HomeMy WebLinkAbout1452 BarrIn Re: Eric Barr,
Respondent
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
06 -057
Order No. 1452
1/28/08
2/15/08
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted
an investigation regarding a possible violation of the Public Official and Employee Ethics
Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., by the above -named Respondent. At the
commencement of its investigation, the Investigative Division served upon Respondent
written notice of the specific 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 filed and a hearing was held. The record is
complete.
This adjudication of the State Ethics Commission is issued under the Ethics Act and
will be made available as a public document thirty days after the mailing date noted above.
However, reconsideration may be requested. Any reconsideration request must be
received at this Commission within thirty days of the mailing date and must include a
detailed explanation of the reasons as to why reconsideration should be granted in
conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the
finality of this adjudication but will defer its public release pending action on the request by
the Commission.
The files in this case will remain confidential in accordance with the Ethics Act. Any
person who violates such confidentiality commits a misdemeanor and, upon conviction,
may be subject to a fine of not more than $1,000 or imprisonment for not more than one
year. Confidentiality does not preclude discussing this case with an attorney at law.
Barr, 06 -057
Page 2
I. ALLEGATION:
That Eric Barr, a (public official /public employee) in his capacity as a UCC Plan
Examiner, Building Section of the Pennsylvania Department of Labor and Industry violated
the following provisions of the State Ethics Act (Act 93 of 1998) when he used and /or
attempted to use the authority of his public position for a private pecuniary benefit by
initiating a Department of Labor and Industry Inquiry against a contractor who he was
involved with in a civil dispute over alleged unpayment of bills.
§ 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).
§ 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.
65 Pa.C.S. § 1102.
II. FINDINGS:
A. Pleadings
1. Eric Barr was employed by the Commonwealth of Pennsylvania, Department of
Labor and Industry from July 28, 2003, until August 11, 2006.
a. Barr was employed as a Uniform Construction Code Building Plans
Examiner within the Department of Labor and Industry's Bureau of
Occupational and Industrial Safety, Harrisburg.
b. Barr was on leave without pay or benefits status from July 21, 2006, until
August 11, 2006.
c. Barr's employment with the Commonwealth was officially terminated effective
August 12, 2006.
2. Barr in his official capacity as a UCC Plan Examiner annually ... filed Statements of
Financial Interests and Governor's Code of Conduct Financial Disclosure forms.
3. On January 4, 2005, Barr and his wife Shawna purchased real estate located at 23
Watson Drive, Carlisle, PA 17015 -7436 for the purpose of installation of a modular
Barr, 06 -057
Page 3
home to serve as their residence.
a. The Barrs' acquisition of this property was recorded in Cumberland County
Deed Book 267 pages 699 through 702.
b. Tax parcel number 46 -08- 0587 -119 was assigned to this property.
4. ...Whisler's Well Drilling filed a mechanic's lien claim in the amount of $11,429.47
with the Cumberland County Prothonotary's Office on June 15, 2006.
5. ... [Barr received a copy of the mechanic's lien claim via first -class mail, which
mechanic's lien claim included a certificate of service dated June 15, 2006.]
6. ... [Barr sent a July 11, 2006, letter to Whisler with a file number of ebb71106.]
a. Barr's initials are ebb while 71106 was the actual date of the
correspondence.
7 Barr's property, 23 Watson Drive, Carlisle, PA 17015 is situated in West
Pennsboro Township, Cumberland County.
a. Residential building code inspections for West Pennsboro Township,
Cumberland County were handled by Middle Department Inspection Agency,
Inc. (MDIA) 3901 Hartzdale Drive, Suite 112, Camp Hill, PA 17011.
8. MDIA conducted plumbing, building and mechanical inspection at the subject
property.
a. Application number 2005 -65WP was assigned to the project.
9. ...Attorney Kutulakis contacted Barr on two occasions.
10. On August 8, 2006, ... [a praecipe to amend the mechancs' lien claim was filed,
changing the amount claimed] from $11,429.47 to $8,516.27.
a. ... [There had been] a June 1, 2006, payment in the amount of $2,913.20
made by Barr.
b. ... [Barr received a copy of the amended mechanic's lien claim dated] August
8, 2006.
11. The Department of Labor and Industry conducted [a] fact - finding conference with
Barr on July 24, 2006.
a. During the conference Barr... [identified] the July 11, 2006, letter to Whisler's
Well Drilling [and stated that he wrote it and sent it to Ken Whisler].
12. ... Barr's [uniform] construction code official certification[(s)] were
suspended] for sixty (60) days.
a. Barr's license was suspended from December 1, 2006, through
January 31, 2007.
13. Barr used official Labor and Industry letterhead ... [for the first page
of the July 11, 2006,] letter to Whisler's Well Drilling....
Barr, 06 -057
Page 4
B. Testimon
14. Jason Kutulakis, Esquire ( "Kutulakis ") is a partner with the law firm of Abom and
Kutulakis, LLP in Carlisle, Pennsylvania.
a. Abom and Kutulakis, LLP provides legal services to Whisler's Well Drilling,
Inc.
b. Whisler's Well Drilling, Inc. is a business that provides drilling, plumbing,
heating, ventilation, air conditioning, and excavation services.
c. The proprietor of Whisler's Well Drilling, Inc. is Richard Whisler.
(1) Ken Whisler is Richard Whisler's son.
d. A dispute arose between Whisler's Well Drilling, Inc. and Respondent
regarding a claim for final payment for work.
e. Kutulakis issued a letter dated May 12, 2006 (ID 13) to Respondent
demanding payment of an outstanding balance in the amount of $11,429.47
claimed to be due from Respondent to Whisler's Well Drilling, Inc.
f. In June 2006, Abom and Kutulakis, LLP filed a Mechanic's Lien Claim on
behalf of Whisler's Well Drilling, Inc. against the property located at 23
Watson Drive, Carlisle, Pennsylvania (hereafter, the "Barr Property "), which
claim was in the amount of $11,429.47 plus filing and Sheriff's service costs
in the amount of $114.00 and interest as provided by law. (ID 9, pages 1 -5).
In August 2006, Abom and Kutulakis, LLP filed a Praecipe to Amend the
Mechanic's Lien Claim on behalf of Whisler's Well Drilling, Inc. against the
Barr Property, reducing the claim to the amount of $8,516.27 plus filing and
Sheriff's service costs in the amount of $114.00 and interest as provided by
law. (ID 9, pages 6 -10).
(1) The Praecipe to Amend Mechanic's Lien Claim included, as an
Exhibit, an invoice statement dated July 25, 2006, from Whisler's Well
Drilling, Inc. to Respondent in the amount of $8,516.27. (ID 9, page
8).
h. Kathleen A. Engle, Esquire was the attorney primarily responsible for
preparing the Mechanic's Lien Claim and the Praecipe to Amend Mechanic's
Lien Claim filed by Whisler's Well Drilling, Inc. as to the Barr Property.
(1) Attorney Engle was employed as an associate attorney with Abom
and Kutulakis, LLP.
g.
J.
i. ID 10 consists of a Sheriff's return which indicates that the Mechanic's Lien
Claim filed by Whisler's Well Drilling, Inc. against the Barr Property was
served on Respondent on July 10, 2006, at 1828:00 hours (6:28 p.m.).
ID 12, pages 1 -3 consist of a letter dated July 11, 2006, to Ken Whisler of
Whisler's Well Drilling regarding the Barr Property.
(1) The letter references the web site and telephone number of the
Department of Labor and Industry.
Barr, 06 -057
Page 5
(2) The letter bears a designation of a file number as follows: "File #
ebb71106."
(3)
(a) The letters "ebb" correlate to Respondent's initials, and
"71106" correlates to the date of the letter.
The letter states that various enumerated violations of the 2003
International Residential Code exist at the Barr Property.
(4) The letter states, All of the violations are required to be repaired and
made legal at your expense or penalties against your company may
be filed. (ID 12, page 1).
(5) The letter does not specifically refer to a contract or mechanic's lien.
