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In Re: Daniel McDevitt,
Respondent
STATE Enucs, COMMISSION
FINANCE BLJILDING
613 NORTI-1 STREET, I"MOM 309
HAW-WBURG, PA 17120-0400
File Docket:
Order No.
Date Decided
Date Mailed:
22-0027-C
1831
1/11/24
1/12/24
Before: Michael A. Schwartz, Chair
Paul E. Parsells
David L. Reddecliff
Emilia McKee Vassallo
Thomas E. Leipold
This is a final adjudication of the State Ethics, Commission.'
FACSMLE717-787.0806
WEBSffE�
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 M., by the above named Respondent. At the commencement
of its investigation, the Investigative Division served upon Respondent written notice of the
specific allegations. Upon completion of its investigation, the Investigative Division issued and
served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer
was not filed, and a hearing was deemed waived. The averments in the Investigative Complaint
are admitted and are set forth as the following Findings. The record is complete,
1. ALLEGATION:
That Daniel McDevitt, a public official in his capacity as a Member of Council for Mohnton
Borough, Berks County, Perinsylvania, violated Section 1103(a) of the Ethics Act when he
participated in discussions and voted to change the Mohnton Borough health insurance agent and
employee insurance coverage to Tompkins Insurance Agencies, a business with which he is
associated, resulting in a private pecuniary benefit to Tompkins Insurance Agencies.
11. FINDINGS:
The Investigative Division of the State Ethics Commission ("Commission") received a
signed, sworn complaint alleging that Daniel McDevitt ("'McDevitt") violated provisions
of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § I tOl ctse_ q.
I Commissioner Robert P. Caruso recused hiniself frorn this 'natter and did not participate in the deliberations
involving this case.
McDevitt, 22-0027-C
Page 2
2. Upon review of the complaint the Investigative Division initiated a preliminary inquiry on
January 9, 2023.
3. The preliminary inquiry was completed within sixty days.
a. The Commission, through the Executive Director, initiated a full investigation on
March 10, 2023.
d. On March 10, 2023, a letter was forwarded to McDevitt by the Investigative Division of
the Commission, informing him that a complaint against him was received by the
Investigative Division and that a full investigation was being commenced.
a. Said letter was forwarded by certified mail, no. 7020 3160 0000 8610 3997.
b. The domestic return receipt was never returned, however the United States Postal
Service confirmed that the certified letter was delivered to [address redacted] on
March 13, 2023, at 5:56 p.m.
5. Periodic notice letters were forwarded to McDevitt at least every ninety days in accordance
with the provisions of the Ethics Act, advising him of the general status of the investigation.
6. The Investigative Complaint/Findings Report was mailed to McDevitt on September 1,
2023.
a. The Investigative Complaint/Findings Report was issued within 175 days of the
initiation of a full investigation.
7. McDevitt has served as a Council Member for Mohnton Borough ("Borough"), Berks
County, Pennsylvania, since January 2022.
8. McDevitt has served as the Chair of the Borough's Finance Committee since January 2022.
a. The Chair's duties include formulating the budget, reconciling year-end expenses,
and evaluating financial vendor impacts on the Borough, such as banking, payroll,
and insurance.
b. McDevitt did not receive compensation in his roles as a Borough Council Member
and the Finance Committee Chair.
9. Borough Council is comprised of seven Members.
10. Borough Council holds Workshop Meetings on the first Wednesday of the month and
Business Meetings on the second Wednesday of the month.
11. Voting at Borough Council Business Meetings occurs in a roll call fashion after a motion
is made and properly seconded.
McDevitt, 22-0027-C
Page 3
a. All objections and/or abstentions are specifically noted within the meeting minutes.
b. McDevitt had no abstention memos filed with the Borough.
12. Meeting minutes of Borough Council's Business Meetings are prepared by the Borough
Secretary/Treasurer.
a. Borough Council Members can review the meeting minutes for accuracy before the
following meeting.
b. Borough Council votes to approve the accuracy of the meeting minutes at each
subsequent meeting.
