J.P. Sivick v. State Ethics Commission ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John P. Sivick, :
Petitioner :
:
v. :
:
State Ethics Commission, : No. 252 C.D. 2018
Respondent : Argued: December 11, 2018
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 3, 2019
John P. Sivick (Sivick) petitions for review of the State Ethics
Commission’s (Commission) February 1, 2018 final adjudication and order,1 wherein
the Commission concluded that Sivick violated Section 1103(a) of the Public Official
and Employee Ethics Act2 (Ethics Act), Section 1104(d) of the Ethics Act,3 and
Section 1105(a) and 1105(b)(5) of the Ethics Act,4 and ordered Sivick to make
restitution in the amount of $30,000.00 and amend his Statements of Financial
Interests (SFI) for the years 2011 and 2014. Sivick presents four issues for this
Court’s review: (1) whether the Commission erred by ruling that Sivick violated
Section 1103(a) of the Ethics Act when, as Lehman Township5 (Township)
Supervisor (Supervisor) and Public Works Director, he engaged in activity for the
purpose of encouraging the Township to repeal its nepotism policy and hire his son, J.
1
The order is Commission Order No. 1731. It was mailed on February 8, 2018.
2
65 Pa.C.S. § 1103(a).
3
65 Pa.C.S. § 1104(d).
4
65 Pa.C.S. § 1105(a), 1105(b)(5).
5
Lehman Township is located in Pike County, Pennsylvania.
Justin Sivick (Sivick’s Son); (2) whether Sivick’s participation in verifying Township
payroll records for Township employees, including Sivick’s Son, constituted a
prohibited conflict of interest in violation of Section 1103(a) of the Ethics Act; (3)
whether Sivick violated Section 1105(a) and 1105(b)(5) of the Ethics Act when he
omitted certain information in his 2011 and 2014 SFIs; and (4) whether the
Commission erred by ordering restitution. After review, we affirm.
The Township is a second class township with a three-member Board of
Supervisors (Board). Sivick served as a Board member from January 1994 until
December 2017, and as Board Chairman since 2004. Sivick has also held the full-
time Roadmaster position since 1995. In 2005, the Board assigned him the additional
responsibilities of Public Works Director. Other Supervisors during the subject time
periods included Richard C. Vollmer (Vollmer), Robert H. Rohner (Rohner) and Paul
D. Menditto (Menditto). Vollmer became a Supervisor on July 5, 2000 and, at the
time of this proceeding, was serving his third term.6 Vollmer has been Board Vice
Chairman since January 2004. Rohner, who had been Township Secretary/Treasurer
since 1995, became a Supervisor in January 2014. Menditto served as a Supervisor
from January 2004 through January 2014, when he resigned his position following
his election as a Magisterial District Judge. Rohner replaced Menditto on the Board.
In 2009, Menditto substantially upgraded the Township’s existing 3-
page employee pamphlet to an employee handbook (Handbook), which included
detailed rules and regulations and contained a policy that prohibited the hiring of an
individual if that person would supervise or be supervised by a member of the
6
The Second Class Township Code (Code), Act of May 1, 1933, P.L. 103, as amended, 53
P.S. §§ 65101-68701, provides that Supervisors shall be elected to serve a 6-year term. See Section
403 of the Code, as amended, 53 P.S. §65403, added by Section 1 of the Act of November 9, 1995,
P.L. 350.
2
person’s immediate family (Nepotism Policy).7 The Board approved the Handbook,
including the Nepotism Policy.
The Township did not have a formal hiring process, and Sivick
conducted all of the Township’s hiring. In late 2012, Sivick verbally expressed to his
fellow Supervisors in one-on-one discussions that he wanted the Township to employ
his Son. During these conversations, Sivick and the other Supervisors acknowledged
that the Nepotism Policy would need to be removed from the Handbook before
Sivick’s Son could be hired.8 Menditto, in consultation with the Supervisors,
including Sivick, revised the Handbook to remove the Nepotism Policy. On January
7, 2013, at a Township reorganizational meeting, Menditto moved to approve the
“employee benefits and information,” that included the revised Handbook without the
7
The Nepotism Policy defined “immediate family” as “one’s spouse, parent, son or
daughter, sister or brother, grandparent or grandchild.” Reproduced Record at 94a-95a.
8
Rohner testified that in the fall of 2012, Sivick told him, “I want to hire my [S]on[, so] we
need to change the [Handbook].” R.R. at 127a. Rohner opined that Sivick did not present the
Handbook change and hiring of Sivick’s Son as a suggestion, but rather as a directive. See
Reproduced Record (R.R.) at 128a. “Rohner stated that . . . Sivick was the Township Supervisor
who primarily ran things at the Township, and if he wanted things done[,] they got done.”
Commission Adj. at 10, ¶ 33(b)(1) (emphasis added). Vollmer testified:
In late 2012, [Sivick] came and he said ‘look[,]’ he says[,] ‘I’d like to
somebody [sic] maybe have my [S]on work here’ . . . also in our
[H]andbook we have a thing about hiring employees you know like
relatives and . . . I questioned him on it. I said look, I said ‘do you
really think that’s a good idea?’ I said ‘because a lot of time you
know a father can’t work with his son.’ Now I don’t [sic] know
[Sivick’s Son] at this time. So [Sivick] proceeds to tell me that in the
past there have been [S]upervisors who had their families working in
there etc. And I know this is true . . . But anyway that wasn’t the
reason so I asked him. I said ‘are you absolutely sure?’ I said you
know. So he talked it up and I said and I had mixed emotions I really
did. I was one way or the other and I said alright look I said ‘but you
know it’s in the [Handbook] and all’ and he said we[]ll we’re going to
have to change the [Handbook] then.’ So anyway I agreed I said okay
we’ll change the [Handbook].
R.R. at 156a-157a.
3
Nepotism Policy.9 Vollmer seconded Menditto’s motion, and it was approved.