(6) The final paragraph, closing, and subsequent notations on the letter
are as set forth in Fact Finding 25 e.
The letter indicates that copies of the letter were issued to Paul
Sebastian, Middle Department Inspection Agency; West Pennsboro
Township Code Enforcement; and Abom & Kutulakis [sic].
(a) Kutulakis did not receive a copy of the letter from Respondent,
but did receive a copy of the letter from Ken Whisler /Whisler
Well Drilling.
(b) Upon inquiring with West Pennsboro Township, Kutulakis was
informed that the Middle Department Inspection Agency
assists in performing some of the inspections within that
township.
(8) The July 11, 2006, date of the letter was the day after Respondent
had been served with the Mechanic's Lien Claim.
(7)
k. When Ken Whisler received the letter at ID 12, pages 1 -3, he contacted
Kutulakis by telephone.
(1) Ken Whisler was distraught by the letter and was concerned about
the well being of his company based upon the threat of penalties set
forth in the letter.
Kutulakis met with Ken Whisler and reviewed the letter.
(1) Kutulakis testified that he was planning to address the list of alleged
code violations set forth in the letter, and he had asked Ken Whisler
to bring to Kutulakis' office a copy of the code book containing the
referenced sections.
(2) Kutulakis testified that after Attorney Kathleen Engle identified
Respondent's signature on the letter and the file number designated
on the letter, which contained Respondent's initials, and after
Kutulakis received the Sheriff's Return of Service indicating that the
Mechanic's Lien Claim had been served upon Respondent, Kutulakis
concluded that the letter was a retaliatory effort on behalf of
Respondent.
Barr, 06 -057
Page 6
m. ID 16 consists of a letter dated July 18, 2006, from Kutulakis to Karen Galli,
Esquire, of the Office of Chief Counsel of the Department of Labor and
Industry.
(1) This letter requested that an investigation as to Respondent be
opened by the Department of Labor and Industry.
n. R —1 consists of a two -page complaint dated July 18, 2006, which was filed
with the Department of Labor and Industry by Kutulakis against Respondent.
o. ID 14 consists of a letter dated July 20, 2006, from Kutulakis to Respondent.
(1) The letter references a telephone conversation between Kutulakis
and Respondent.
(2) The letter confirms receipt of the July 11, 2006, letter of Respondent
and characterizes the letter as pertaining to an active file opened by
Respondent at the Department of Labor and Industry, Bureau of
Occupational and Industrial Safety, under file number EBB 71106.
The letter references a referral by Respondent to the Office of
Attorney General, which reference Kutulakis testified was based upon
an indication by Respondent that a referral had been made to the
Office of Attorney General.
(4) The letter states that Respondent had indicated that he was willing to
place $8,500.00 into Kutulakis' escrow account which would be
released upon Whisler's meeting certain conditions outlined in
Respondent's July 11, 2006, correspondence.
ID 15 consists of a letter dated July 21, 2006, from Respondent to Ken
Whisler of Whisler's Well Drilling.
R -2 consists of a letter dated July 26, 2006, from Respondent to Kutulakis.
(1) Kutulakis testified that he did not have an independent recollection of
seeing this letter.
r. Respondent's July 11, 2006, letter to Ken Whisler (ID 12, pages 1 -3) has not
resulted in Whisler /Whisler's Well Drilling, Inc. reducing or amending the
Mechanic's Lien Claim against the Barr Property.
(1) Whisler /Whisler's Well Drilling, Inc. has not paid any money to
Respondent.
(2) Kutulakis testified that Whisler /Whisler Well Drilling, Inc. has not
pursued a civil lawsuit against the Barrs.
15. Edward Leister ( "Leister ") is employed by the Commonwealth of Pennsylvania,
Department of Labor and Industry, as the Director of the Bureau of Occupational
and Industrial Safety ( "Bureau ").
a. Respondent was previously employed by the Bureau.
(1) Leister testified that Respondent was initially employed by the Bureau
as a building plan examiner and then became a UCC building plan
examiner when he became qualified for that position.
P.
q.
(3)
Barr, 06 -057
Page 7
b. ID 7, pages 1 -3 consist of the Respondent's Position Description as a UCC
Building Plans Examiner for the Department of Labor and Industry.
(1) The Position Description sets forth the duties and responsibilities that
Respondent would be performing on a day -to -day basis in his position
with the Department of Labor and Industry.
(2) The major focus of Respondent's position as a UCC Building Plans
Examiner for the Department of Labor and Industry was to review
architectural plans of proposed construction to determine compliance
with Department of Labor and Industry regulations as well as some
federal standards adopted by the Department of Labor and Industry.
Respondent had the authority to disapprove plans or to give final
approval to them.
(4) In his capacity as a UCC Building Plans Examiner for the Department
of Labor and Industry, Respondent's decisions as to plans had a
significant economic impact upon other persons.
c. Respondent's work hours as a UCC Building Plans Examiner for the
Department of Labor and Industry were from 7:30 a.m. to 4:00 p.m. for a total
of 37'/ hours per week (ID 7, page 1).
d. In his position as a UCC Building Plans Examiner for the Department of
Labor and Industry, Respondent had access to a computer, Department of
Labor and Industry letterhead, and a Department of Labor and Industry
telephone.
e. ID 8, pages 2 -4 consist of Statements of Financial Interests filed by
Respondent through the Department of Labor and Industry for calendar
years 2003, 2004, and 2005.
(1) On each of these Statements of Financial Interests, Respondent
designated that he was a current public employee.
f. ID 8, page 6 consists of a Statement of Financial Interests filed by
Respondent through the Department of Labor and Industry for calendar year
2006.
g.
(3)
(1) On this Statement of Financial Interests, Respondent designated that
he was a former public employee.
Legal counsel for the Department of Labor and Industry provided to Leister a
copy of Respondent's July 11, 2006, letter in evidence as ID 12, pages 1 -3.
(1) Leister testified that the signature on the letter appears to be that of
Respondent.
(2) The letter is on official Department of Labor and Industry letterhead
that is used in the ordinary course of agency business.
The telephone number, fax number, and web site address listed on
the letter are those of the Department of Labor and Industry.
(3)
Barr, 06 -057
Page 8
(4) Leister testified that the letter appears to be a formal letter from the
Department of Labor and Industry.
The letter indicates Respondent's name and official title with the
Department of Labor and Industry.
(5)
(6) The letter references the Building Section, which is the Section of the
Department of Labor and Industry where Respondent worked.
h. As a result of receiving this letter, the Department of Labor and Industry
conducted an investigation and held a fact - finding conference with
Respondent.
Leister attended the fact - finding conference (hereafter, "Fact- Finding
Conference ") held by the Department of Labor and Industry as to the
Respondent.
(1) The Fact - Finding Conference was held on July 24, 2006.
(2) ID 11, pages 1 -3 consist of questions that were posed to Respondent
during the Fact - Finding Conference and Leister's notes from the Fact -
Finding Conference.
Leister's notes reflect that Respondent indicated that he did not imply
to Mr. Whisler or his attorney that the Department had an on -going
investigation and would take actions against Mr. Whisler.
(4) Leister's notes reflect that Respondent indicated that he did not tell
Mr. Whisler or his attorney that he (Respondent) opened a complaint
file at the Department of Labor and Industry.
(a) Leister testified that he thought the Respondent indicated that
he (Respondent) was going to file something with the Attorney
General's Office.
(3)
(5)
Leister's notes indicate that when Respondent was asked whether he
attempted to negotiate a reduction in the amount of money he owed
Whisler, Inc. by indicating to Mr. Whisler or his attorney that the
Department of Labor and Industry would take enforcement actions
based on the letter, Respondent said that he sent them a settlement
offer.
