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HomeMy WebLinkAbout1647 Kirkland In Re: Representative Thaddeus Kirkland, : File Docket: 13-006 Respondent : X-ref: Order No. 1647 : Date Decided: 9/30/14 : Date Mailed: 10/20/14 Before: John J. Bolger, Chair Nicholas A. Colafella, Vice Chair Raquel K. Bergen Mark R. Corrigan Roger Nick Kathryn Streeter Lewis Maria Feeley This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding possible violation(s) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., by the above-named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation. 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 requested. A Stipulation of Findings and a Consent Agreement were subsequently submitted by the parties to the Commission for consideration. The Stipulated Findings are set forth as the Findings in this Order. The Consent Agreement has been approved. I.ALLEGATIONS: That Thaddeus Kirkland, a public official/public employee in his capacity as Member of the Pennsylvania House of Representatives representing the 159th State House District, violated Section 1103(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § 1103(a), when he used the authority of his public position for a private pecuniary benefit of himself, members of his immediate family and/or entities with which he and/or members of his immediate family are associated by recommending that grants be awarded to entities with which he and/or members of his immediate family are associated and when he and/or members of his immediate family received payments from those grant funds. II.FINDINGS: 1. Thaddeus Kirkland has served as a Member of the Pennsylvania House of Representatives since January 1993. a. Representative Kirkland was first elected to the House of Representatives in November 1992 and was re-elected to ten (10) consecutive terms. th 2. Representative Kirkland represents the 159 Legislative District, which includes the following communities: Kirkland, 13-006 Page 2 a. Chester City, Chester Township, Eddystone, Marcus Hook, Trainer, Upland, Upper Chichester Township (WD 02 Dist 02), Lower Chichester Township, Ridley Township (WD 02 PCT 02) and Parkside. 3. Representative Kirkland maintains an office in the Capitol complex, a district office in Chester, Pennsylvania, and a satellite office in Marcus Hook, Pennsylvania. 4. The Pennsylvania Department of Community and Economic Development (“DCED”) is a cabinet-level, state government agency organized within the Executive Branch and under the jurisdiction of the Governor of Pennsylvania. a. DCED was established in 1996 upon the merging of the Department of Commerce and Department of Community Affairs. b. An official function of DCED is to provide and monitor grant funding to community groups and local governments. 5. From or about the 1970’s until 2011, state funded grants were available to various entities, as well as local government groups, to assist in funding specific projects or endeavors. a. Members of the General Assembly would often support or recommend funding to these entities/local government groups, through state grants, for projects within the Members’ respective legislative districts. 6. Following a decision in Common Cause of Pennsylvania v. Commonwealth, 668 A.2d 190 (Pa. 1995), funding for local projects began to be provided through “Legislative Initiative Grants.” 7. When DCED was established in 1996, the Legislative Initiative Grants were to be issued through the Office of the Governor. 8. All applications for Legislative Initiative Grants were processed through DCED. a. Grants processed through DCED are funded through three programs:  Economic Advancement Program (“EAP”);  Community Conservation and Employment Program (“ECC”); and  Community Revitalization Program (“CRP”). 9. Although Legislative Initiative Grants have not been funded beginning with the 2011-2012 fiscal year, the terms of any contracts for Legislative Initiative Grants initiated prior to 2011 were honored until the terms of that contract were completed. 10. During the time period 2008 through 2010, and apparently for some time prior to that period, the process by which entities applying for Legislative Initiative Grants were approved for funding included the following: a. Entities to receive funding were recommended first by one of the four caucuses of the State House and Senate. 1. The recommendations could be made by either the Caucus Leadership or by a Legislator. 2. Caucuses would then designate which entities would be recommended for funding through Legislative Initiative Grants. Kirkland, 13-006 Page 3 b. The entities recommended for funding from all four caucuses would then be sent to the Governor’s Office of the Budget. c. The Office of the Budget reviewed the applications of all Legislative Initiative Grant recipients recommended for funding by the four Caucuses of the General Assembly. 