's son and specifically
mentioned the employee handbook, Respondent stated, "...we're going to have to
change the book then.' Stipulated Record, at 69, lines %7�. Vollmer then agreed and
said, 'okay we'll change fihhe book."(tipu ated Record, a, line 7).
Respondent used the authority of his public office as a Township Supervisor by
participating in the aforesaid discussions as well as later discussions with his fellow
Supervisors regarding the changes to the employee handbook to remove the Nepotism
Policy. Respondents discussions/actions to effectuate the removal of the Nepotism
Policy ---a policy that Respondent had voted to approve only a few years earlier —were
undertaken with the specific intent, motivation, and purpose of enabling the hiring of
Respondent's son, J. Justin Sivick, by the Township. Although Respondent abstained
from the January 7, 2013, vote of the Board that approved the revised employee
handbook, he had already used the authority of his office to effectuate the removal of the
Nepotism Policy from the employee handbook prior to the vote.
At this juncture, it is appropriate to note that the "conscious awareness" factor of
Kistler, supra, is further satisfied by the evidence that Respondent directed Menditto to
rem from preparing an errata sheet identifying the changes to the employee handbook,
despite the Board's general practice of doing so.
Respondent further used the authority of his public office as a Township Supervisor
when he discussed, recommended, lobbied, influenced, or sought the support of the
Board to effectuate the hiring of his son as a Township employee. Respondent "pled his
case" to Vollmer about seeing his son "get a chance." Fact Finding 35 d(2); Stipulated
Record, at 75, lines 23-24. After the Nepotism Policy had been removed from the
employee handbook, Respondent again asked Vollmer if it would be alright if he brought
his son in to be a Township employee. When Vollmer asked Respondent if J. Justin
Sivick had qualifications for the Township position, Respondent responded affirmatively
and informed Vollmer of his son's qualifications.
Respondent argues:
• That he did not use the authority of his public office or employment, and
specifically, that he did not exercise the powers unique to his office to eliminate the
Nepotism Policy or to get his son hired;
Sivick, 16-001
age 22
• That the removal of the Nepotism Policy was not the equivalent of appointing his
son to an employment position and that no benefit was conferred until the position
was filled;
• That he removed himself from the policy revision and the appointment decision;
• That the mere private introduction of the discussion topic of potential Township
employment of his son was not the exercise of the unique powers of his office but
rather the exercise of free speech available to all Americans;
• That his actions prior to the hiring of his son by the Board were not a use of the
authority of his public office or employment and did not in and of themselves
provide an economic benefit to his son; and
• That the employment of his son yielded services for the benefit of the Township
and no one else.
(Respondent's Initial Brief, at 16-21, 31; Supplemental Brief of Respondent Based on
Stipulated _Record, at 4-5; Respondent's Post -Remand Brie , at 3-19.
We reject Respondent's aforesaid arguments.
We initially note that Respondent has mischaracterized the statutory definition of
"authority of office or employment" as requiring an exercise of unique powers of public
office or employment. See, Respondent's Initial Brief, at 16-19e! mental Brief of
Respondent Based on Sti6u—la-ted Record, at 4-5. Rather, authority o o icfi� a or
emp oyment is [t]he actual power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a particular public office or
position of public employment." 65 a. 1102 (Emphasis added).
Respondent used the authority of his public office when he used the actual power
he had by being a Township Supervisor to access and influence his fellow Township
Supervisors to effectuate both the elimination of the Township's Nepotism Policy and the
hiring of Respondent's son. Given that the Nepotism Policy would have precluded the
hiring of Respondent's son, and given that at least one of the Supervisors (Vollmer) raised
concerns regarding hiring Respondent's son, it is clear that J. Justin Sivick would not have
been hired as a Township employee but for Respondent's use of the authority of his public
office as a Supervisor to engage in discussions with and make recommendations to his
fellow Supervisors and to lobby/influence or seek the support of those Supervisors with
regard to eliminating the Nepotism Policy and hiring his son. But for being a Supervisor,
Respondent would not have been in a position to engage in such communications and to
exert such influence to effectuate the hiring of his son. Respondent was consciously
aware of the private pecuniary benefit his son would receive if hired b the Township, and
Respondent's actions in getting the Nepotism Policy eliminated andhisson hired were
steps to secure that private pecuniary benefit.4 See, Kistler, supra.