13. Borough Council votes to approve the bill lists in their entirety at each monthly Business
Meeting.
a. The bill lists include bills received and Borough costs for employee health
insurance.
14. Borough Council President John Davis, Borough Secretary/Treasurer Veronica Henry, and
Finance Committee Chair McDevitt are authorized to sign Borough checks.
a. Any deposit, account opening, withdrawal, endorsement, transfer of funds,
approval of payees, and delegation of authority requires two Borough Council
Members' signatures.
b. The Borough does not utilize a signature stamp; all signatures are live signatures.
THE FOLLOWING FINDINGS DETAIL MCDEVITT'S EMPLOYMENT WITH
TOMPKINS INSURANCE AGENCIES.
15. Tompkins Insurance Agencies ("TIA") provides insurance brokerage services to
businesses, organizations, and individuals throughout New York and Pennsylvania.
a. TIA is licensed to conduct insurance business in all 50 states.
16. McDevitt started employment with TIA on February 10, 2020, as a Commercial Insurance
Account Executive ("Account Executive").
a. McDevitt's job duties as an Account Executive included selling property and
casualty insurance.
l . Property and casualty insurance include auto, general liability, and workers'
compensation insurance.
17. McDevitt was compensated through a bi-weekly salary and commission.
McDevitt, 22-0027-C
Page 4
a. In calendar year 2022, McDevitt earned compensation totaling $162,956.64
from TIA.
b. McDevitt received a total of $102,701.64 in commissions during the 2022 calendar
year.
C. Displayed below in Figure I are McDevitt's 2022 commission details:
Dan McDevitt 2022 Commission Details
Regular
Other
Comm€ssion
Commission Bonus
b4ol&Aglil AR Holdback
Net Payable
statemenf Period
Pay Date
gerstatement
items Commission
Return (89)0{n),
Balance ,Vote to other Commission items
Decernber
1.28.22
4,775,21
2,955.15
7,730.36
January
2,25.22
3,750.90
(100.00)
3,650,90
February
3.25,22
3,842.72
(2,264,97) (886.23)
100.00
791.52 National Data- Correction Statement
Mamh
4.22,22
3,233.14
(300,00)
2,933.14
April
5.20.22
6,642.74
100.00
6,742,74
May
6.17.22
11,02.64
-
(20o.OD)
10,813.64
June
7.29.22
9,584.00
12,011.90
200.00
21,795.90
July
8.26.22
11,075.85
3,795.45
14,871.30
August
9.27.22
16,339.83
54513.95
100.00
21;952.78
September/ OctoberF€nal
11.18.22
9,041,35
2,379.01
11,419.36
102.701.64 Agrees to 202212.30,22 Yi0 Payroll Register
FigrrJ•e 1: McDevitt's 2022 Commission Details
18. TIA Account Executives must meet a quota of referrals every year,
a. McDevitt did .not receive a commission for referrals.
19, McDevitt resigned from TIA on October 5, 2022.
a. McDevitt received his last paycheck from TIA on October 21, 2022.
THE FOLLOWING FINDINGS DETAIL ACTIONS TAKEN BY MCDEVITT TO
DESIGNATE TIA AS THE INSURANCE BROKER FOR THE BOROUGH.
20. At Borough Council's Business Meeting on January 12, 2022, McDevitt voted to change
the Borough's health insurance agent to Rhonda Mayer ("Mayer").
a. McDevitt was still employed with TIA at the time of the vote to change the
Borough's insurance broker to TIA,
b. Mayer is employed with TIA,
21. The Borough's meeting minutes from January 12, 2022, document the following action:
a. A motion was made by Jason Kercher to change agent of record for health insurance
to Rhonda Mayer effective March 1, 2022, second by Brian Simmon and carried.