(6) Leister indicated that Respondent acknowledged that he was aware
that the Department of Labor and Industry has no jurisdiction over
residential construction in West Pennsboro Township under the UCC
and can take no actions regarding compliance with the UCC. (ID 11,
page 3).
j. Leister testified that at the conclusion of the fact - finding, it was the
assessment of himself and others that Respondent did not have authority to
write the July 11, 2006, letter in evidence as ID 12, pages 1 -3.
k. Leister testified that after the fact - finding conducted by the Department of
Labor and Industry, based upon information received from the Department's
Office of Information Technology, it was concluded that the July 11, 2006,
letter in evidence as ID 12, pages 1 -3 was produced on July 11, 2006, on the
Department of Labor and Industry computer assigned to Respondent.
Barr, 06 -057
Page 9
Leister testified that the signature of Respondent's name on ID 15 appears
to be Respondent's signature.
16. Amanda Lawrence ( "Lawrence ") is employed by the Department of Labor and
Industry as a Labor Relations Coordinator.
a. In July of 2006, Lawrence was employed by the Department of Labor and
Industry as a Human Resource Analyst III.
b. In July of 2006, Lawrence attended the Fact - Finding Conference.
c. ID 18, pages 1 -4 consist of questions that were posed to Respondent during
the Fact - Finding Conference and Lawrence's handwritten notes from the
Fact - Finding Conference.
d. The Fact - Finding Conference was held on July 24, 2006.
(1) At the Fact - Finding Conference, Respondent acknowledged that he
composed and signed the July 11, 2006, letter to Ken Whisler (ID 12,
pages 1 -3).
(2) Respondent stated that he created the letter during his break and
lunch, and that the letter was deleted from the system.
Respondent indicated that his purpose in writing the letter was to
inform Whisler's Well Drilling of the problems with the house, and that
Whisler's Well Drilling was going to need to do something.
(a) Respondent indicated that he sent the letter because he was
frustrated with Whisler's.
(3)
(4) Respondent indicated that he did not imply to Mr. Whisler or his
attorney that the Department had an on -going investigation and would
take actions against Mr. Whisler. (ID 18, page 2).
Respondent indicated he did not tell Mr. Whisler or his attorney that
he (Respondent) opened a complaint file at Labor and Industry. (ID
18, page 2).
(a) Respondent referenced a complaint with the Office of Attorney
General.
(5)
(6) Lawrence's notes indicate that when Respondent was asked whether
he attempted to negotiate a reduction in the amount of money he
owed Whisler, Inc. by indicating to Mr. Whisler or his attorney that the
Department of Labor and Industry would take enforcement actions
based on the letter, Respondent answered, "Yes," and that he sent
them a settlement offer.
Lawrence's notes indicate that at the Fact - Finding Conference,
Respondent denied using letterhead for the letter.
(8) Lawrence indicated in her notes that Respondent acknowledged that
he was aware that the Department of Labor and Industry has no
jurisdiction over residential construction in West Pennsboro Township
(7)
Barr, 06 -057
Page 10
under the UCC and can take no actions regarding compliance with
the UCC. (ID 18, page 3).
e. Respondent's duties and authority with the Department of Labor and Industry
did not apply to residential establishments.
(1) Lawrence testified that it was her conclusion that Respondent did not
have authority in his position to write the July 11, 2006, letter in
evidence as ID 12, pages 1 -3.
f. Respondent's employment with the Department of Labor and Industry was
ultimately concluded through a resignation.
17. Kenneth Whisler ( "Whisler ") is a manager and vice - president of Whisler's Well
Drilling, Inc., of Newville, Pennsylvania.
a. Whisler's Well Drilling, Inc. is a privately owned corporation that provides
well drilling, excavation, heating, ventilation, air conditioning, and water
treatment services.
(1) The corporation is owned by Whisler's father.
b. Whisler testified that Whisler's Well Drilling, Inc. had contract(s) with
Respondent to perform work as to the construction of a home.
c. Respondent expressed concerns as to the work performed by Whisler's Well
Drilling, Inc.
d. ID 9, page 8 is a statement from Whisler's Well Drilling, Inc., which indicates
payments and remaining balances due at various points in time.
e. Whisler testified that as a result of Respondent's failure to pay an
outstanding balance, which Whisler believed to be due, and discussions with
Respondent in which Respondent indicated his refusal to pay all that was
claimed to be due, Abom & Kutulakis, attorneys for Whisler's Well Drilling,
Inc., placed a mechanic's lien on the Barr Property.
f. When Whisler received the July 11, 2006, letter in evidence as ID 12, pages
1 -3, he panicked and believed that Whisler's Well Drilling, Inc. was going to
be subject to penalties and assessments by the State.
g.
(1)
(2)
Whisler contacted Kutulakis regarding the letter.
Whisler testified that he turned the matter over to Kutulakis to handle.
Whisler testified that he received the letter dated July 21, 2006, from
Respondent, which is in evidence as ID 15.
h. Whisler testified that to the best of his knowledge, Middle Department
Inspection Agency, Inc. had inspected his company's work at the Barr
Property.
(1) Whisler testified that ID 1, page 11 completed by Middle Department
Inspection Agency, Inc. indicated a final inspection of the Barr
Property on March 22, 2006.
Barr, 06 -057
Page 11
Whisler testified that the outstanding balance due to Whisler's Well Drilling,
Inc. from the Barrs is $8,516.27 for the work at the Barr Property, plus
interest, attorney fees, and missed work. (Tr. at 145).
18. Kathleen Engle ( "Engle ") is an attorney who previously worked for the law firm of
Abom & Kutulakis.
a. Engle prepared the Mechanic's Lien Claim and Praecipe to Amend
Mechanic's Lien Claim (ID 9, pages 10) filed by Whisler's Well Drilling, Inc.
against the Barr Property.
b. A mechanic's lien is a contractor's lien placed on a property for work
performed.
(1) The effect of a mechanic's lien is that it must be paid in order for the
property to be sold.
c. Engle was present when Whisler provided the July 11, 2006, letter from
Respondent (ID 12, pages 1 -3) to Kutulakis.
(1) Engle testified that Whisler was very upset and very concerned at
that time.
19. George Leroy Windemaker ( "Windemaker ") is employed by the Commonwealth of
Pennsylvania, Department of Labor and Industry as the "desktop architect."
a. Windemaker's duties at the Department of Labor and Industry pertain to
computers, and include computer security and the creation of software
packages.
b. In the course of his work at the Department of Labor and Industry,
Windemaker was assigned to review a computer that had been in the
possession of Respondent.
(1) Windemaker was asked to look for certain documents, and he found
them through a back up.
c. Windemaker was the only technician assigned to take documents from
Respondent's computer, and everything that Windemaker found on
Respondent's computer, he (Windemaker) turned over to the personnel
department and officials of the Department of Labor and Industry.
d. Windemaker testified he would not be able to tell when the document(s) at
ID 17, pages 1 and 2 were created.
e. Windemaker testified that every time a document is saved on a computer,
the "created" date that appears in the "Properties" box is changed to the date
of the final save.
f. Windemaker testified that based upon the information at ID 17, there is no
way to determine how long it took to write the document.
20. Sean M. Firestine ( "Firestine ") is employed by the Pennsylvania State Ethics
Commission as an IT Generalist and computer forensic examiner.
a. The Property boxes that are part of the Word package show information
regarding a file.
Barr, 06 -057
Page 12
b. In the Microsoft Word package, the Property boxes are basically the same
on every computer.
c. Firestine testified that the "created" date and time that appears in the
"Properties" box is the date and time to that local computer that Word would
have opened that particular file the first time.
(1) Firestine testified that the document at ID 17 was created on July 11,
2006.
g.
(2) Firestine testified that if the same document had been previously
created under a different file name, the document at ID 17 would not
reflect that.
d. Firestine testified that the "modified" date and time that appears in the
"Properties" box is last time that the document was saved.
e. Firestine testified that the "accessed" date in the "Properties" box would
show the last time the document was opened.
f. Firestine testified that the "last saved by" entry in the "Properties" box at ID
17, page 1, which states, "erbarr" appears to be a Commonwealth user
name.
Firestine testified that the "revision number" in the "Properties" box is how
many times the document was saved.
h. Firestine testified that the "total editing time" in the "Properties" box is how
long the document was opened in Word on the computer, not how long a
person actually worked on the document.