Although present at the meeting, Sivick abstained from voting on the revision as
instructed by the Township’s Solicitor. Despite the Board’s general practice of
preparing an errata sheet reflecting Handbook changes, Sivick told Menditto not to
prepare an errata sheet, and no errata sheet was created.
As Roadmaster, Sivick coordinated and scheduled training classes for
Township road crew employees. On March 20, 2013, Rohner submitted a
registration form on the Township’s behalf enrolling six individuals in a traffic
control flagger training course that the Pennsylvania Department of Transportation
mandated for individuals with flagging duties. Although Sivick’s Son had not yet
applied for Township employment, his name was among those included in the
Township’s flagger course enrollment form. The Township submitted payment of
$300.00 reflecting a $50.00 enrollment fee for each enrollee. On the same date,
Sivick issued a $50.00 check to the Township wherein the memo line read: “Flagging
Class.” Reproduced Record (R.R.) at 172a.
On June 3, 2013, Sivick’s Son applied for Township employment in
public works maintenance.10 In early June 2013, Sivick again approached the
Supervisors about hiring his Son. Although both Vollmer and Menditto admitted that
they voted to approve Sivick’s Son’s employment at a June 2013 meeting, 11 June
9
The meeting minutes do not reflect that the Nepotism Policy was removed. Rather, the
minutes reference the Supervisors approving “the employee benefits and information[,]” and further
document that Sivick abstained from voting. R.R. at 190a.
10
Sivick’s Son checked a box on the employment application to indicate that he had a
relative employed by the Township, but did not provide information requested therein to identify
the relative, the relative’s relationship to him, or the relative’s position with the Township.
11
Menditto testified: “I don’t recall ever being asked an opinion on whether we should hire
a certain person or not.” R.R. at 143a. Record evidence reflects that Sivick’s Son was the only
Township employee hired by a Board vote. Rohner testified that, although Vollmer and Menditto
officially moved to hire Sivick’s Son, “[Sivick] was the one who wanted him hired.” R.R. at 125a.
4
2013 Township meeting minutes do not reflect an official Board vote approving
Sivick’s Son’s hiring.12
Sivick’s Son began Township employment on June 10, 2013. His initial
pay rate was $15.00 per hour for regular work hours and $22.50 for overtime. The
starting pay rate was consistent with pay rates for new Township employees. In
2014, Sivick’s Son’s regular pay rate was $16.20 per hour and his overtime rate was
$24.30. In 2015, his regular pay rate was $17.45 and his overtime rate was $26.18.
In 2016, his regular pay rate was $18.20 and his overtime rate was $27.30.
Township road crew employees completed time sheets, upon which they
were paid. Sivick’s duties included reviewing, verifying and signing the time sheets
and forwarding them to the Township’s administrative secretary and
Secretary/Treasurer for additional review before paychecks were issued.
The Township employed Sivick’s Son for 81 pay periods from June 2,
2013 to July 9, 2016, during which time his gross earnings totalled $126,552.24 (he
netted $87,949.36). The Township discharged Sivick’s Son’s on June 30, 2016.
12
In his brief, Sivick cites to and relies upon statements contained in a February 3, 2016
Investigative Division Report of Interview prepared by Joseph Sherbaum (Sherbaum) regarding his
interview of Rohner that day. Notably, Sherbaum’s February 8, 2016 Investigative Division Report
of Interview references a phone call from Rohner subsequent to his February 3, 2016 interview as
follows:
I had sensed that Rohner had not been as forthcoming with
information . . . and that Rohner seemed to be uneasy due to the
presence of [Township] Solicitor, Robert Bernathy, at said
interview. After that interview, I had told Rohner that he may call or
email me at any time with additional information. Rohner called on
his own volition to provide additional information . . . .
....
Rohner stated that the road crew position that [Sivick’s Son] had
obtained with the Township in June 2013 was created by [Sivick]
specifically for [his Son] . . . .
R.R. at 112a (emphasis added).
5
On November 15, 2015, the Commission’s Investigative Division
(Investigative Division) received a signed, sworn complaint wherein it was alleged
that Sivick had violated the Ethics Act. On January 19, 2016, the Investigative
Division initiated a preliminary inquiry and, thereafter, a full investigation, and
notified Sivick accordingly. On September 13, 2016, the Investigative Division
mailed Sivick an Investigative Complaint/Findings Report, to which Sivick filed an
answer on November 12, 2016. The parties filed a Stipulated Record in lieu of an
evidentiary hearing and filed briefs. On February 1, 2018, the Commission issued its
final adjudication, wherein it determined that Sivick violated the conflict of interest
provisions of Section 1103(a) of the Ethics Act, that Sivick filed timely but deficient
SFIs for calendar years 2011 and 2014 in violation of Section 1105(a) and 1105(b)(5)
of the Ethics Act, and that Sivick violated Section 1104(d) of the Ethics Act because
he received compensation from the Township when he did not have accurate and
complete SFIs on file with the Township. Specifically, the Commission ruled:
[Sivick] used the authority of his public positions for the
private pecuniary benefit of his [S]on . . . 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 [S]on hired as a Township
road crew employee; when he discussed, recommended,
lobbied, influenced, or sought the support of the Board to
effectuate the hiring of his [S]on as a Township employee;
and when he verified Township records enabling and/or
otherwise directing the payment of salary/wage to his [S]on
from public monies.
....
[Sivick] used the authority of his public office as a
Supervisor by participating in the aforesaid discussions as
well as later discussions with his fellow Supervisors
regarding the changes to the [Handbook] to remove the
Nepotism Policy. [Sivick]’s discussions/actions to
effectuate the removal of the Nepotism Policy - a policy
that [Sivick] had voted to approve only a few years earlier -
6
were undertaken with the specific intent, motivation, and
purpose of enabling the hiring of [Sivick]’s [S]on . . . by the
Township. Although [Sivick] abstained from the January 7,
2013[] vote of the Board that approved the revised
[Handbook], he had already used the authority of his office
to effectuate the removal of the Nepotism Policy from the
[Handbook] prior to the vote.
....
