DA: Controller, 2 commissioners violated Sunshine Law, but no one will be prosecuted

May 11—MERCER — Mercer County District Attorney Peter C. Acker concluded that two county commissioners and Controller Stephen P. Sherman II violated the Sunshine Law when Sherman paid two employees extra money without Salary Board authorization, but the county will not file charges in the incident.

In a report made public Saturday, Acker said Sherman and Commissioners Ann Coleman and William Finley Jr. violated the state Open Meetings Law, popularly known as the Sunshine Law, when they met with in private to discuss paying two senior salaried employees from the controller's office almost $6,000 in additional pay.

Under state law concerning the governing of fifth-class counties, a salary board — comprised of the elected county controller and three elected commissioners as permanent members — must ratify all compensation policies at public meetings.

"It appears that the Sunshine Act was violated by Commissioners (Ann) Coleman and (William) Finley as well as Controller (Stephen) Sherman," Acker stated in the report. "The public was not given notice and the right to attend a public meeting when this supplemental pay was discussed and decided."

The third commissioner, Tim McGonigle, was traveling outside the county and did not participate in the meeting that, according to Acker, violated the Sunshine Act.

He said an emergency meeting could have been called with notice to the public and the decision should have been made in an open meeting, with the public given an opportunity to comment.

However, Acker cited previous practice in his decision not to pursue charges against the three county officials.

Acker said people have brought a number of potential Sunshine Law violations to his attention since he became district attorney in 2019. In those cases, Acker said he reached out to the relevant officials and warned them against future incidents.

"Ultimately, the situation was resolved without prosecution but with the warning that if it occurs again, prosecution is likely," Acker stated. "If the commissioners and controller violate the Sunshine Act in the future, it is extremely likely that they will be prosecuted for any such intentional violation."

Acker further stated that there is no evidence that the roughly $6,000 paid to two employees of the controller's office for additional work was for the personal benefit of the controller. In fact, there is extensive documentation to establish that the two involved employees actually worked the additional hours outside of normal business hours.

He said the incident did not violate the Federal Fair Labor Standards Act, as the act is designed to protect the employees and to make sure the employees receive all wages to which they are entitled.

"However, overtime paid to exempt employees creates a multitude of related payroll issues," Acker said, "Which is one of the reasons HR is so vehemently opposed to overtime, comp time, etc."

Sherman has said the extra work and pay were necessary to speed the installation of new software for the county's financial system.

Regarding McGonigle's absence, Acker said someone should have filled him in on the situation.

Acker said Sherman, Coleman, Finley, and their solicitors need to fix the situation promptly — and in conjunction with the then-absent commissioner, McGonigle.

"This situation has not gotten better since it came to light, and it will not until it is addressed and resolved in compliance with applicable law," Acker stated.

Acker said the issues initially discovered by HR are important issues, but now the county needs to focus on getting the new Oracle system up and operational.

"We have far more serious cases to prosecute," Acker said. "We are trying four homicide cases between now and September."

Coleman acknowledged that she, Finley and Sherman had a meeting that should have taken place in a salary board meeting.

"This oversight illustrates that I must ask more questions as the commissioners move through various processes, and at the same time, others need to be more forthcoming with pertinent information," Coleman said. "I will make every effort to avoid future issues."

Coleman also said, and Finley agreed, that a salary board meeting will be held as soon as possible to act on a reasonable resolution for the employees in the controller's office who have worked to get the county back on schedule with the Oracle software project.

"I appreciate their efforts and regret the added stress staff has endured recently," Coleman said. "Staff's determination to get this project back on schedule has not gone unnoticed."

The goal of the Oracle project is to have an operational financial system that will permit Mercer County to not only collect taxes and pay its bills, but to also work to make certain the county can meet fiduciary obligations, Coleman said.

She added that the Oracle system purchase approved by the previous board in November included an implementation plan that now appears to be unworkable. But increasing transparency on the progress and effect of the software project is the goal, with weekly progress monitoring in effect regarding budget, scope and timely implementation.

"With this increased communication and cooperation, I am hopeful we can now move forward to complete the software implementation," Coleman said.

McGonigle said he sees this report as giving at least one free pass in Mercer County to break the law.

"It's my view that you can now hold meetings wherever you want," McGonigle said. "You can decide who gets paid and how much, and you no longer have to tell anybody you did it ... just give everyone you like a raise."

McGonigle said he thinks the report is embarrassing and a conflict of interest that Coleman worked on Acker's campaign to get elected as district attorney.

"I need to know how that works in perpetuity, Mr. Acker," McGonigle said. "I hope the Mercer County Bar Association is paying attention."

Sherman said he would have a written statement regarding the report but had not submitted it by Sunday evening.

Follow Melissa Klaric on twitter @HeraldKlaric or email her at mklaric@sharonherald.com

Follow Melissa Klaric on twitter @HeraldKlaric or email her at mklaric@sharonherald.com