Firestine testified that the "printed" date of December 29, 2005, which
appears in the "Properties" box of ID 17, page 1, indicates usage of a pre-
existing template, which could have been letterhead, for the document.
C. Documents
21. ID 7, pages 1 -3 consist of the Respondent's Position Description as a UCC Building
Plans Examiner for the Department of Labor and Industry.
a. The Position Description sets forth the "position purpose" for Respondent's
position as follows:
Under the supervision and direction of the UCC Building Plans Examiner
Supervisor, is responsible for work involved in the examination of
architectural drawings and /or other data to determine compliance with
applicable laws and regulations...
ID 7, page 1.
b. The Position Description sets forth a description of Respondent's duties,
which includes the following:
Examines and approves architectural plans and specifications
for new construction and /or alterations to existing construction
to determine compliance with building, accessibility, fire safety,
Barr, 06 -057
Page 13
energy conservation and one or more of the following:
electrical, mechanical, plumbing or other code required under
the Uniform Construction Code.
Recommends modifications to applicant's plans to achieve
compliance with the applicable regulations and requirements.
Either grant a final approval or indicate a preliminary review
with additional data of changes to be submitted.
Updates computer records of the Bureau file and order
tracking system....
ID 7, pages 1 -2.
c. The Position Description sets forth a description of Respondent's decision -
making authority /duties as follows:
Determines compliance with applicable laws and regulations.
Approves or disapproves architectural plans. Interprets laws,
regulations and procedures for customers. Researches
telephone inquiries and prepares responses for own signature.
ID 7, page 2.
d. The Position Description sets forth the "essential functions" of
Respondent's position as follows:
1. Review and approve plans
2. Interpret laws and regulations
3. Prepare correspondence
4. Research files for previous approvals
5. Communicate orally and in writing
6. Respond to inquiries
7. Operate film equipment
ID 7, pages 2 -3.
22. ID 9, pages 1 -5 consist of a Mechanic's Lien Claim filed in June 2006 by Abom and
Kutulakis, LLP on behalf of Whisler's Well Drilling, Inc. against the Barr Property,
which claim was in the amount of $11,429.47 plus filing and Sheriff's service costs
in the amount of $114.00 and interest as provided by law.
23. ID 9, pages 6 -10 consist of a Praecipe to Amend Mechanic's Lien Claim, which
Praecipe was filed in August 2006 by Abom and Kutulakis, LLP on behalf of
Whisler's Well Drilling, Inc., reducing the claim against the Barr Property to the
amount of $8,516.27 plus filing and Sheriff's service costs in the amount of S114.00
and interest as provided by law.
a. The Praecipe to Amend Mechanic's Lien Claim included, as an Exhibit, an
invoice statement dated July 25, 2006, from Whisler's Well Drilling, Inc. to
Respondent, in the amount of $8,516.27. (ID 9, page 8).
Barr, 06 -057
Page 14
b. The Praecipe to Amend Mechanic's Lien Claim and attached invoice indicate
that the reduction in the amount of the claim was due to a payment made on
June 1, 2006.
24. ID 10 consists of a Sheriff's return dated July 11, 2006, under case number 2006-
03403 P, which indicates that the Mechanic's Lien Claim filed by Whisler's Well
Drilling, Inc. against the Barr Property was served on Respondent on July 10, 2006,
at 1828:00 hours (6:28 p.m.).
25. ID 12, pages 1 -3 consist of a letter dated July 11, 2006, to Ken Whisler of Whisler's
Well Drilling regarding the Barr Property.
a. The first page of the letter is on letterhead of the Commonwealth of
Pennsylvania, Department of Labor and Industry, Bureau of Occupational
and Industrial Safety.
b. The letter bears a designation of a file number as follows: "File # ebb71106."
c. The letter states that various enumerated violations of the 2003 International
Residential Code exist at the Barr Property.
d. The letter states, All of the violations are required to be repaired and made
legal at your expense or penalties against your company may be filed." (ID
12, page 1).
e. The final paragraph, closing, and subsequent notations on the letter are as
follows:
If you have any further questions on this matter, please
do not hesitate to call this office @ (717) 787 -3806. For
information related to the Building Code go to
www.dli.state.pa.us and go to the Building Code Quick -link.
Sincerely,
[signature]
Eric B. Barr, UCC Plan Examiner
Building Section
Enclosure
cc: Paul Sebastian — Middle Department Inspection Agency
cc: West Pennsboro Township Code Enforcement
cc: Abom & Kutulakis [sic]
(ID 12, page 3).
(1) The letter references the web site and telephone number of the
Department of Labor and Industry.
26. ID 13 consists of a letter dated May 12, 2006, from Kutulakis to Respondent,
demanding payment of an outstanding balance claimed to be due from Respondent
to Whisler's Well Drilling, Inc. in the amount of $11,429.47.
a. The letter demands payment of the claimed outstanding balance by May 31,
2006.
Barr, 06 -057
Page 15
27. ID 15 consists of a letter dated July 21, 2006, from Respondent to Ken Whisler of
Whisler's Well Drilling.
a. The letter provides, in part:
...Apparently the letter that I sent to you previously,
highlighting all of the code violations and various other
problems that I had discovered during construction was
something that I shouldn't have sent to you on a letter head
from work. At the time I really wasn't thinking about the fact
that the letter was representing the State of Pennsylvania but
just wanted you to see some of the other issues that I saw as a
result of the construction.... [A]fter you did not show up for our
meeting at our home on July 10 @ 5pm I assumed that you
again did not want to clear up this matter. At this point being
total frustration I sent the letter to you outlining all problems
t at I had with our home which I intended to send to the
Attorney General's office and to Paul Sebastion from Middle
Dept. Inspection Bureau, and to the township to get all of these
things fixed so that we could get this whole matter taken care
of.... I apologize if the letter was taken in a harmful way but as
I mentioned it was sent for information and because I was
frustrated at the fact that you didn't show up for our meeting.
(ID 15).
28. ID 17, pages 1 -2 consist of drafts or copies of the first page of the Julyl 1, 2006,
letter from Respondent to Whisler (ID 12, page 1), together with insets of the
document Properties.
29. R —1 consists of a two -page complaint dated July 18, 2006, which was filed with the
Department of Labor and Industry by Kutulakis against Respondent.
30. R -2 consists of a letter dated July 26, 2006, from Respondent to Kutulakis.
a. The letter bears the following designation above the date:
"File #ebb7262006."
b. The letter denies portions of the contents of the Kutulakis letter dated July
20, 2006 (ID 14).
c. The letter denies that Respondent stated that there was an open and active
file on anyone.
d. The letter denies that Respondent stated that the Barrs believed they owed
anything to Whisler's Well Drilling, Inc.
(1) The letter asserts that the Barrs had paid Whisler's more than the
contracted amount.
e. The letter asserts that Respondent had stated to Kutulakis that the Barrs
were looking into filing a complaint with the Office of Attorney General; the
letter denies that Respondent had stated that such a complaint had been
filed.
f. The letter states:
Barr, 06 -057
Page 16
R -2.
III. DISCUSSION:
... I also did state that we may be willing to escrow an agreed
upon amount if "ALL" not "Certain" conditions that were
addressed in my July 11, 2006 letter (File# ebb71106) were
taken care of. I also made clear to you that we were only
willing to do this to come to a quick and amicable resolution to
this matter, not admitting that we believe we owe any
amount to the Whisler's. I believe that you need to
concentrate on getting the facts from your conversations
straight before you make anymore false allegations. I have
attached a copy of a letter that was hand - delivered to the
Whisler's on Friday July 21, 2006 for your reference.... There
will be no future telephone conversations due to your lack of
ability to get the information in those conversations correct and
accurate[.]
31. R -3 consists of a two -page letter dated August 24, 2006, from Kutulakis to a Senior
Agent of the Office of Attorney General, which letter references a complaint as
having been filed by Respondent.
a. The letter states, in part, "I cannot express, once again, how much my client
and I desire to be cooperative and to offer as much information which will
result in an expeditious dismissal and resolution of Mr. Barr's complaint...."