[Sivick] used the authority of his public office as a
Supervisor when he discussed, recommended, lobbied,
influenced, or sought the support of the Board to effectuate
the hiring of his [S]on as a Township employee. [Sivick]
‘pled his case’ to Vollmer about seeing his [S]on ‘get a
chance.’ Fact Finding 35 d(2); Stipulated Record, at 75,
lines 23-24. After the Nepotism Policy had been removed
from the [Handbook], [Sivick] again asked Vollmer if it
would be alright if he brought his [S]on in to be a Township
employee. When Vollmer asked [Sivick] if [his Son] had
qualifications for the Township position, [Sivick] responded
affirmatively and informed Vollmer of his [S]on’s
qualifications.
Commission Adj. at 20-21. Finally, the Commission held:
[Sivick] 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 [Sivick]’s [S]on. Given that the
Nepotism Policy would have precluded the hiring of
[Sivick]’s [S]on, and given that at least one of the
Supervisors (Vollmer) raised concerns regarding hiring
[Sivick]’s [S]on, it is clear that [Sivick’s Son] would not
have been hired as a Township employee but for [Sivick]’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 [S]on. But for being a
Supervisor, [Sivick] would not have been in a position to
engage in such communications and to exert such influence
to effectuate the hiring of his [S]on. [Sivick] was
consciously aware of the private pecuniary benefit his [S]on
7
would receive if hired by the Township, and [Sivick]’s
actions in getting the Nepotism Policy eliminated and his
[S]on hired were steps to secure that private pecuniary
benefit.
Id. at 21-22.
The Commission ordered Sivick to pay $30,000.00 in restitution to the
Commonwealth of Pennsylvania and to file complete and accurate SFIs for 2011 and
2014. Sivick appealed to this Court.13
Initially,
[t]he Ethics Act is remedial legislation with the salutary
purpose of assuring the integrity and honesty of the
Commonwealth employees and, as such, must be ‘liberally
construed.’ Section 1101.1(a) of the Ethics Act; Maunus v.
State Ethics Comm’n, . . . 544 A.2d 1324, 1328 ([Pa.]
1988). Consequently, the coverage of the Ethics Act must
be construed broadly, and its exclusions must be
construed narrowly.
Quaglia v. State Ethics Comm’n, 986 A.2d 974, 979 (Pa. Cmwlth. 2010) (emphasis
added).
The Commission bears the burden of proving a violation of
the Ethics Act. In order to find a violation of the Ethics
Act, at least four members of the Commission must find
clear and convincing proof of a violation. Clear and
13
“This Court’s review is limited to determining whether the Commission’s necessary
factual findings are supported by substantial evidence or whether the Commission committed an
error of law.” Quaglia v. State Ethics Comm’n, 986 A.2d 974, 979 n.7 (Pa. Cmwlth. 2010).
Further,
[s]tatutory interpretation is a question of law, for which our standard
of review is de novo, and our scope is plenary. . . . ; see Malt
Beverages Distribs[.] Ass’n v. P[a.] Liquor Control B[d.], . . . 974
A.2d 1144, 1154 ([Pa.] 2009) (citing Seeton v. P[a.] Game Comm[’n],
. . . 937 A.2d 1028, 1037 ([Pa.] 2007) for the proposition that ‘while
courts traditionally accord the interpretation of the agency charged
with administration of the act some deference, the meaning of a
statute is essentially a question of law for the court’).
Kistler v. State Ethics Comm’n, 22 A.3d 223, 227 (Pa. 2011).
8
convincing proof is evidence that is so clear, direct,
weighty, and convincing that it enables the trier of fact to
come to a clear conviction, without hesitance, of the truth of
the precise facts at issue.
G.L. v. State Ethics Comm’n, 17 A.3d 445, 453 (Pa. Cmwlth. 2011) (citations
omitted).
Sivick first argues that the Commission erred by concluding that Sivick
violated the conflict of interest prohibition in Section 1103(a) of the Ethics Act due to
his discussions with the Supervisors for the purpose of eliminating the Nepotism
Policy so the Township could hire his Son, and his actions to effectuate his Son’s
hiring.
Section 1103(a) of the Ethics Act prohibits a “public official or public
employee [from] engag[ing] in conduct that constitutes a conflict of interest.” 65
Pa.C.S. § 1103(a). Section 1102 of the Ethics Act defines “[c]onflict” or “conflict of
interest” as:
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[14] or a business with
which he or a member of his immediate family is
associated. The term does not include an action having a de
minimis economic impact or which affects to the same
degree a class consisting of the general public or a subclass
consisting of an industry, occupation or other group which
includes the public official or public employee, a member
of his immediate family or a business with which he or a
member of his immediate family is associated.
65 Pa.C.S. § 1102 (emphasis added). “Thus, in order to prove a violation, the
Commission must establish by clear and convincing proof that: (1) a public official [15]
14
The Ethics Act defines “[i]mmediate family” as “[a] parent, spouse, child, brother or
sister.” 65 Pa.C.S. § 1102.
15
Section 1102 of the Ethics Act defines “[p]ublic official” as:
9
(2) used the authority of his office (3) for the private pecuniary gain of himself or a
business with which he is associated.” G.L., 17 A.3d at 453.
Although Sivick acknowledges the record evidence demonstrating his
“conscious awareness of private pecuniary gain[,]” he argues that there is “no
evidence that [he] used the unique authority or powers of his office or employment to
furnish that pecuniary gain.” Sivick Br. at 19. In support, Sivick claims that he “took
no action whatsoever to move, second or vote during the Board’s public January 2013
decision to remove the [N]epotism [P]olicy from the [Handbook].” Sivick Br. at 14.
He further asserts that with respect to his Son’s hiring, he requested the Supervisors
to vote on the hiring,16 and he abstained from voting. In short, Sivick maintains that,
rather than using the authority of his public office, he merely exercised his free
speech rights under the First Amendment to the United States Constitution and
suggested to his fellow Supervisors that the Township remove the Nepotism Policy
and hire his Son.