McDevitt, 22-0027-C
Page 5
22. On January 12, 2023, an investigative interview was conducted with McDevitt.
a. During this interview McDevitt confirmed that he participated in the vote to change
the Borough's health insurance agent to TIA for calendar year 2022.
b. During this interview McDevitt confirmed that he had discussions with Mayer to
refer the Borough as a client for TIA.
C. During this interview McDevitt explained that he had discussions with
Borough Council to consider TIA for the Borough's health insurance broker.
d. McDevitt explained that when he joined Borough Council in 2022, the Borough
was in the process of its health insurance renewal and struggling financially.
I. The Borough's previous insurance broker was Bruce Kraft with Arbor
Insurance Group.
e. McDevitt expressed that as the Finance Committee Chair, he was relied on to find
cost savings for health insurance.
f McDevitt provided his TIA commission statements and expressed he did not earn
a commission when the Borough selected TIA as its insurance broker.
23. On February 16, 2022, McDevitt created five referral activities within TIA's referral
tracking database called Synapsys.
a. Three out of the five referral activities McDevitt created in Synapsys were related
to the Borough.
I . One Borough referral was to Mayer.
b. McDevitt's referral activity to Mayer had the status marked as "Sold," indicating
that the transaction was completed.
1. As an Account Executive with TIA, McDevitt was required to meet referral
quotas but did not receive a referral commission.
aa. McDevitt's failure to meet a referral quota could result in a financial
penalty for McDevitt.
2. TIA's Account Executives are required to document all referral activity in
Synapsys.
3. McDevitt did not receive credit for the Borough referral to Mayer because
the referral was within the TIA affiliate with which McDevitt was
employed.
McDevitt, 22-0027-C
Page 6
4. Affiliate referral goals are based on referrals made by TIA to either
Tompkins Community Bank or Tompkins Financial Agency.
C. McDevitt made two referrals to TIA Account Executive Joe O'Neill for the
Borough, but both were marked as "No Sale" because the transactions were not
completed.
1. However, it was just one referral entered as two different applications: a
Business Loan and a Power of Partnership ("POP 2.0").
2. The Borough purchased a piece of equipment and was going to obtain a
Business Loan for this purchase, but the Borough eventually sold the
equipment, and the Business Loan was no longer needed.
3. The POP 2.0 was a referral program created by TIA to increase affiliate
referrals within the agency.
4. McDevitt's referral of this Business Loan was credited towards his affiliate
referral goal.
d. Displayed below in Figure 2 is a screenshot of the referral activity that McDevitt
created to track his referral of the Borough to Mayer.
fit` )Sack C3eiete 4,12 Print Pi rent Sees Evert &I Add
Borough Of Molinton
PO Box 247
Shillirgton, PA 19607
TIN: 23-6002901
(Fi)t
(W)
(C),
Craw 13usiness
[ompary;
Tompkins Community hank (0264)
Rol NEgr:
susdn Better
Citent Tye;
Client
Figta•e 2: Referral Activity in Synapsys
' cxexec�d on 04/16 20zz ay t ani t �1 Devitt it IS AM
Reterred'fn, "
Rhanda Mayer - RMMi •- 6792
App':tration; `
POP 210 - 99
Type, "
POP 2.0
Stetuv
` SSA d
Account O;
Ncedeti Sy:
4rom mt%
I -Added by: EDanEai McDeYM • t3A •- 6792 tart: 02/W2022 0$t569d AM",
tooth a sad $ary and plops::t intter
McDevitt, 22-0027-C
Page 7
THE FOLLOWING FINDINGS DETAIL THE BOROUGH'S USE OF TIA AS AN
INSURANCE BROKER.
24. TIA acts as the insurance broker for the Borough and receives payment from the insurance
carriers which the Borough utilizes.
a. The Borough's medical insurance carrier is Highmark and the dental/vision
insurance carrier is Delta.
1, TIA receives $37 per employee per month for medical insurance through
Highmark and total of 10% for dental insurance through Delta for providing
broker services to the Borough.