(R -3 at 2).
32. R -4 consists of a statement dated January 10, 2006, from Whisler's Well Drilling,
Inc., to Respondent indicating a balance due in the amount of $3,837.98.
a. A handwritten notation on the statement indicates that it was paid on
January 11, 2006, by check number 1501.
D. Other Findings
33. Respondent does not dispute that he was involved in a contract dispute with
Whisler's Well Drilling. (Tr. at 28).
34. Respondent does not dispute that he wrote the letter of July 11, 2006, which is at
issue in this case (ID 12, pages 1 -3). (Tr. at 28).
35. Findings of the Investigative Complaint aver /acknowledge that the Department of
Labor and Industry has no jurisdiction over residential building disputes (see,
Investigative Complaint, paragraphs 8, 8 a, 24 a, 27 b, 28, 28 a, 35 b), and that the
Barr Property is located in a township for which residential building code
inspections are handled by Middle Department Inspection Agency, Inc. (MDIA)
3901 Hartzdale Drive, Suite 112, Camp Hill, PA 17011 (see, Investigative
Complaint, paragraphs 25, 25 a, 26).
36. Findings of the Investigative Complaint aver /acknowledge that the July 11, 2006,
letter at issue in this case (ID 12, pages 1 -3) was a fictitious letter that gave the
impression that the Department of Labor and Industry's Bureau of Occupational and
Industrial Safety was directing Whisler's Well Drilling, Inc. to correct violations of
the International Residential Code at the Barr Property or face penalties to be
imposed by the Department of Labor and Industry (see, Investigative Complaint,
paragraphs 23 -24 a, 28 a, 33, 35 a -b).
Barr, 06 -057
Page 17
The allegations before us in this matter are that Respondent Eric Barr (also referred
to herein as "Respondent," "Respondent Barr," or "Barr "), a public official /public employee
in his capacity as a UCC Plans Examiner within the Building Section of the Pennsylvania
Department of Labor and Industry, violated Section 1103(a) of the Ethics Act when he
used and /or attempted to use the authority of his public position for a private pecuniary
benefit by initiating a Department of Labor and Industry inquiry against a contractor with
which he was involved in a civil dispute over alleged nonpayment of bills.
Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
The term "conflict of interest" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding 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.
65 Pa.C.S. § 1102.
Section 1103(a) of the Ethics Act prohibits a public official /public employee from
using the authority of public office /employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public official /public
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
We shall now summarize the relevant facts.
Respondent was employed by the Commonwealth of Pennsylvania, Department of
Labor and Industry from July 28, 2003, until August 11, 2006. Respondent was employed
as a Uniform Construction Code Building Plans Examiner within the Department of Labor
and Industry's Bureau of Occupational and Industrial Safety (also referred to herein as the
"Bureau "). Respondent's duties and authority as a UCC Building Plans Examiner are set
forth in his position description, which is in evidence as ID 7, pages 1 -3. The major focus
of Respondent's position was to review architectural plans of proposed construction to
determine compliance with applicable laws, Department of Labor and Industry regulations,
and federal standards adopted by the Department of Labor and Industry. Respondent had
Barr, 06 -057
Page 18
the authority to disapprove plans or to give final approval to them. In his capacity as a
UCC Building Plans Examiner for the Department of Labor and Industry, Respondent's
decisions as to such plans had a significant economic impact upon other persons.
As a UCC Building Plans Examiner for the Department of Labor and Industry,
Respondent filed Statements of Financial Interests for calendar years 2003, 2004, and
2005. On each of these Statements of Financial Interests, Respondent designated that he
was a current public employee. Respondent also filed a Statement of Financial Interests
through the Department of Labor and Industry for calendar year 2006. On this Statement
of Financial Interests, Respondent designated that he was a former public employee.
On January 4, 2005, Respondent Barr and his wife purchased real estate, referred
to herein as the "Barr Property," at which they planned to construct a residence. The Barr
Property is located in West Pennsboro Township, Cumberland County, Pennsylvania.
The Barrs entered into contract(s) with Whisler's Well Drilling, Inc., of Newville,
Pennsylvania, for various services related to the construction of the home. A dispute
arose between Respondent and Whisler's Well Drilling, Inc. regarding work performed at
the Barr Property. Kenneth Whisler ( "Whisler "), vice - president of Whisler's Well Drilling,
Inc., testified that as a result of Respondent's refusal to pay the outstanding balance owed
for the work, Whisler's Well Drilling, Inc. placed a mechanic's lien on the Barr Property.
The mechanic's lien was filed by the law firm of Abom & Kutulakis, LLP ( "Abom &
Kutulakis ") as counsel for Whisler's Well Drilling, Inc. Attorney Kathleen Engle ( "Engle "),
who was previously employed by Abom & Kutulakis, testified that she prepared the
Mechanic's Lien Claim as well as a subsequent praecipe to amend the Claim. Engle
testified that a mechanic's lien is a contractor's lien placed on a property for work
performed, and that the effect of a mechanic's lien is that it must be paid in order for the
property to be sold.
The Mechanic's Lien Claim was filed in June 2006 and was in the amount of
$11,429.47, plus filing and Sheriff's service costs in the amount of $114.00, and interest.
(ID 9, pages 1 -5). The Mechanic's Lien Claim included a certificate of service dated June
15, 2006. Respondent admits receiving a copy of the Mechanic's Lien Claim via first -class
mail. The Mechanic's Lien Claim was also served on Respondent by the Cumberland
County Sheriff's Department on July 10, 2006.
After being served with the Mechanic's Lien Claim, Respondent issued a letter
dated July 11, 2006, to Whisler regarding the Barr Property. The letter is in evidence as
ID 12, pages 1 -3. The letter has the appearance of an official communication from the
Commonwealth of Pennsylvania, Department of Labor and Industry. Respondent used the
letterhead of the Department of Labor and Industry, Bureau of Occupational and Industrial
Safety, for the first page of the letter. The evidence establishes that Respondent had
access to Department of Labor and Industry letterhead because of his position as a UCC
Building Plans Examiner for the Department.
The letter references the web site and telephone number of the Department of
Labor and Industry. The letter bears a designation of a file number as follows: "File #
ebb71106." The letter states that various enumerated violations of the 2003 International
Residential Code exist at the Barr Property. The letter states, All of the violations are
required to be repaired and made legal at your expense or penalties against your company
may be filed." (ID 12, page 1). The final paragraph, closing, and subsequent notations on
the letter are as follows:
If you have any further questions on this matter, please
do not hesitate to call this office @ (717) 787 -3806. For
Barr, 06 -057
Page 19
information related to the Building Code go to
www.dli.state.pa.us and go to the Building Code Quick -link.
Sincerely,
[signature]
Eric B. Barr, UCC Plan Examiner
Building Section
Enclosure
cc: Paul Sebastian — Middle Department Inspection Agency
cc: West Pennsboro Township Code Enforcement
cc: Abom & Kutulakis [sic]
Respondent prepared the letter, at least in part, using the Commonwealth computer
that was assigned to him in his position with the Department of Labor and Industry.
When Ken Whisler received Respondent's July 11, 2006, letter, he telephoned and
subsequently met with Jason Kutulakis, Esquire ( "Kutulakis "), a partner with the law firm of
Abom and Kutulakis. Whisler was distraught by the letter and was concerned about the
threat of penalties set forth in the letter. Following a review of the letter, Kutulakis
concluded that the letter was a retaliatory effort by Respondent against Whisler's Well
Drilling, Inc. Kutulakis filed a complaint against Respondent with the Department of Labor
and Industry and asked that an investigation as to Respondent be initiated by the
Department.
The following additional communications are pertinent to this case.