With respect to the use of the authority of office necessary to violate
Section 1103(a) of the Ethics Act, the Pennsylvania Supreme Court has explained:
The word ‘use’ is not defined in the Ethics Act. The
dictionary definition of the noun ‘use’ is ‘[t]he act of using
or putting to a purpose[, e.g.,] the use of a car;’ analogously,
Any person elected by the public or elected or appointed by a
governmental body or an appointed official . . . of this
Commonwealth or any political subdivision thereof, provided that it
shall not include members of advisory boards that have no authority
to expend public funds other than reimbursement for personal expense
or to otherwise exercise the power of the [s]tate or any political
subdivision thereof.
65 Pa.C.S. § 1102. Sivick does not dispute that he was a public official during the relevant time
periods.
16
Sivick contends that he generally hired road crew without input from the other
Supervisors. He asserts his request that the Supervisors’ vote on his Son’s hiring, and his abstention
from voting, evidence his desire to avoid any conflict of interest.
10
the definition of the verb ‘use’ is ‘1. [t]o bring or put into
service or action: employ[, e.g.,] use a pen [or] use your
imagination[, or] 2. to put to some purpose: avail oneself
of[, e.g.,] use the bus to get to work.’ Webster’s II New
College Dictionary, Houghton Mifflin Co., 1995, at 1215.
Thus, the common and approved usage of the word ‘use,’
which must guide our inquiry, indicates an action directed
toward a purpose. Accordingly, to violate [Section]
1103(a) [of the Ethics Act], a public official must act in
such a way as to put his office to the purpose of
obtaining for himself a private pecuniary benefit. Such
directed action implies awareness on the part of the public
official of the potential pecuniary benefit as well as the
motivation to obtain that benefit for himself.
Kistler v. State Ethics Comm’n, 22 A.3d 223, 227 (Pa. 2011) (emphasis added).
Further,
to violate the conflict of interest provision in subsection
1103(a) of the Ethics Act, a public official 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. . . . [T]his interpretation derives from the plain
meaning of the statutory definition of conflict of interest,
which requires that a public official use the authority of his
office for private pecuniary benefit.
Kistler, 22 A.3d at 231 (underline emphasis added).
In Kistler, a member of an intermediate unit board of directors voted to
authorize an architect to pursue construction of a school while simultaneously
seeking a subcontract for his business from the same individual. The Court held that
the Commission erred in holding that Kistler had violated the Ethics Act because
there was “no evidence that [Kistler] had acted with awareness that his . . . vote . . .
could or would result in his receipt of a subcontract . . . .” Id. In the instant matter,
Sivick’s actions evidence his clear intent to have the Township hire his Son. Further,
Sivick acknowledges that record evidence demonstrates his conscious awareness of
the private pecuniary gain therefrom.
11
In Pulice v. State Ethics Commission, 713 A.2d 161 (Pa. Cmwlth. 1998),
Pulice, the president of a school district board of directors was charged with violating
the Ethics Act’s conflict of interest provision by participating in meetings from which
a new assistant principal position was created, and by voting two months later to hire
his son-in-law for the newly-created position. In concluding that no violation had
been proven, this Court reasoned:
[The] facts found by the Commission present strong,
uncontradicted evidence that this newly[-]created position
was not created specifically to promote or otherwise benefit
[the] son-in-law, but was for the benefit of the [d]istrict.
There is no evidence at all from which it can be inferred,
rather than speculated, that [Pulice] ‘used his authority’ for
the private pecuniary benefit of [his] son-in-law by voting
for the creation of the new position. At the time that
[Pulice] voted on the creation of the new position there
were no applicants. Consequently, there is not even
substantial evidence, let alone clear and convincing
evidence that supports the Commission adjudication that
[Pulice] violated [S]ection 3(a) of the [Ethics Law.17]
Pulice, 713 A.2d at 164.
Unlike in Pulice, the evidence in this case reveals Sivick’s clear intent to
have the Township remove the Nepotism Policy from the Handbook and hire his Son.
Because Sivick acknowledges evidence of his conscious awareness of a private
pecuniary gain, this Court must consider whether Sivick “[took] action in the form of
one or more specific steps to attain that benefit.” Kistler, 22 A.3d at 231.
17
The original State Ethics Law, Act of October 4, 1978, P.L. 883, was reenacted and
amended by the Act of June 26, 1989, P.L. 26, formerly 65 P.S. § 403(a). The original State Ethics
Law was repealed in 1998 and replaced by the Ethics Act.
The Pulice Court also concluded that the Ethics Act’s conflict of interest provision did not
apply to in-laws.
12
Section 1102 of the Ethics Act requires that the steps taken must have
involved “[u]se . . . of the authority of his office or employment[.]” 65 Pa.C.S. §
1102. The Commission contends that Sivick used the authority of his public office
when he told a fellow [S]upervisor they (the [S]upervisors)
were going to have to remove the [N]epotism [P]olicy to
hire his [S]on; when Sivick spoke to the other [S]upervisors
in order to gain support for the removal of the [N]epotism
[P]olicy in order to hire his [S]on; when Sivick told a fellow
[S]upervisor not to note the changes to the [N]epotism
[P]olicy in the [H]andbook; when Sivick failed to state why
he abstained on the vote to remove the [N]epotism [P]olicy;
when Sivick lobbied other [S]upervisors to hire his [S]on
because his [S]on was having a rough time; when Sivick
included his [S]on in [T]ownship roadworker training
before his [S]on had even submitted an application; and
when Sivick’s [S]on was hired without any formal notation
in the Township’s meeting minutes.
Commission Br. at 24-25. It is clear based on this Court’s record review that
substantial record evidence supports the Commission’s findings that Sivick engaged
in such conduct. Thus, this Court must determine whether these actions involved
“the authority of [Sivick’s] office or employment[.]” 65 Pa.C.S. § 1102.