25. On January 12, 2022, Borough Council President Jon Davis sent a Producer of Record
Change memo to Highmark.
a. The memo named TIA as Producer of Record for the Borough's group health care
benefits offered through Highmark-
b. On January 19, 2022, Highmark Manager Elizabeth Coverdale sent the
Confirmation of Producer of Record Transfer memo directly to TIA.
1. The memo confirmed that Highmark received a letter from the Borough to
change its health insurance Producer of Record to the President/CEO of
TIA, David Boyce.
2. The memo stated the change will be effective March 1, 2022.
26, On March 22, 2022, TIA Account Executive Mayer emailed Borough Administrative
Assistant Lorretta Imbody and copied McDevitt.
a. The email detailed the Borough's new dental and vision coverage through the
carrier Delta.
b. The dental and vision coverage took effect on April 1, 2022.
C. Displayed below in Figure 3 is a screenshot of the email correspondence between
Mayer and the Borough.
McDevitt, 22-0027-C
Page 8
iota
Prom:
Rhonda Mayer <.—yer0 Wmpki—iin...I.I.—,n,
$ou.: ` r �,
To,.
Tuesday, March 22, 2W..24:T.4 I+M
Into
Fr: .lr .t -,
Kaudean Arnica; 0—hil McDevitt
;ubje ..0V
A.tachro
Revisod Dental and Vision Enrollment with Dell. D—WI
wharea..My_FD_Card..Dehe Dental.pol; i:afd_V]V-pot, M.hntdn 2022
��"
��
_wheras_My_li),
PA 00.Vlsion Appllcat€an Ravisad.pdr; M,I Ion Dantel 2022 PA Apf4lcall n
II rp
tf � �!
f
Rwis.d_pdt. rt vls f 3 M.I nto. a.." al. Demal+Vfsfon Fnrnlimenr Ccnxllstlstkty
Polt4w VR Fiati: �
FOIItrV�Up
FFay Ste—
Cgmpla.od
[ogee.,
0F.... .na thn Pnrt.h.d Information rogarpina the now dental and vision coverage with Delta Dental and Delta Vision for
Apr111 2Uk2. Yolrrempiayees will not remlve any 10 cams. 1 have atrached Information on downloading M cards From
the ire 1ta wahsite. '(hey can plan across the website to rrtglsterand get their ben.fit 7nrarrnation. it,,. Is what I need to
get this coverage in pgace by April li`.
31 Please sign the two appllcatloos 1 have attached In thl. amen,
2) pfoas.t provide Ina with your 4-quarter UC3 Am t th.k Iht. each cmplr.yse's wage. and credit wanks, i wilt
Dad a most recent paystub for you since you just F ntly were hued end nor 0. the UC2 Ayet,
3) Please frtalt. binder 01—k niode payable to fielta r ,iW In tha pmauot of $tag o3 to the fallowFog
address: Iptaose send 4 copy of the check w nsq)
AINad Adminlatretots
Alin: Iron® Madaya®
501 14rh Slr.el, `.Suit. 200
tlpkland, CA 04612-1420
Let mu Imovr If you want to Jump on the phon.e to walk through all of tbls with met. Because the pollee era not
ott this .average, we are Iirnitod to offering dental armual rnaalmtim of $150D per person, not $200., and no
child orthodontia coverage is allowed.
ghbeda
Rhnntla Moyer
VP Account Ux .Hive
7o€npkin%In.ura
F.,Ploy— flen.flts 50a[in1lst
F t[t F>rt3 �a'r7 offt'.
a R3.33 Fi�&03 crrE€
1159s1Y�i.Fi.Thllbltl! It) b IIGa I,efaf.. suet g
Figure 3: DentallVision Insurance Enrail Correspondence
THE FOLLOWING FINDINGS DETAIL THE COMMISSION WHICH TIA EARNED AS
A RESULT OF OBTAINING THE BOROUGH AS A CLIENT.