ID 15 consists of a letter dated July 21, 2006, from Respondent to Whisler. The
letter provides, in part:
...Apparently the letter that I sent to you previously,
highlighting all of the code violations and various other
problems that I had discovered during construction was
something that I shouldn't have sent to you on a letter head
from work. At the time I really wasn't thinking about the fact
that the letter was representing the State of Pennsylvania but
just wanted you to see some of the other issues that I saw as a
result of the construction.... [A]fter you did not show up for our
meeting at our home on July 10 @ 5pm I assumed that you
again did not want to clear up this matter. At this point being
total frustration I sent the letter to you outlining all problems
t at I had with our home which I intended to send to the
Attorney General's office and to Paul Sebastion from Middle
Dept. Inspection Bureau, and to the township to get all of these
things fixed so that we could get this whole matter taken care
of. ... I apologize if the letter was taken in a harmful way but as
I mentioned it was sent for information and because I was
frustrated at the fact that you didn't show up for our meeting.
(ID 15).
ID 14 consists of a letter dated July 20, 2006, from Kutulakis to Respondent. The
letter references a telephone conversation between Kutulakis and Respondent. The letter
confirms receipt of the July 11, 2006, letter of Respondent and characterizes the letter as
pertaining to an active file opened by Respondent at the Department of Labor and
Barr, 06 -057
Page 20
Industry, Bureau of Occupational and Industrial Safety, under file number EBB 71106. The
letter references a referral by Respondent to the Office of Attorney General, which
reference Kutulakis testified was based upon an indication by Respondent that a referral
had been made to the Office of Attorney General. The letter states that Respondent had
indicated that he was willing to place $8,500.00 into Kutulakis' escrow account to be
released upon Whisler's meeting certain conditions outlined in Respondent's July 11,
2006, correspondence.
R -2 consists of a letter dated July 26, 2006, from Respondent to Kutulakis. The
letter bears the following designation above the date: "File #ebb7262006." The letter
denies portions of the contents of the Kutulakis letter dated July 20, 2006 (ID 14). The
letter denies that Respondent stated that there was an open and active file on anyone.
The letter denies that Respondent stated that the Barrs believed they owed anything to
Whisler's Well Drilling, Inc. The letter asserts that the Barrs had paid Whisler's Well
Drilling, Inc. more than the contracted amount. The letter asserts that Respondent had
stated to Kutulakis that the Barrs were looking into filing a complaint with the Office of
Attorney General; the letter denies that Respondent had stated that such a complaint had
been filed. The letter states:
R -2.
... I also did state that we may be willing to escrow an agreed
upon amount if "ALL" not "Certain" conditions that were
addressed in my July 11, 2006 letter (File# ebb71106) were
taken care of. I also made clear to you that we were only
willing to do this to come to a quick and amicable resolution to
this matter, not admitting that we believe we owe any
amount to the Whisler's. I believe that you need to
concentrate on getting the facts from your conversations
straight before you make anymore false allegations. I have
attached a copy of a letter that was hand - delivered to the
Whisler's on Friday July 21, 2006 for your reference.... There
will be no future telephone conversations due to your lack of
ability to get the information in those conversations correct and
accurate[.]
The Department of Labor and Industry conducted an investigation as to the
complaint against Respondent and held a Fact - Finding Conference with Respondent. The
Fact - Finding Conference was held on July 24, 2006. Respondent indicated during the
Fact Finding Conference that he sent the July 11, 2006, letter to Whisler because he was
frustrated. Respondent indicated that he did not imply to Mr. Whisler or his attorney that
the Department had an on -going investigation and would take actions against Mr. Whisler.
Respondent also indicated he did not tell Mr. Whisler or his attorney that he (Respondent)
opened a complaint file at the Department of Labor and Industry.
At the conclusion of the aforesaid fact - finding, it was the assessment of those
involved that Respondent did not have authority to write the July 11, 2006, letter (ID 12,
pages 1 -3). Respondent's duties and authority with the Department of Labor and Industry
did not apply to residential establishments. The Department of Labor and Industry has no
jurisdiction over residential construction in West Pennsboro Township under the UCC and
can take no actions regarding compliance with the UCC. Residential building code
inspections for West Pennsboro Township were handled by "Middle Department Inspection
Agency, Inc." (also referred to herein as "MDIA ").
Respondent was on leave without pay or benefits from July 21, 2006, until August
11, 2006. Respondent's employment with the Department of Labor and Industry was
ultimately concluded effective August 12, 2006, through a resignation.
Barr, 06 -057
Page 21
In August 2006, Abom and Kutulakis filed a Praecipe to Amend the Mechanic's Lien
Claim against the Barr Property, reducing the Claim to the amount of $8,516.27 plus filing
and Sheriff's service costs in the amount of $114.00 and interest. (ID 9, pages 6 -10). The
Claim amount was reduced due to a payment that had been received from Respondent,
and not as a result of Respondent's July 11, 2006, letter to Whisler (ID 12, pages 1 -3).
Whisler testified that the Claim remains unpaid.
Having summarized the above relevant facts, we must now determine whether the
actions of Respondent Barr violated Section 1103(a) of the Ethics Act.
The threshold issue to be determined is whether Respondent, as a Uniform
Construction Code Building Plans Examiner with the Department of Labor and Industry,
Bureau of Occupational and Industrial Safety, was a "public employee" subject to the
provisions of the Ethics Act. In New Matter filed with his Answer to the Investigative
Complaint, Respondent contends that he was not a public employee. (New Matter,
paragraph 38). The issue is significant, because Section 1103(a) of the Ethics Act only
applies to "public officials" and "public employees." 65 Pa.C.S. § 1103(a).
The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee." 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.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102.
The Regulations of this Commission similarly define the term "public employee"
and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe ":
(A) The individual normally performs his responsibility in
the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
Barr, 06 -057
Page 22
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or stop
recommendations from being sent to the person or body with
the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) The individual's recommendations or actions affect
organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of
the Commonwealth in teaching as distinguished from
administrative duties.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
(B) Commonwealth bureau directors, division chiefs or
heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary- treasurers acting
as managers, police chiefs, chief clerks, chief purchasing agents,
grant and contract managers, administrative officers, housing and
building inspectors, investigators, auditors, sewer enforcement
officers and zoning officers in all governmental bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of executive,
legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally not
considered public employes:
(A) City clerks, other clerical staff, road masters,
Barr, 06 -057
Page 23
secretaries, police officers, maintenance workers, construction
workers, equipment operators and recreation directors.
(B) Law clerks, court criers, court reporters, probation
officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
The following relevant terms are defined in the Ethics Act as follows:
§ 1102. Definitions
"Ministerial action." An action that a person performs
in a prescribed manner in obedience to the mandate of legal
authority, without regard to or the exercise of the person's own
judgment as to the desirability of the action being taken.
"Nonministerial actions." An action in which the
person exercises his own judgment as to the desirability of the
action taken.
65 Pa.C.S. § 1102.
The term "planning or zoning" is defined in this Commission's Regulations as "[a]n
action which is directed by a planning commission, zoning board, department, agency or
governmental body which involves the regulation of real property." 51 Pa. Code § 11.1.
Status as a "public employee" subject to the Ethics Act is determined by an
objective test. The objective test applies the Ethics Act's definition of the term "public
employee" and the related regulatory criteria to the powers and duties of the position itself.
Typically, the powers and duties of the position are established by objective sources that
define the position, such as the position description, job classification specifications, and
organizational chart. The objective test considers what an individual has the authority to
do in a given position based upon such objective sources, rather than the variable
functions that the individual may actually perform in the position. See, Phillips v. State
Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion 04 -002; Shienvold,
Opinion 04 -001; Shearer, Opinion 03 -011. The Commonwealth Court of Pennsylvania has
specifically considered and approved this Commission's objective test and has directed
that coverage under the Ethics Act be construed broadly and that exclusions under the
Ethics Act be construed narrowly. See, Phillips, supra.