The Commission has repeatedly and consistently held that “[u]se of
authority of office is more than the mere mechanics of voting and encompasses all of
the tasks needed to perform the functions of a given position. Use of authority
includes . . . discussing, conferring with others, and lobbying for a particular result.”
In re Gallen, Commission Order No. 1198 at 37 (2001) (citation omitted);18 see also
18
The Commission cites to its Gallen decision in its brief to this Court which, in a citation,
reflects that the decision was “[a]ffirmed by Gallen v. State Ethics Commission[ (Pa. Cmwlth.] No.
1497 C.D. 2001[, filed August 9, 2002)] (unreported panel decision).” Commission Br. at 21 n.3.
Sivick contends in his Reply Brief to this Court:
[T]he [Commission’s Investigative] Division [(Division)] argues that
deference should be given to its solitary decision in In re Gallen,
Order 1198 (2001) which was ostensibly affirmed by the
Commonwealth Court in an unreported decision at 1497 C[.]D[.]
13
Bloom, Commission Order No. 1722 (2017); Yusko, Commission Order No. 1705
(2016); Esposito, Commission Order No. 1333 (2004); Yurek, Commission Order No.
1286 (2003); Zwick, Commission Order No. 1062 (1997); Juliante, Commission
Order No. 809 (1991).19
The Ethics Act defines “[a]uthority of office or employment[]” as “[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 Pa.C.S. § 1102 (emphasis added). Section 607 of The Second
Class Township Code (Code), 53 P.S. § 65607,20 describes the Supervisors’ duties to
include general Township governance and employing persons necessary for the
2001. A search of this Commonwealth Court case number yields no
opinions or docket sheets. While [a Commission] enforcement action
was filed against a certain ‘Michael Gallen’ at 820 M[.]D[.] 2002, this
case was discontinued for want of service of process. The Division’s
reliance on Gallen, therefore, should be rejected out of hand. Indeed,
even if this 2001 appeal resulted in an unpublished decision in 2002
or 2003, the [Commonwealth Court’s] Internal Operating [Procedures
(IOP)] do not permit this case to [be] cited for persuasive value. See
Commonwealth Ct[.] IOP, § 414 (‘. . . Parties may also cite an
unreported panel decision of this court issued after January 15, 2008
for its persuasive value’). Inaccessible caselaw should have no value.
Sivick Reply Br. at 15-16 (citation omitted; emphasis added). Contrary to Sivick’s representation,
the Commission did not cite to this Court’s Gallen decision for its persuasive value, but rather as
the Commission’s precedent. The reference to this Court’s affirmance was a proper inclusion of the
subsequent procedural history in the Commission’s citation to its own decision. By way of further
explanation, this Court indeed issued an unreported decision in Gallen on August 9, 2002 under
docket number 1497 C.D. 2001. However, the matter was sealed and the docket and case material
is not publicly accessible. Finally, it is clear that the rule for which the Commission cited Gallen is
not contained exclusively in that “solitary decision.” Sivick Reply Br. at 15. There are numerous,
consistent Commission decisions spanning more than twenty-five years evidencing the
Commission’s interpretation.
19
Although the issue before this Court is a question of law, the Court may consider the
interpretation of the agency charged with administrating the statute at issue. Section 1921(a) of the
Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(a), provides that the object of statutory
interpretation is to ascertain and effectuate the General Assembly’s intent.
20
Section 607 of the Code was added by Section 1 of the Act of November 9, 1995, P.L.
350, as amended.
14
conduct of Township business. Section 603 of the Code, 53 P.S. § 65603, requires
the Board to meet at least once per month to transact business. An affirmative
majority vote at a public meeting is required for the transaction of any business. Id.
Section 2302 of the Code mandates that, as Roadmaster, Sivick shall:
(1) Report to the [Board] any information that may be
required by the [Board] and by the Department of
Transportation.
(2) Inspect all roads and bridges as directed by the [Board].
(3) Do or direct to be done all work necessary to carry out
the responsibilities imposed by the [Board] with respect to
the maintenance, repair and construction of [T]ownship
roads.
53 P.S. § 67302.21
The Code governs and authorizes the Supervisors’ authority to engage in
meetings for the purpose of conducting Township business.22 The record evidence
reflects that Board Chairman and Roadmaster Sivick met with Supervisors Vollmer
and Menditto to initiate and promote official Board action to eliminate the
Township’s Nepotism Policy and to discuss and encourage his Son’s hiring. Thus,
Sivick’s access to and influence over the other Supervisors was rooted in his official
authority, as “actual power provided by law, the exercise of which is necessary to the
performance of duties and responsibilities unique to” his position as Supervisor and
Board Chairman. 65 Pa.C.S. § 1102.
Regardless of whether Sivick’s interaction with the other Supervisors
about repealing the Nepotism Policy and hiring his Son were considered requests,
recommendations or veiled heavy-handed mandates, they were nevertheless made in
his capacity as Board Chairman and Roadmaster. His use of his authority to promote
21
Section 2302 of the Code was added by the Act of November 9, 1995, P.L. 350.
22
Such discussions are deemed “deliberation” under Section 703 of the Sunshine Act. 65
Pa.C.S. § 703 (“The discussion of agency business held for the purpose of making a decision.”).
15
his Son’s hiring was the exercise of “actual power provided by law[.]” 65 Pa.C.S. §
1102. Thus, this Court agrees with the Commission that “[u]se of authority of office
is more than the mere mechanics of voting and encompasses all of the tasks needed to
perform the functions of a given position. Use of authority includes . . . discussing,
conferring with others, and lobbying for a particular result.” Gallen, Commission
Order No. 1198 at 37 (citation omitted).
The fact that Sivick abstained from voting to remove the Nepotism
Policy from the Handbook is not dispositive when he initiated and encouraged the
other Supervisors to eliminate the Nepotism Policy so the Board could vote on his
Son’s hiring, and then lobbied the Township to hire his Son. Instead, the totality of
the circumstances make clear that Sivick violated Section 1103(a) of the Ethics Act
when he took those actions.23 Accordingly, the Commission properly determined that
Sivick violated Section 1103(a) of the Ethics Act’s conflict of interest prohibition.