Respondent argues in vain that a conflict of interest violation must be based upon
personal financial gain other than compensation provided by law and that there is no
evidence in this case that Respondent's son failed to perform the employment services
for which he was compensated or received a lightened workload or a preferential
allocation of overtime hours. (See, Respondent's Initial Brief, at 21-31). Under the current
version of the Ethics Act, the financi�t at must be established to find a conflict of
interest is a "private pecuniary benefit.' A private pecuniary benefit may include, but is
not limited to, compensation not provided by law. As clearly stated in Sn der v. State
Ethics Commission, 686 A.2d 843 (Pa. Cmwlth. 1996), allocatur denie , 002 C1�
4 Respondent acknowledges that there is evidence of his conscious awareness of a private pecuniary
benefit to his son. Respondent's Initial Brief, at 16.
Sivick, 16-001
Wage 23
Allocatur Docket 1997 (Pa. December 22, 1997), the Ethics Act's current conflict of
interest standard bases conflicts of interest on and private pecuniary gain regardless of
whether such compensation is otherwise provided for by law: Id. —at —16.
Furthermore, the private pecuniary gain Respondent's son received —in the form of
employment compensation was other than compensation provided by law because the
law does not authorize a public official to use the authority of his public office to effectuate
the hiring of his son.5
Finally, we observe that in Sivick, supra, the Pennsylvania Supreme Court noted
Respondents role in soliciting the Rimination of the nepotism policy and the hiring of his
son and stated that "[i]n those actions, Sivick plainIy `used' his office to facilitate [his son's]
private pecuniary benefit." Sivick, _ Pa. at , 238 A.3d at 1261.
Respondent's use of the authority of his office as a Township Supervisor to have
the Nepotism Policy eliminated and to have his son hired resulted in a private pecuniary
benefit consisting of the compensation J. Justin Sivick received from the Township for a
job he would not otherwise have held. From the pay period beginning on June 2, 2013,
until the pay period ending on July 9, 2016, J. Justin Sivick received total gross pay of
$126,552.24 and total net pay of $87,949.36.
With each element of two separate violations of Section 1103(a) established, we
hold that: (1) Respondent John P. Sivick violated Section 1103(a) of the Ethics Act, 65
Pa.C.S. § 1103(a), when he used the authority of his public office as a Township
Supervisor for the private pecuniary benefit of his son, J. Justin Sivick, when he
participated in discussions and actions of the Board to eliminate the Township's Nepotism
Policy with the intent and for the purpose of having his son hired as a Township road crew
employee; and (2) Respondent John P. Sivick violated Section 1103(a) of the Ethics Act,
65 Pa.C.S. § 1103(a), when he used the authority of his public office as a Township
Supervisor for the private pecuniary benefit of his son, J. Justin Sivick, when he
discussed, recommended, lobbied, Influenced, or sought the support of the Board to
effectuate the hiring of his son as a Township employee.
As for Respondent's SFls, Respondent timely filed SFIs for calendar years 2011
through 2015 with the Township. On Respondent's SFI for calendar year 2011, Block 5,
requiring disclosure of the governmental entity served, was not completed. Additionally,
Block 10, requiring disclosure of any direct/indirect source of income totaling in the
aggregate $1,300 or more, did not identify the Township as a source of income. On
Respondent's SFI dated March 30, 2015--ostensibly for calendar year 2014--Block 7,
requiring disclosure of the calendar year for which the form was being filed, was not
completed.