27. McDevitt's Commission Payable Statements from TIA for the timeframe of January 2022
through September 2022 revealed McDevitt did not receive commission payments
associated with the Borough utilizing TIA as its insurance broker.
28. During the timeframe of January 1, 2022, through December 31, 2022, the Borough paid a
premium to its carriers (Highmark and Della) that totaled $132,315.91.
a. TIA is paid a commission directly from the carrier derived from the premium the
Borough paid.
I . TIA's Production Analysis report revealed TIA earned $2,286.06 in
commission as a result of obtaining the Borough as a client,
2. Of that $2,286.06, TIA Account Executive/Borough Broker Mayer earned
$800.06.
3. TIA's gross profit totaled $1,486.00 with the Borough as its client.
b. Displayed below in Figures 4 and S are screenshots of the Production Analysis
reports for the Borough and Mayer.
McDevitt, 22-0027-C
Page 9
Tompkins Insurance Agencles, In6
03/3012023 Page 1 of 1
Production Anelysls
1/112022-1213112022
Premium
konProm
Total %lot Aeanty %Gomm ProtlComm
ProdComm
Bmlor
omss
CultgmgrlPollcVX0El
;M,4ma
Comm Vol
VON" Val Comm Not
FRM
NOmprom
Comm
Profit
OOROVG11 OF MPHNTON
£0124776
wdlcd-PPo
130.336.31
0.00
130335.31 08,6 2,088.00 1A
730.80
0.00
6.00
1,35720
20656-06031
nemai PP43
1,616.34
a.00
1,616.34 t.2 161.03 10.0
50.54
DAM
0.0a
105.00
21666400039
ordup Vision
364.26
0.00
364.26 0.3 36.43 10.0
12,72
0.00
6A0
23.71
Sub TOW
132,315.01
0.00
132,316.01 100.0 2,286.06 1.7
BOOM
too
0.00
1.486.no
Report Tatels
m,31501
0.00
132.3t6.91100.0 2,26006 1,7
5=06
0-00
0,0o
1'446.00
Figure 4: Borough of Mohnton's Production Analysis Repoi-t
Tompkins In6uranc4 Agennles, lop
0313012023 Page 1 of 1
Production Analysis
11112022.1213112022
Premima
NoOPram
Told %761 Aginty %Gomm Pro OOo
PradCumm
enuiur
ae0as
E-cutl-11.08
Volume
Gamm Vol
Volume Vol G00u0 AW
From
No"emm
comn
Profit
Hpyw, 1tBpOda
o mtel PPO
1,818.34
0.03
1.616.34 1.2 161,63 10A
56.54
0.0o
000
105.60
Grqup Vision
38428
0-00
$64.28 0-3 3643 10,0
12.72
0.00
0.00
23.7t
IAedirdl-ppo
130,336.11
0.00
130,335.31 68.5 2.068.00 1.8
730.80
010o
0.00
1,357.20
Sub TOW
132,316,el
0,00
132,315.al 100.0 2,286.06 1.7
800.06
0.00
0.00
1,406.60
RepwtTotats
132,315.01
0.00
132,315.111100.0 2,286.00 0
800.e8
0.06
0.00
1,460,00
Figure S: Rhonda Mayer's Production Analysis Repon
THE FOLLOWING FINDINGS SUMMARIZE THE PRIVATE PECUNIARY BENEFIT
THAT TIA, A BUSINESS WITH WHICH MCDEVITT WAS ASSOCIATED, RECEIVED
BY BEING REFERRED TO THE BOROUGH.
29. McDevitt, in his capacity as a Council Member for the Borough, utilized the authority of
his public office to gain a pecuniary benefit for a business with which he was associated,
TIA, which totaled approximately $2,286.06.