Sivick next contends that the Commission erred when it concluded that
he committed a conflict of interest violation by verifying Township payroll records
for Sivick’s Son because there is no evidence that Sivick’s Son acquired a pecuniary
benefit to which he was not entitled and because Sivick’s Son was a member of a
class/subclass of employees subject to Sivick’s supervision. Sivick argues that this
Court has interpreted the Ethics Act to require pecuniary gain to be something to
23
Sivick also argues that his First Amendment free speech rights would be infringed if this
Court finds merely “inquiring whether the other [Supervisors] might hire the public official’s
[S]on[,]” violates the Ethics Act’s conflict of interest provision. Sivick Br. at 21. In support, Sivick
cites to federal case law, a Superior Court decision, and several Pennsylvania Supreme Court
decisions.
However, the Commission, as trier of fact, found Sivick’s conduct far more intrusive than
merely “inquiring.” Sivick Br. at 21. Further, the cited decisions do not involve conduct of the type
at issue here. In fact, in Commonwealth v. Orie, 88 A.3d 983 (Pa. Super. 2014), the Superior Court
rejected a claim that the Ethics Act impermissibly intruded on First Amendment rights, stating:
“[T]he [Ethics Act] places no restrictions on a public official’s federal or state protected rights of
expression and association, but only prohibits officials from using state-funded resources for non-de
minimis private pecuniary gain.” Id. at 1026.
16
which the individual is not entitled, and the record is devoid of any such gain since
there is no evidence that Sivick’s Son failed to perform his employment duties.
In support, Sivick first cites to Kraines v. Pennsylvania State Ethics
Commission, 805 A.2d 677 (Pa. Cmwlth. 2002). In Kraines, this Court reversed the
Commission’s adjudication declaring that a county controller violated the Ethics
Act’s conflict of interest provisions when she signed payroll checks to her husband, a
forensic pathologist who provided services to her county. This Court found that
Kraines did not improperly use her office to gain pecuniary benefits to which her
husband was not entitled because he had been performing autopsies for the county
years before Kraines was county controller. In addition, Kraines had no role in the
county coroner’s decision to use her husband’s services and had no involvement in
the amount her husband and other pathologists were paid. This Court further
explained: “While Kraines approved payments via her stamped signature on [c]ounty
checks to her husband for pathologist fees, such action in and of itself does not
constitute an ethics violation as [Kraines’ husband] was entitled to these fees.” Id. at
681 (emphasis added).
Unlike in Kraines, where Kraines’ husband had been performing county
autopsies before Kraines was hired, Sivick initiated the improper scheme to have the
Township’s Nepotism Policy repealed and his Son hired, which directly resulted in
the Township employing his Son and Sivick approving his Son’s payroll records.
Thus, Kraines is inapposite.
Sivick also contends that, because his Son’s pecuniary gain was the
salary his Son earned for performing Township work, i.e., “compensation provided
by law[,]” no conflict exists. Sivick relies on the language in Section 3(a) of the
former Ethics Law, that: “No public official or public employee shall use his public
office . . . to obtain financial gain other than compensation provided by law for
himself, a member of his immediate family, or a business with which he is
17
associated.” Formerly 65 P.S. § 403(a), Act of October 4, 1978, P.L. 883 (emphasis
added).
In contrast, the current Ethics Act prohibits a public official from
engaging in conduct constituting a conflict of interest, 65 Pa.C.S. § 1103(a), which is
defined in part as using the authority of office “for the private pecuniary benefit of
himself, [or] a member of his immediate family . . . .” 65 Pa.C.S. § 1102 (emphasis
added). Therefore, the current Ethics Act’s conflict of interest provision applicable
here no longer uses the “other than compensation provided by law” language.
Section 3(a) of the Ethics Law, formerly 65 P.S. § 403(a).
Based on this distinction, the Commission contends that the use of
official authority for any “private pecuniary benefit,” 65 Pa.C.S. § 1102, is a
prohibited conflict of interest, even if the benefit is “compensation provided by
law[.]” Formerly 65 P.S. § 403.
In response, Sivick argues that the “other compensation provided by
law” language remains in Section 1101.1(a) of the Ethics Act, wherein the General
Assembly declared “that public office is a public trust and that any effort to realize
personal financial gain through public office other than compensation provided by
law is a violation of that trust.” 65 Pa.C.S. § 1101.1(a) (emphasis added). Sivick
urges that that language should be incorporated into the “pecuniary benefit” language
in Section 1102 of the Ethics Act.24
24
Sivick relies on Kraines and McGuire v. State Ethics Commission, 657 A.2d 1346 (Pa.
Cmwlth. 1995), to support his proposition that in order to violate Section 1103 of the Ethics Act, a
public official must use his public office in a way that “facilitates his receipt of compensation to
which he is not entitled.” Kraines, 805 A.2d at 681 (emphasis added). As discussed supra,
Kraines is distinguishable.
McGuire is similarly distinguishable. Therein, the Commission found that a township sewer
authority’s board members improperly received monthly meeting pay in excess of what was
authorized. In reversing the Commission, this Court concluded:
[T]here was no action taken by either [board member] regarding the
monthly meeting pay they received. The [Commission] determined
18
Sivick’s argument is not convincing. In Snyder v. State Ethics
Commission, 686 A.2d 843, 853 n.16 (Pa. Cmwlth. 1996), this Court clearly stated
that, given the Ethics Act’s amendments, “the current conflict of interest standard . . .
makes any private pecuniary gain to a public official a violation, whether or not
such compensation is otherwise provided for by law.” (Emphasis added).
Sivick’s Son was hired as a direct result of Sivick using his official
authority to change the Handbook to achieve that specific goal. Because the
Township hired Sivick’s Son as a direct consequence of Sivick’s conduct, Sivick’s
participation in approving his Son’s payroll time sheets so as to obtain pecuniary
benefit violated the Ethics Act’s conflict of interest provision. Accordingly, Sivick’s
argument fails.