Respondent acknowledges the aforesaid deficiencies on his forms but essentially
ar ues that someone reviewing the forms could infer or discover through other means the
in rrm3 ttion he failed to plainly disclose on his SFI forms. See, Respondents Initial Brief,
8.
For the calendar year 2011 form, Respondent notes that via Blocks 4 and 6 of the
form, Respondent disclosed his positions as Township Supervisor, Roadmaster, and
Public Works Director, and he argues that his filing of the form with Lehman Township for
5 The cases relied upon by Respondent are factually inapposite. In the instant matter, Respondent's
actions were specifically directed toward achieving his goal of getting his son hired by the Township. In
contrast, in Kraines v. State Ethics Commission, 805 X2d 677 (Pa. Cmwlth. 2002), alloc. den., 672 Pa.
761, 818 A. 506 (2003), Kraines spouse a been performing the services in question (autopsies) at the
discretion of the County Coroner for years before Kraines, his wife, was elected County Controller, and
Kraines' involvement was limited to approving payments to her spouse via a plication of her signature
stamp. In Police v. State Ethics Commission, 713 A.2d 161 (Pa. Cmwlth. 1998� alloc. den., 557 Pa. 642,
732 A.2d 1211 the employment position in question was created without anyindication of who
would ultimately fill the position.
Sivick, 16-001
>}age 24
these local government positions would have signaled that Lehman Township was where
he was serving. (See, Respondent's Initial Brief, at 37). Additionally, Respondent asserts
that the fact that he was entitled to compensation from the Township was a matter of
general public knowledge, and the amounts are accessible from other sources and by
other means, such as a review of the minutes of the Township Board of Auditors or
through Right -to -Know Law requests. Id.
For Respondent's SFI dated March 30, 2015--ostensibly for calendar year 2014--
Respondent contends that the date on the form signaled that it was for calendar year
2014 as no one could reasonably infer that the form filed in March of 2015 would reliably
disclose information for the next nine months. (See, Respondent's Initial Brief, at 37).
Resppondent further argues that because Respondent tied other Fls or calen ar years
2010, 2011, 2012, and 2013, there was no other possible year the form dated March 30,
2015, could have covered. (See, Respondent's Initial Brief, at 38).
It is the filer's duty to properly complete the SFI form. Respondent's deficiencies
may not be dismissed merely because a savvy reviewer of his SFI forms might have been
able to infer or discover through other means what Respondent failed to disclose.
Accordingly, we hold that Respondent John P. Sivick violated Sections 1105(a)
and 1105(b)(5) of the Ethics Act, 65 Pa.C.S. § 1105(a), (b)(5), but did not violate Section
1104(a) of tthe Ethics Act, 65 Pa.C.S. § 1104(a), when he filed timely but deficient SFIs
for calendar years 2011 and 2014.
We further hold that to the extent Respondent John P. Sivick received
compensation from the Township when he did not have accurate and complete SFIs on
file with the Township, such compensation was received in contravention of Section
1104(d) of the Ethics Act, 65 Pa.C.S. § 1104(d).
Section 1107(13) of the Ethics Act, 65 Pa.C.S. § 1107{13), empowers this
Commission to order restitution in instances where a public official11public employee has
obtained a financial gain in violation of the Ethics Act. There is no evidence of record in
this matter to establish that Respondent himself —and not solely his son —received a
financial benefit as a result of Respondent's violations of the Ethics Act. Therefore,
despite the egregious nature of Respondent's conduct, we may not order restitution in
this case. See, Sivick, _ Pa. _, 238 A.3d at 1265-1266.
In the exercise of our discretion, we shall not require disgorgement of the
compensation Respondent received from the Township when his SFIs for calendar years
2011 and 2014 were deficient. However, to the extent he has not already done so,
Respondent shall be ordered to file complete and accurate amended SFIs for the 2011
and 2014 calendar years with the Township, through this Commission, by no later than
the thirtieth (30th) day after the mailing date of this adjudication and Order.
Non-compliance will result in the institution of an order enforcement action.