1. The Office of the Budget asserts that it made no determination as to which entities would be recommended to receive Legislative Initiative Grants. 2. The Office of the Budget would forward the applications of entities recommended to receive Legislative Initiative Grant funding to the Operations Division of DCED. d. The Operations Division of DCED asserts that it was only responsible for determining if the entities recommended to receive Legislative Initiative Grant funding were up to date with payment of taxes to the Pennsylvania Department of Revenue, and whether the application was complete and documented the proposed uses of the Legislative Initiative Grant funds. e. If the entity’s application was complete and was recommended to receive funding from one of the four legislative caucuses, the Operations Division of DCED asserts that it would issue an approval letter to the entity followed by a contract to be executed between DCED and the entity receiving funding. f. Contracts entered into between DCED and the funded entity were generally to be finalized within three (3) years, but could be extended for up to five (5) years. g. When the terms of the contract were completed, the grantee entity was required to submit a closeout report that was reviewed by the Audit and Compliance Division of DCED. If the grant amount was $100,000 or more, DCED policy was that the grantee entity was required to hire an independent auditor to complete an audit report to be submitted with the Closeout Report. 11. DCED asserts that it played no role in approving an entity for a Legislative Initiative Grant, other than verifying that the application was complete, no past due taxes were owed to the Department of Revenue, and applicants were in compliance with Labor regulations of the Department of Labor & Industry. 12. The Office of the Budget forwarded the list of entities recommended to receive Legislative Initiative Grant funding from all four legislative caucuses, to the DCED. 13. Kirkland asserts that pursuant to Common Cause v. Commonwealth, it was the responsibility of the Executive Branch, through the Governor’s Office of the Budget, to make the final determination as to funding of Legislative Initiative Grants. a. The Investigative Division does not dispute the language of Common Cause v. Commonwealth, 668 A.2d 190, 206 (Pa. Commw. Ct. 1995), but asserts that contrary information was provided to Commission staff by representatives of that office. 14. Representatives from DCED assert that approval letters and contracts forwarded from DCED to organizations receiving Legislative Initiative Grants were based on the recommended lists received from the Office of the Budget. Kirkland, 13-006 Page 4 15. Contracts would then be prepared, negotiated and executed. Typically, the process from recommendation through execution took at least several months. th 16. Entities located in Representative Thaddeus Kirkland’s legislative district (159) regularly received Legislative Initiative Grants during Representative Kirkland’s tenure in the House. a. Entities located within Representative Kirkland’s Legislative District receiving Legislative Initiative Grants included, but were not limited to: Across Colors Cultural Committee and the Chester Fine Arts Center East. b. Members of Representative Kirkland’s immediate family are/were associated with the above organizations. 17. Staff from Representative Kirkland’s Chester District Office would provide assistance to entities/individuals in his district seeking Legislative Initiative Grants by assisting in completing grant applications. a. Joan Neal, Chester Office Chief of Staff, maintained documents which were used to assist grant applicants in completing the grant application form. b. The policy of Representative Kirkland’s office was to assist any applicant who requested assistance with their application. c. After the grant applications were completed, Neal would log the applications at Representative Kirkland’s District Office. d. When she believed appropriate, Ms. Neal would consult with Representative Kirkland to determine which priority would be requested from the leadership of the Democratic House Caucus for Legislative Initiative Grant funding in the 159th District. e. Ms. Neal would maintain contact with Lisa Renee Fuller, Fiscal Assistant for the Democratic House Caucus, as to the status of the Legislative Initiative Grants applications from Representative Kirkland’s district. THE FOLLOWING FINDINGS RELATE TO LEGISLATIVE INITIATIVE GRANT FOR ACROSS COLORS CULTURAL COMMITTEE. 18. Across Colors Cultural Committee (“ACCC”) was established approximately twenty (20) years ago to help organize and conduct an annual festival held in the City of Chester. a. ACCC is not registered with the Pennsylvania Department of State as an incorporated entity – either for or not for profit. b. The ACCC festival is an annual event established with the stated purpose of bringing together the various cultures in the City of Chester through food, music, dance and dress of the multi-ethnic groups of the community. 