Sivick also asserts that reviewing his Son’s time sheets and forwarding
them for payment did not violate the Ethics Act because
[t]he definition of ‘conflict of interest’ does not include an
action ‘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.’ Section 1102 of the
Ethics Act (emphasis added).
Kraines, 805 A.2d at 682. The Commission rejected this argument, explaining:
that all of the compensation they received, including compensation
for attending the [township sewer authority] board meetings, was
based on amounts that were determined [10 years] prior to the time
they were members of the [b]oard. As such, they merely accepted
what was given to them and did not use their office for personal
financial gain.
McGuire, 657 A.2d at 1352.
19
Although [Sivick] contends that the class/subclass exclusion
to the definition of ‘conflict’ or ‘conflict of interest’ would
be applicable to the aforesaid actions, that argument fails.
The review of each individual employee’s time[ ]sheets and
the subsequent approval of that individual’s payroll as part
of the total payroll for Township employees would not fall
under the class/subclass exclusion because the review and
approval as to each employee would be separate and
specific to that individual based upon his/her time[ ]sheet.
[Sivick’s] use of the authority of his public positions to
have the Nepotism Policy eliminated, to have his [S]on
hired, and to sign time[ ]sheets and effectuate payments to
his [S]on for hours of work claimed resulted in a private
pecuniary benefit consisting of the compensation [his Son]
received from the Township for a job he would not
otherwise have held.
Commission Adj. at 22. Sivick’s actions were not broad conduct generally affecting
a class - his employees. Instead, he reviewed each employee’s individual time sheet
presumably to consider whether it accurately reflected that employee’s working
hours. Thereafter, he issued approvals based on each such individual’s time sheet.
We discern no error in the Commission’s analysis. Thus, Sivick’s argument is
unfounded.
Sivick next argues that he did not violate Section 1105(a) and 1105(b)(5)
of the Ethics Act when he omitted certain information from his 2011 and 2014 SFIs.
The Commission explained:
[Sivick] timely filed SFIs for calendar years 2011 through
2015 with the Township. On [Sivick]’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 [Sivick]’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.
20
[Sivick] acknowledges the aforesaid deficiencies on his
forms but essentially argues that someone reviewing the
forms could infer or discover through other means the
information he failed to plainly disclose on his SFI forms.
See[ Sivick’s] Initial Brief, at 35-38.
For the calendar year 2011 form, [Sivick] notes that via
Blocks 4 and 6 of the form, [Sivick] disclosed his positions
as Township Supervisor, Roadmaster, and Public Works
Director, and he argues that his filing of the form with [the]
Township for these local government positions would have
signaled that [the] Township was where he was serving.
(See[ Sivick]’s Initial Brief, at 37). Additionally, [Sivick]
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[25] requests. Id.
For [Sivick]’s SFI dated March 30, 2015 -- ostensibly for
calendar year 2014 -- [Sivick] 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[ Sivick]’s Initial Brief, at 37). [Sivick] further
argues that because [Sivick] filed other SFIs for calendar
years 2010, 2011, 2012, and 2013, there was no other
possible year the form dated March 30, 2015, could have
covered. (See[ Sivick]’s Initial Brief, at 38).
It is the filer’s duty to properly complete the SFI form.
[Sivick]’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 [Sivick]
failed to disclose.
Accordingly, we hold that [Sivick] violated Section[]
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 the
Ethics Act, 65 Pa.C.S. § 1104(a), when he filed timely but
deficient SFIs for calendar years 2011 and 2014.
Commission Adj. at 23.
25
Right-to-Know Law, Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
21
Sivick cites to the Pennsylvania Supreme Court decision in In re
Benninghoff, 852 A.2d 1182 (Pa. 2004) and claims that his filings did not violate the
Ethics Act. Benninghoff involved a petition to set aside Benninghoff’s nomination
petition for the office of Representative in the General Assembly from the 171st
Legislative District. Benninghoff, the incumbent, attached his SFI to his nomination
petition. However, the SFI did not list the Commonwealth as a direct source of
income from his role as state representative. An elector filed a petition to set aside
Benninghoff’s nomination petition. On appeal, the Supreme Court concluded that
although Benninghoff’s receipt of a Commonwealth salary was not included, he
substantially complied with the requirements of the Ethics Act. As such, the Court
held that “where . . . a candidate has substantially complied with the requirements of
the Ethics Act and there is a technical defect appearing on the face of a candidate’s
[SFI], such a defect is subject to the candidate’s amendment.” Benninghoff, 852 A.2d
at 1189.
However, Benninghoff does not stand for the proposition that failure to
disclose government compensation in an SFI is not an Ethics Act violation. Instead,
it holds that a candidate may amend a technical defect appearing on the face of the
SFI to avoid removal from the ballot. Accordingly, Benninghoff does not direct this
Court’s review.
Sivick concedes that he did not complete the required information, but
argues that his omission is immaterial because the SFI is filed with the Township, and
the Township was aware of his Supervisor and Roadmaster positions.
Notwithstanding, Section 1105(a) of the Ethics Act states:
The [SFI]s filed pursuant to this chapter shall be on a form
prescribed by the [C]ommission. All information
requested on the statement shall be provided to the best
of the knowledge, information and belief of the person
22
required to file and shall be signed under oath or equivalent
affirmation.
65 Pa.C.S. § 1105(a) (emphasis added). The Ethics Act clearly states what must be
included in an SFI filing.26 Because Sivick did not provide all of the required
26
Section 1105(b) of the Ethics Act provides:
The [SFI] shall include the following information for the prior
calendar year with regard to the person required to file the statement:
(1) Name, address and public position.
(2) Occupation or profession.
(3) Any direct or indirect interest in any real estate which was
sold or leased to the Commonwealth, any of its agencies or political
subdivisions, or purchased or leased from the Commonwealth, any of
its agencies or political subdivisions, or which was the subject of any
condemnation proceedings by the Commonwealth, any of its agencies
or political subdivisions.