30. The financial gain that TIA and TIA Account Executive Mayer received is detailed in the
chart below:
TIA's commission earned during the timeframe of
$2,286.06
l/l/2022-12/31/2022
Rhonda Mayer's commission earned during the
$800.06
timeframe of l/l/2022 - 12/31/2022
TIA's Gross Profit
$1,486,00
III. DISCUSSION:
McDevitt, 22-0027-C
Page 10
As a Member of Council for Mohnton Borough ("Borough"), Berks County, Pennsylvania,
since January 2022, Respondent Daniel McDevitt ("McDevitt") 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 s�
The allegation is that McDevitt violated Section 1103(a) of the Ethics Act when he
participated in discussions and voted to change the Borough health insurance agent and employee
insurance coverage to Tompkins Insurance Agencies, a business with which he is associated,
resulting in a private pecuniary benefit to Tompkins Insurance Agencies.
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 related to Section 1103(a) 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 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.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association, organization,
self-employed individual, holding company, joint stock company,
receivership, trust or any legal entity organized for profit.
"Business with which he is associated." Any business in
which the person or a member of the person's immediate family is a
director, officer, owner, employee or has a financial interest.
McDevitt, 22-0027-C
Page 11
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
(financial) 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.
We shall now summarize the facts pertaining to this case. Given McDevitt's failure to file
an Answer to the Investigative Complaint, the facts as averred by the Investigative Complaint are
deemed admitted by McDevitt. See, 65 Pa.C.S. § I108(e); 51 Pa. Code § 21.5(k)(1).
Borough Council is comprised of seven Members. McDevitt has served as a Borough
Council Member and as the Chair of the Borough's Finance Committee since January 2022. The
duties of the Chair of the Finance Committee include formulating the budget, reconciling year-end
expenses, and evaluating vendor financial impacts in areas such as banking, payroll, and insurance.
Tompkins Insurance Agencies ("TIA") provides insurance brokerage services to
businesses, organizations, and individuals throughout New York and Pennsylvania. From
February 10, 2020, through October 5, 2022, McDevitt was employed with TIA as a Commercial
Insurance Account Executive ("Account Executive"). McDevitt's job duties as an Account
Executive included selling property and casualty insurance, and he was compensated through a bi-
weekly salary and commissions. Although McDevitt was required to meet a quota of referrals to
TIA affiliates Tompkins Community Bank or Tompkins Financial Agency, he did not receive a
commission for the referrals.
When McDevitt joined Borough Council in January 2022, the Borough's health insurance
agent was Bruce Kraft with Arbor Insurance Group. At Borough Council's Business Meeting on
January 12, 2022, Borough Council Member Jason Kercher made a motion to change the
Borough's health insurance agent to TIA Account Executive Rhonda Mayer ("Mayer") effective
March 1, 2022. The motion carried, with McDevitt voting in favor of the motion.
On February 16, 2022, McDevitt created a referral activity within TIA's referral tracking
database, which reflected the referral of the Borough to Mayer. McDevitt did not receive a
commission for the referral, and he did not receive credit toward his referral quota because the
referral was within TIA and not to a TIA affiliate.
As the Borough's health insurance agent, TIA acts as the insurance broker for the Borough.
The medical and dental/vision insurance carriers utilized by the Borough pay TIA commissions
based upon the insurance premiums paid by the Borough. TIA receives $37 per Borough employee
per month from the Borough's medical insurance carrier, Highmark. TIA also receives a
commission from the Borough's dental/vision insurance carrier, Delta.
From January 1, 2022, through December 31, 2022, the Borough paid premiums to
Highmark and Delta that totaled $132,315.91. The commissions that TIA received from Highmark
and Delta for serving as the Borough's insurance broker during that timeframe totaled $2,286.06.
McDevitt, 22-0027-C
Page 12
As a result of the commissions paid to TIA by Highmark and Delta, Mayer earned a commission
of $800.06 from TIA.
During an interview with a Commission investigator on January 12, 2023, McDevitt
explained that when he joined Borough Council in January 2022, the Borough was struggling
financially and was in the process of renewing its health insurance. McDevitt explained that as
the Chair of the Finance Committee, he was relied on to find cost savings for health insurance.