In applying the objective test in the instant matter, it is obvious that as a Uniform
Construction Code Building Plans Examiner with the Department of Labor and Industry,
Bureau of Occupational and Industrial Safety, Respondent was a "public employee"
subject to the provisions of the Ethics Act. The major focus of Respondent's position was
to review architectural plans of proposed construction to determine compliance with
applicable laws, Department of Labor and Industry regulations, and federal standards
adopted by the Department of Labor and Industry. Respondent had the authority to
disapprove plans or to give final approval to them. In his capacity as a UCC Building
Plans Examiner for the Department of Labor and Industry, Respondent's decisions as to
such plans had a significant economic impact upon other persons. Respondent's duties
included responsibility for taking or recommending official action of a nonministerial nature
with regard to category (3) and /or category (5) of the Ethics Act's definition of "public
employee," specifically, "planning or zoning" or 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.
Barr, 06 -057
Page 24
Having determined that as a Uniform Construction Code Building Plans Examiner
with the Department of Labor and Industry, Bureau of Occupational and Industrial Safety,
Respondent was a "public employee" subject to the provisions of the Ethics Act, we shall
now determine whether the evidence before us would satisfy the elements for a violation of
Section 1103(a) of the Ethics Act. We note that 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 (Pa. 1998) (Citation omitted).
The particular conduct that we are reviewing is Respondent's preparation and
issuance of the July 11, 2006, letter to Whisler using a Commonwealth computer,
Department of Labor and Industry letterhead, and the characteristics of an official
communication from the Department of Labor and Industry. The evidence establishes that
Respondent had access to the Department of Labor and Industry computer and letterhead
because of his position as a UCC Building Plans Examiner for the Department. But for
being in his Commonwealth position, Respondent would not have had such access.
Additionally, Respondent referenced the web site and telephone number of the
Department of Labor and Industry, a purported file number, and his job title and assigned
Section at Labor and Industry for the communication. The letter appears official, stating
that various enumerated violations of the 2003 International Residential Code exist at the
Barr Property. The letter states, All of the violations are required to be repaired and made
legal at your expense or penalties against your company may be filed." (ID 12, page 1).
Based upon the above, we determine that the element of a use of authority of the
public position has been established.
As for the element of a private pecuniary benefit, we find that the aforesaid letter
was an attempt by Respondent to obtain a private pecuniary benefit for himself and his
spouse by financially impacting the dispute between Respondent and Whisler's Well
Drilling, Inc. Regardless of whether the outcome would have been to cause Whisler's Well
Drilling, Inc. to: (1) fix the purported violations at its own expense, without further expense
to Respondent; (2) withdraw the mechanic's lien against the Barr Property; or (3) forego
potential further collection actions as to the outstanding balance claimed by Whisler's Well
Drilling, Inc., the result would have been a pecuniary benefit to Respondent and his
spouse. The evidence establishes that the letter was in fact used as a negotiation tool in
furtherance of item (1) above, per the letters in evidence as ID 14 and ID 15.
A use of authority of office for an actual or attempted private pecuniary benefit is
sufficient to establish a violation of Section 1103(a) of the Ethics Act. See, Santore, Order
1152; Metrick, Order 1037; Taylor, Order 983. We find that all of the elements for a
violation of Section 1103(a) of the Ethics Act have been established in this case.
We shall now review the various legal arguments raised by Respondent.
In New Matter submitted with his Answer to the Investigative Complaint,
Respondent argues: (1) that Respondent did not use the authority of his public
employment for the private pecuniary benefit of himself or his family, and that Respondent
did not realize any private pecuniary benefit for himself or any member of his immediate
family; (2) that the Investigative Complaint does not set forth a conflict of interest because
the alleged misconduct of Respondent had at most a de minimis economic impact upon the
Commonwealth; and (3) that this Commission does not have the power or jurisdiction to
investigate or adjudicate this matter. (New Matter paragraphs 39 -41, 43).
Barr, 06 -057
Page 25
In Respondent's opening statement at the hearing in this matter, Respondent
argues that in order for a violation to be found, Respondent must have attempted to realize
pecuniary gain and must have actually realized pecuniary gain. (Tr. at 28).
Respondent's Motion to Dismiss, made at the conclusion of the hearing in this
matter, asserts: (1) that there has been no evidence of an actual pecuniary "case "; (2) that
there has been no evidence that Respondent had authority in his office to act
inappropriately, and that the issue is not whether Respondent acted inappropriately; and
(3) that the prosecution did not meet its burden. (Tr. at 223 -224).
In Respondent's Brief, Respondent argues: (1) that the Investigative Division has
failed to prove the allegation in the Investigative Complaint, specifically, that Respondent
violated the Ethics Act when he used and /or attempted to use the authority of his public
position for a private pecuniary benefit by initiating a Department of Labor and Industry
Inquiry against a contractor who he was involved with in a civil dispute over alleged
unpayment of bills," because Respondent did not and could not initiate such an inquiry;(2)
that a violation of Section 1103(a) of the Ethics Act may not be based upon an attempt to
use authority or to realize private pecuniary benefit; and (3) that a violation may not be
found where Respondent realized no private pecuniary benefit, but rather suffered
financial losses (loss of his job, suspension of his certification) as a result of his actions
and the evidence did not establish any adverse economic impact on the Commonwealth.
In considering Respondent's legal arguments, we reject Respondent's assertion (for
which Respondent cites no legal authority) that this Commission does not have the power
or jurisdiction to investigate or adjudicate this matter. To the contrary, this Commission
has the express statutory authority and jurisdiction to do so, as provided by Sections 1107
and 1108 of the Ethics Act.
We disagree with Respondent's arguments that the elements of a violation of
Section 1103(a) of the Ethics Act have not been met and that a violation may not be based
upon an attempt. As set forth above, it is our determination that the elements of a violation
of Section 1103(a) of the Ethics Act have been established in this case. Furthermore, a
violation may be based upon an attempt, as per this Commission's precedents cited above.
We reject Respondent's argument that no violation exists because Respondent
ultimately suffered adverse consequences when his actions were brought to light through a
complaint filed with the Department of Labor and Industry. The fact that Respondent's
actions ultimately resulted in adverse consequences does not negate the fact that
Respondent used the authority of his public position in an attempt to obtain a private
pecuniary benefit.
We shall now address Respondent's arguments that no violation exists based upon
Respondent's assertions that the evidence did not establish any adverse economic impact
upon the Commonwealth and that the economic impact upon the Commonwealth was de
minimis.
We note that the Ethics Act does not specify which economic impact(s) must be
insignificant in order for the "de minimis" exclusion to the definition of "conflict" or "conflict
of interest" to apply. In Kraines v. State Ethics Commission, 805 A.2d 677 (Pa. Cmwlth.
2002), alloc. den., 572 Pa. 761, 818 A.2d 506 (2003), a three - Member panel of
Commonwealth Court considered the economic impact upon the political subdivision. In
Salem Township Municipal Authority v. Township of Salem, 820 A.2d 888 (Pa. Cmwlth.
2003), a different three - Member panel of Commonwealth Court considered the economic
impact upon the public officials. In Bixler v. State Ethics Commission, 847 A.2d 785 (Pa.
Cmwlth. 2004), sixteen Members of Commonwealth Court considered both the impact upon
the political subdivision and the impact upon the public official's employer. Based upon
Bixler, it would seem that the correct approach is to consider all of the relevant economic
Barr, 06 -057
Page 26
impacts. If all are insignificant, the de minimis exception should be found to apply;
however, if any one of them is not de minimis, the de minimis exception should not apply.
In the instant matter, the economic impact sought by Respondent as to himself and
his spouse was not de minimis. Respondent was disputing a Claim by Whisler's Well
Drilling, Inc. for an amount in excess of $8,500.00 for work that Respondent found to be
unsatisfactory. Whisler's Well Drilling, Inc. had placed a mechanic's lien on Respondent's
property. Respondent was at risk of having to not only pay the disputed Claim to Whisler's
Well Drilling, Inc., but also to pay additional monies to correct the problems he identified
as to the work performed by Whisler's Well Drilling, Inc. Given our determination that the
economic impact sought by Respondent was not de minimis, we need not address the
economic impact upon the Commonwealth.