(4) The name and address of each creditor to whom is owed in
excess of $6,500 and the interest rate thereon. . . .
(5) The name and address of any direct or indirect source of
income totaling in the aggregate $1,300 or more. . . .
(6) The name and address of the source and the amount of any
gift or gifts valued in the aggregate at $250 or more and the
circumstances of each gift. . . .
(7) The name and address of the source and the amount of any
payment for or reimbursement of actual expenses for transportation
and lodging or hospitality received in connection with public office or
employment where such actual expenses for transportation and
lodging or hospitality exceed $650 in an aggregate amount per year. .
..
(8) Any office, directorship or employment of any nature
whatsoever in any business entity.
(9) Any financial interest in any legal entity engaged in
business for profit.
(10) The identity of any financial interest in a business with
which the reporting person is or has been associated in the preceding
calendar year which has been transferred to a member of the reporting
person’s immediate family.
65 Pa.C.S. § 1105(b).
23
information, his filings were deficient. Accordingly, the Commission did not err by
concluding that Sivick violated Section 1105(a) and 1105(b)(5) of the Ethics Act and
ordering him to amend his 2011 and 2014 SFIs.27
Finally, Sivick asserts that the Commission erred and abused its
discretion by ordering him to make a $30,000.00 restitution payment to the
Commonwealth.28 Sivick raises several arguments in support of his position. First,
Sivick contends that no restitution is warranted because he did not violate the Ethics
Act. However, having already ruled that Sivick violated the Ethics Act, this
argument fails.
Sivick also claims that restitution may only be granted under the Ethics
Act where a public official or public employee has obtained a financial gain in
violation of the Ethics Act. See 65 Pa.C.S. § 1107(13). According to Sivick, since
Sivick’s Son - the only individual who obtained a financial gain - is not a public
official or public employee,29 the Commission was not authorized to order restitution.
27
The Commission did not require disgorgement of Sivick’s 2011 and 2014 compensation
as a result of his deficient SFIs, but merely required that he amend them.
28
The Commission did not explain in its opinion why it chose restitution in the amount of
$30,000.00.
29
Section 1102 of the Ethics Act defines “public employee[,]” in relevant part, as:
Any individual employed by the Commonwealth or a political
subdivision who is responsible for taking or recommending official
action of a nonministerial nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any person; or
(5) any other activity where the official action has an economic
impact of greater than a de minimis nature on the interests of any
person.
65 Pa.C.S. § 1102.
24
This Court cannot agree with Sivick’s interpretation. Section 1107(13)
of the Ethics Act states, in pertinent part, that “[a]ny order resulting from a finding
that a public official or public employee has obtained a financial gain in violation of
this chapter may require the restitution plus interest of that gain to the appropriate
governmental body.” Id. This Court interprets Section 1107(13) of the Ethics Act
consistent with Section 1102 of the Ethics Act, which defines “conflict of interest,” in
relevant part, as “[u]se by a public official or public employee of the authority of his
office or employment . . . for the private pecuniary benefit of himself, [or] a member
of his immediate family . . . .” 65 Pa.C.S. § 1102. Thus, the reference to “a finding
that a public official or public employee has obtained a financial gain in violation
of this chapter” in Section 1107(13) of the Ethics Act, 65 Pa.C.S. § 1107(13)
(emphasis added), refers to a financial gain “benefit[ting the public official or public
employee], [or] a member of his immediate family[.]” 65 Pa.C.S. § 1102. Any other
interpretation would be illogical and result in an inconsistent application of the Ethics
Act based solely upon who happened to benefit from the prohibited conduct. More
importantly, this Court has already concluded that Sivick violated the Ethics Act by
using the authority of his office for his Son’s private pecuniary benefit. Had Sivick
not engaged in the improper conduct, the Board would not have rescinded the
Nepotism Policy or hired his Son. Because Sivick’s Son’s salary was a direct
consequence of Sivick’s use of his authority of office, it was “financial gain in
violation of [the Ethics Act]” for which the Commission could order restitution. 65
Pa.C.S. § 1107(13). Accordingly, this Court rejects Sivick’s argument.
Next, Sivick claims that the Commission improperly ordered restitution
be paid to the Commonwealth rather than to the Township. He argues “the
appropriate governmental body” described in Section 1107(13) of the Ethics Act
refers to the Township since the Township hired and paid Sivick’s Son. Sivick
further asserts that there is no evidence of any articulated loss to the Commonwealth.
25
The Commission responds that this Court has consistently sanctioned the
Commission’s authority to order restitution and that restitution to the
Commonwealth is appropriate because permitting such promotes “confidence in
government.” Commission Br. at 38.
The Pennsylvania Superior Court has explained that, in criminal matters,
an offender “has no standing to question contractual or subrogation rights which
govern disposition of moneys paid via restitution to the victim.”
Commonwealth v. Kerr, 444 A.2d 758, 761 (Pa. Super. 1982). In Kerr, the Superior
Court rejected the offender’s argument that a “right of subrogation transforms the
sentence [ordering restitution] into an order directing payment to one who was not the
victim of the crime.” Id. at 760-61. This Court finds Kerr instructive. In the instant
matter, there is no question that Sivick’s improper conduct resulted in Sivick’s Son’s
receipt of significant pecuniary benefit. Thus, restitution is appropriate and, for
reasons similar to those in Kerr, this Court concludes that Sivick may not seek to
invalidate the Commission’s order by challenging that restitution has been ordered to
the wrong party.30
For all of the above reasons, the Commission’s final adjudication and
order is affirmed.
___________________________
ANNE E. COVEY, Judge
30
This Court observes that the Township has not intervened to challenge the Commission’s
restitution order.
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John P. Sivick, :
Petitioner :
:
v. :
:
State Ethics Commission, : No. 252 C.D. 2018
Respondent :
ORDER
AND NOW, this 3rd day of January, 2019, the State Ethics
Commission’s February 1, 2018 final adjudication and order is affirmed.
___________________________
ANNE E. COVEY, Judge