Turning to the matter of referral, given the egregious nature of Respondent's
conduct and the criminal penalties associated with the Ethics Act, we shall refer this
matter to the District Attorney of Pike County and the Pennsylvania Attorney General with
our recommendation that criminal prosecutions be initiated against Respondent. See,
Section 1107(15) of the Ethics Act, 65 Pa.C.S. § 1107(15).
IV. CONCLUSIONS OF LAW:
1. As a Supervisor for Lehman Township ("Township"), Pike County, Pennsylvania,
since January 1994, Respondent John P. Sivick ("Sivick") has been a public official
subject to the provisions of the Public Official and Employee Ethics Act ("Ethics
Act ), 65 Pa.C.S. § 1101 et seg.
Sivick, 16-001
age 25
2. Sivick violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he
used the authority of his public office as a Township Supervisor for the private
pecuniary benefit of his son, J. Justin Sivick, when he participated in discussions
and actions of the Township Board of Supervisors ("Board") to eliminate the
Township's Nepotism Policy with the intent and for the purpose of having his son
hired as a Township road crew employee.
3. Sivick violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he
used the authority of his public office as a Township Supervisor for the private
pecuniary benefit of his son, J. Justin Sivick, when he discussed, recommended,
lobbied, influenced, or sought the support of the Board to effectuate the hiring of
his son as a Township employee.
4. Sivick violated Sections 1105(a) and 1105(b)(5) of the Ethics Act, 65 Pa.C.S. §
1 105a�, (b)(5), but did not violate Section 1104(a) of the Ethics Act, 65 Pa.C.S.
1104�a, whhen he filed timely but deficient Statements of Financial Interests for
calendar years 2011 and 2014.
5. To the extent Sivick received compensation from the Township when he did not
have accurate and complete Statements of Financial Interests on file with the
Township, such compensation was received in contravention of Section 1104(d)
of the Ethics Act, 65 Pa.C.S. § 1104(d).
In Re: John P. Sivick, File Docket: 16-001
Respondent Date Decided: 213I21
Date Mailed: 2/25/21
ORDER NO. ' 731-2
John P. Sivick ("Sivick") violated Section 1103(a) of the Public Official and
Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1103 a), when he used the
authority of his public office as a Supervisor for Lehman Township ("Township"),
Pike County, Pennsylvania, for the private pecuniary benefit of his son, J. Justin
Sivick, when he participated in discussions and actions of the Township Board of
Supervisors ("Board") to eliminate the Township's Nepotism Policy with the intent
and for the purpose of having his son hired as a Township road crew employee.
2. Sivick violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he
used the authority of his public office as a Township Supervisor for the private
pecuniary benefit of his son, J. Justin Sivick, when he discussed, recommended,
lobbied, influenced, or sought the support of the Board to effectuate the hiring of
his son as a Township employee.
3. Sivick violated Sections 1105(a) and 1105�b)(5) of the Ethics Act, 65 Pa.C.S. §
1105 a , (b)(5), but did not violate Section 104(a) of the Ethics Act, 65 Pa.C.S.
1104�a�, whhen he filed timely but deficient Statements of Financial Interests for
calendar years 2011 and 2014.
4. To the extent Sivick received compensation from the Township when he did not
have accurate and complete Statements of Financial Interests on file with the
Township, such compensation was received in contravention of Section 1104(d)
of the Ethics Act, 65 Pa.C.S. § 1104(d).
5. To the extent he has not already done so, Sivick is ordered to file complete and
accurate amended Statements of Financial Interests for the 2011 and 2014
calendar years with the Township, through this Commission, by no later than the
thirtieth (30th) day after the mailing date of this Order.
6. Non-compliance with Paragraph 5 of this Order will result in the institution of an
order enforcement action.
7. This matter will be referred to the District Attorney of Pike County and the
Pennsylvania Attorney General with our recommendation that criminal
prosecutions be initiated against Respondent John P. Sivick.
BY THE COMMISSION,
lilibh•las A. Colafeltor,