19. ACCC received a Legislative Initiative Grant in 2009. 20. Kirkland’s daughter and sister were officers of ACCC in 2009. a. The President of ACCC is LaShanda Wooten, daughter of Representative Kirkland. Kirkland, 13-006 Page 5 b. Treasurer of the ACCC is Leola Williams, sister of Representative Kirkland. c. The official address of ACCC is the home address of Representative Kirkland’s sister, Leola Williams. 21. From its founding in 1994 until today, Representative Kirkland’s office has been a primary sponsor of the Across Colors Cultural Festival. ACCC annually stages the Across the Colors Cultural Festival. 22. In 2009, ACCC received a Legislative Initiative Grant of $85,000 which was administered through DCED. 23. A Legislative Initiative Grant contract (Contract #C000038574) was executed between DCED and ACCC for 2009. a. Contract #C000038574 was executed on March 14, 2009, by ACCC and by DCED on March 19, 2009. 24. Contract #C000038574 required the grant funds to be spent during the contract period which was generally three (3) years. Reports indicate that all funds were spent in 2009 in connection with the 2009 Across the Colors Cultural Festival. 25. Applications for Legislative Initiative Grants filed on behalf of ACCC were forwarded to Lisa Renee Fuller, Fiscal Assistant to House Democratic Appropriations Chairman Dwight Evans, by or at the direction of Representative Kirkland. 26. On April 21, 2009, DCED Director of Operations, Richard Guinan, forwarded LaShanda Wooten the fully executed contract for Contract #C000038574. 27. ACCC submitted the following proposed uses of grant funds pursuant to Contract #C000038574 to DCED: Type of Expense Amount Six Professional Entertainers (Singing groups) $42,000.00 Professional Stage and Equipment $10,000.00 Two Program Consultants/Coordinators $8,000.00 One Professional Dance Group $10,000.00 Five Security Personnel $5,000.00 New Equipment/Chair Rentals (Tents, Tables, $5,000.00 T-shirts) Advertisement (Radio and Billboards) $3,000.00 Food for four hundred children $2,000.00 (Hot dogs, Hamburgers, etc.) $85,000.00 28. A closeout report was submitted by ACCC to DCED reporting the expenditures for Contract #C000038574. 29. Included in the closeout report was a $2,000 payment to Tyra Starr. 30. Payments issued from ACCC checking account \[account number redacted\] include a $2,000 payment to Tyra Starr through check 1469 on July 27, 2009, for the purpose of “Perform for Festival.” Kirkland, 13-006 Page 6 31. Tyra Starr was, at the time, a professional vocalist, and she and her band regularly were paid to perform. She asserts that the $2,000 payment to her and her band was below her market rate in 2009. 32. Joan Neal, the Chief of Staff for Representative Kirkland’s Legislative District Office in Chester, Pennsylvania, would assist entities/individuals, including ACCC, seeking Legislative Initiative Grants in completing the appropriate applications. a. Neal provided this assistance as part of her general job duties and with the knowledge of Representative Kirkland. b. Duties performed by Neal for the festivals included contacting singers, making hotel reservations, and ordering tents and chairs. 33. Representative Kirkland made recommendations to the House Democratic Caucus that ACCC receive Legislative Initiative Grants in 2009. a. At the time that Representative Kirkland was recommending grants for ACCC, his daughter served as the Committee’s President and his sister served as the Treasurer. 34. Representative Kirkland’s recommendations facilitated the awarding of an $85,000 Legislative Initiative Grant to ACCC in 2009. a. At the time Representative Kirkland recommended the awarding of this grant to ACCC, he was aware that his daughter would possibly receive payments emanating from those grant funds. THE FOLLOWING FINDINGS RELATE TO LEGISLATIVE GRANTS RECEIVED BY THE CHESTER FINE ARTS CENTER EAST. 35. The Chester Fine Arts Center East (“CFACE”) was established in or around 1976. a. The non-profit corporation was established by the late Rev. Anzer Kirkland, brother of Representative Thaddeus Kirkland, who passed away on September 9, 2012. 36. Articles of Incorporation, establishing the CFACE, were filed with the Corporation Bureau of the Pennsylvania Department of State on March 22, 1979. a. The corporation was established to provide a neighborhood facility for the encouragement, perpetuation, enhancement, appreciation, and production of staging of cultural activities such as dance, music and theatre. b. At the time, the officers of the corporation were Anzer Kirkland, Barbara Mills and John Thomas. 37. Susie Kirkland today serves as CFACE Board President; \[Susie Kirkland also served as CFACE Board President\] in the period from 2008-2010. 38. CFACE is located in the 159th Legislative District. 