We disagree with Respondent's argument, proffered in support of his Motion to
Dismiss, that a violation of Section 1103(a) may not be found because there is no
evidence that Respondent had authority in his public position to act inappropriately. It
would be an absurd interpretation of Section 1103(a) to require that in order to find a
violation, a respondent's authority in his public position must permit him to act
inappropriately. In statutory construction, it may be presumed "[t]hat the General
Assembly does not intend a result that is absurd, impossible of execution or
unreasonable." 1 Pa.C.S. § 1922(1). Rather, a conflict of interest is based upon an
inappropriate use of the authority of the public position or confidential information
accessed by being in the public position, for a private pecuniary benefit, whether actual or
attempted.
We shall now address Respondent's final legal argument, which is based upon the
wording of the allegation set forth in the Investigative Complaint. As noted above, the
allegation is as follows:
That Eric Barr, a (public official /public employee) in his
capacity as a UCC Plan Examiner, Building Section of the
Pennsylvania Department of Labor and Industry violated the
following provisions of the State Ethics Act (Act 93 of 1998)
when he used and /or attempted to use the authority of his
public position for a private pecuniary benefit by initiating a
Department of Labor and Industry Inquiry against a contractor
who he was involved with in a civil dispute over alleged
unpayment of bills.
Investigative Complaint, at 2 (Emphasis added) (referencing Section 1103(a) of the Ethics
Act and the definition of "conflict" or "conflict of interest" at Section 1102 of the Ethics Act).
The Respondent focuses upon the language underlined above and asserts that the
Investigative Complaint did not include findings that any Department of Labor and Industry
inquiry as to Whisler's Well Drilling, Inc. occurred. Respondent points out particular
Findings of the Investigative Complaint, which specifically aver that the Department of
Labor and Industry had no jurisdiction over residential building disputes, and thus no
authority to initiate such an inquiry. Respondent's Brief, at 7 -8 (citing Investigative
Complaint, paragraphs 10, 24 a, 27 b). Respondent further cites in support of this
argument certain testimony at pages 101 -102 of the hearing transcript, which testimony
was produced at the hearing during questioning by Counsel for the Investigative Division,
without objection by Respondent.
We are mindful that due process requires that we not depart from the allegations.
Pennsy v. Department of State, 594 A.2d 845 (Pa. Cmwlth. 1991). However, we are also
mindful that for both state and federal administrative proceedings, it is a general principle
of administrative law that administrative pleadings are very liberally construed. (see,
Barr, 06 -057
Page 27
CHARLES KOCH, JR., ADMINISTRATIVE LAW AND PRACTICE, § 5.33 (1) and (6), at 128, 132 (2
ed. 1997)). "Due process of law is afforded in administrative proceedings when the
accused is informed with reasonable certainty of the substance of the charges so that the
accused may adequately prepare a defense," Pennsy v. Department of State, 594 A.2d
845 (Pa. Cmwlth. 1991) (see also, Dunn v. Department of Transportation, 819 A.2d 189
(Pa. Cmwlth. 2003); Straw v. Human Relations Commission, 308 A.2d 619 (Pa. Cmwlth.
1973), affirmed, 478 Pa. 463, 387 A.2d 75 (1978)). See also, Commonwealth of
Pennsylvania, Department of Transportation v. Sutton, 541 Pa. 35, 660 A.2d 46 (1995).
We determine that the requirements of due process were met in this case.
First, the allegation adequately encompasses Respondent's conduct in preparing
and issuing the July 11, 2006, letter, which letter was a fictitious but ostensibly official
notification to Whisler's Well Drilling, Inc., that an inquiry had been initiated with the
Department of Labor and Industry.
Furthermore, the Investigative Complaint does not consist of the allegation alone.
To the contrary, in addition to the allegation, the Investigative Complaint also includes
numerous Findings averring /acknowledging: (1) that the Department of Labor and Industry
has no jurisdiction over residential building disputes (see, Investigative Complaint,
paragraphs 8, 8 a, 24 a, 27 b, 28, 28 a, 35 b); (2) that the Barr Property is located in a
township for which residential building code inspections are handled by Middle Department
Inspection Agency, Inc. (see, Investigative Complaint, paragraphs 25, 25 a, 26); and (3)
that the July 11, 2006, letter at issue in this case (ID 12, pages 1 -3) was a fictitious letter
that gave the impression that the Department of Labor and Industry's Bureau of
Occupational and Industrial Safety was directing Whisler's Well Drilling, Inc. to correct
violations of the International Residential Code at the Barr Property or face penalties to be
imposed by the Department of Labor and Industry (see, Investigative Complaint,
paragraphs 23 -24 a, 28 a, 33, 35 a -b).
We determine that the allegation, individually or in combination with the Findings of
the Investigative Complaint, informed Respondent with reasonable certainty of the
substance of the accusations against him so that he was able to adequately prepare a
defense. Cf., Sharp's Convalescent Home v. Department of Public Welfare, 300 A.2d 909
(Pa. Cmwlth. 1973). Indeed, the very fact that Respondent references paragraphs 24 a
and 27 b of the Investigative Complaint in support of Respondent's argument demonstrates
that Respondent was well aware of the accusations against him. Respondent cannot claim
surprise, lack of due process, or prejudice, because Respondent had actual knowledge of
the theory alleged by the Investigative Division.
Our determination that Respondent's final legal argument is without merit requires
no further analysis; however, we would parenthetically note that the General Rules of
Administrative Practice and Procedure provide, "When, at a hearing, issues not raised by
the pleadings are introduced by express or implied consent of the parties, they shall be
treated as if they had been raised in the pleadings...." 1 Pa. Code § 35.49. Our own
Regulations have not superseded 1 Pa. Code § 35.49.
Based upon the above analysis, we deny Respondent's Motion to Dismiss. We hold
that Respondent violated Section 1103(a) of the Ethics Act when he used the authority of
his public position as a Uniform Construction Code Building Plans Examiner with the
Pennsylvania Department of Labor and Industry, Bureau of Occupational and Industrial
Safety, to create and issue a notification, purportedly from the Department of Labor and
Industry, regarding the initiation of an inquiry, the alleged existence of building code
violations, and potential penalties, to a contractor with which he was involved in a civil
dispute over alleged nonpayment of bills.
Based upon the totality of the facts and circumstances in this case, we do not
impose a monetary penalty or direct a referral to law enforcement authorities.
Barr, 06 -057
Page 28
IV. CONCLUSIONS OF LAW:
1. Eric Barr ( "Barr "), in his capacity as a Uniform Construction Code Building Plans
Examiner with the Commonwealth of Pennsylvania Department of Labor and
Industry, Bureau of Occupational and Industrial Safety, during the time period from
July 28, 2003, to August 11, 2006, was a public employee subject to the provisions
of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et
seq.
2. Barr violated Section 1103(a) of the Ethics Act when he used the authority of his
public position as a Uniform Construction Code Building Plans Examiner with the
Pennsylvania Department of Labor and Industry, Bureau of Occupational and
Industrial Safety, to create and issue a notification, purportedly from the Department
of Labor and Industry, regarding the initiation of an inquiry, the alleged existence of
building code violations, and potential penalties, to a contractor with which he was
involved in a civil dispute over alleged nonpayment of bills.
In Re: Eric Barr,
Respondent
ORDER NO. 1452
File Docket: 06 -057
Date Decided: 1/28/08
Date Mailed: 2/15/08
Eric Barr, a public employee in his capacity as a Uniform Construction Code Building Plans
Examiner with the Commonwealth of Pennsylvania Department of Labor and Industry
( "Department of Labor and Industry "), Bureau of Occupational and Industrial Safety
( "Bureau "), during the time period from July 28, 2003, to August 11, 2006, violated Section
1103(a) of the Ethics Act when he used the authority of his aforesaid public position as a
Uniform Construction Code Building Plans Examiner with the Bureau to create and issue a
notification, purportedly from the Department of Labor and Industry, regarding the initiation
of an inquiry, the alleged existence of building code violations, and potential penalties, to a
contractor with which he was involved in a civil dispute over alleged nonpayment of bills.
BY THE COMMISSION,
Louis W. Fryman, Chair