McDevitt confirmed that he had discussions with Mayer about referring the Borough as a client
for TIA. McDevitt further explained that he had discussions with Borough Council about
considering TIA to become the Borough's health insurance agent.
We must now determine, based upon the record, whether the actions of McDevitt violated
the Ethics Act. As we apply the facts to the allegation, due process requires that we not depart
from the allegation. Pennsy v. Department of State, 594 A.2d 845 (Pa. Cmwlth. 1991). A violation
of the Ethics Act must be based upon clear and convincing proof. 65 Pa.C.S. § 1108(g). Clear
and convincing proof is "so `clear, direct, weighty, and convincing as to enable the trier of fact to
come to a clear conviction, without hesitance, of the truth of the precise facts in issue."' In Re:
Charles E.D.M., 550 Pa. 595, 601, 708 A.2d 88, 91 (1998).(Citation omitted).
Per the Pennsylvania 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 the Ethics 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 applying the Fact Findings as deemed admitted by McDevitt to the allegation, it is clear
that the elements for a violation of Section 1103(a) of the Ethics Act have been established.
McDevitt used the authority of his office as a Member of Borough Council when he participated
in discussions with Borough Council about considering TIA to become the Borough's health
insurance agent and when he voted to change the Borough's health insurance agent to TIA Account
Executive Mayer. At the time that McDevitt used the authority of his office in such matters, TIA
was a business with which he was associated as an employee (i.e., Account Executive). Although
the admitted Fact Findings do not reflect that McDevitt received a referral commission or other
financial gain as a result of TIA becoming the Borough's health insurance agent, TIA received
commissions totaling $2,286.06 from the Borough's medical and dental/vision insurance carriers
as a result of serving as the Borough's insurance broker during the timeframe of January 1, 2022,
through December 31, 2022.
McDevitt, 22-0027-C
Page 13
With each element of a violation of Section 1103(a) established, we hold that McDevitt
violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he participated in
discussions with Borough Council about considering TIA — a business with which he was then
associated as an employee — to become the Borough's health insurance agent and voted to change
the Borough's health insurance agent to TIA, resulting in a private pecuniary benefit to TIA.
Given that the admitted Fact Findings do not establish that McDevitt received a
commission or other financial gain as a result of his violation of Section 1103(a) of the Ethics Act,
no financial penalties may be imposed upon McDevitt. See, Sections 1107(13) and 1109(c) of the
Ethics Act, 65 Pa.C.S. §§ 1107(13), 1109(c).
IV. CONCLUSIONS OF LAW:
1. As a Member of Council for Mohnton Borough (`Borough"), Berks County, Pennsylvania,
since January 2022, Respondent Daniel McDevitt ("McDevitt") 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 sec_.
2. McDevitt violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he
participated in discussions with Borough Council about considering Tompkins Insurance
Agencies ("TIA") — a business with which he was then associated as an employee — to
become the Borough's health insurance agent and voted to change the Borough's health
insurance agent to TIA, resulting in a private pecuniary benefit to TIA.
In Re: Daniel McDevitt, File Docket: 22-0027-C
Respondent Date Decided: 1/11/24
Date Mailed: 1/12/24
ORDER NO. 1831
1. Daniel McDevitt, as a Member of Council for Mohnton Borough ("Borough"), Berks
County, Pennsylvania, violated Section 1103(a) of the Public Official and Employee Ethics
Act, 65 Pa.C.S. § 1103(a), when he participated in discussions with Borough Council about
considering Tompkins Insurance Agencies ("TIA") -- a business with which he was then
associated as an employee — to become the Borough's health insurance agent and voted
to change the Borough's health insurance agent to TIA, resulting in a private pecuniary
benefit to TIA.
BY THE COMMISSION,
A 'A
111111,
Michael A. Schwartz, Chair