39. Prior to the time covered by the investigation in this matter, a Legislative Initiative Grant Contract (#C000031870) for $100,000 in funding between CFACE and DCED was executed. An Amended Contract was executed by CFACE on 6/22/2010 and by DCED on 6/29/2010. Kirkland, 13-006 Page 7 40. CFACE’s application submitted to DCED for the Legislative Initiative Grant sought funding to be utilized in “seek\[ing\] a highly qualified Executive Director that will not only maintain the present status quo but take the center to the next level with development and implementation of the new capital campaign as well as identifying and engaging new funding sources.” a. In the initial contract, CFACE’s grant application proposed Salaries and Fringe Benefits of the Executive Director in an amount of $65,000. 41. On August 15, 2008, $100,000 from the Legislative Initiative Grant (Contract #C000031870) was deposited/credited to CFACE account \[account number redacted\]. 42. On September 18, 2008, a $90,000 payment was made to a CFACE account to fund the position of executive director from CFACE account no. \[account number redacted\]. 43. On April 27, 2010, CFACE forwarded a letter to the Director of the Audits and Compliance Division of DCED, requesting a change in fund distribution for Contract #C000031870 to increase the Office Administrator/Executive Director salary from $65,000 to $88,000. 44. Susan Wealand, Economic Analyst for DCED’s Operations Division--the unit responsible for authorizing changes to Legislative Initiative Grants--submitted an email dated May 20, 2010, to Carol Moyer of the Governor’s Budget Office, and Richard Guinan, Chief of the Operations Division of DCED, requesting review and approval of the proposed amendments to the grant disbursement. 45. Sometime between May 20, 2010, and May 24, 2010, Carol Moyer of the Governor’s Budget Office contacted Lisa Renee Fuller of the House Democratic Caucus regarding the requested changes for the CFACE. 46. Fuller emailed Joan Neal, Chief of Staff for Representative Kirkland, on May 24, 2010, regarding the change of scope to CFACE’s grant: From: Lisa Fuller Sent: Monday, May 24, 2010, 9:57 a.m. To: Joan Neal Subject: FY 07/08 DCED Grant-request for change of scope Joan, an organization from FY 07/08 that Representative Kirkland recommended for funding through DCED is requesting a change in scope to their originally approved project. Can you please check with your member to see if the organization’s request to use the funds for another purpose is okay with him and let me know? I need a response ASAP. Thanks. FY/round: RY 07/08 round 1 Organization’s name: Chester Fine Arts Center East, Inc. Application #: 200709280858 Amount awarded by DCED: 100,000.00 Originally requested/approved project: Center operating expenses Kirkland, 13-006 Page 8 The budget change – administrator, Project description for a new project: utilities, insurance, trash and promotions 47. Neal responded to Fuller’s email as follows: From: Neal, Joan To: Lisa Fuller Subject: RE: 07/08 DCED grant – request for change of scope Date: Monday, May 24, 2010 103:50 p.m. \[sic\] Hi Lisa, The change is fine with Rep. Kirkland. 48. Based on Neal’s email response of May 24, 2010, Fuller contacted Carol Moyer of the Governor’s Budget Office to advise that the changes made for CFACE were acceptable to/authorized by Representative Kirkland. a. On June 3, 2010, Carol Moyer emailed Richard Guinan and Susan Wealand, informing them that the amendments had been reviewed and were acceptable. b. Representative Kirkland agreed with the change in the scope of the Legislative Initiative Grant which reallocated compensation to the CFACE Executive Director at a time when his spouse, Susie Kirkland, was serving as CFACE Board President. c. The change in scope did not alter the amount of the grant awarded to CFACE. All funds pursuant to Contract #C000031870 were disbursed in 2008/2009. 49. An audit conducted by Giorgio Fieo of Peterson, Fieo & Co. of the Chester Fine Arts Center East, Inc. Legislative Initiative Grant Contract #C000031870 confirmed the expenditure of $90,728 of grants to the Executive Director position. a. When the terms of the contract were completed, the grantee (entity) was required to submit a closeout report that was reviewed by the Audit and Compliance Division of DCED. 1. If the grant amount was $100,000 or more, the grantee (entity) was required to hire an independent auditor to complete an audit report to be submitted with the Closeout Report. 50. In or about July 2008, CFACE submitted two (2) additional Legislative Initiative Grant applications. a. These applications were submitted two (2) months prior to the receipt of the $100,000 Legislative Initiative Grant for Contract #C000031870. b. In 2009 and 2010, CFACE received Legislative Initiative Grants of $14,000 and $14,500 respectively. c. The grant applications were submitted to the House Democratic Caucus through Representative Kirkland’s office in 2008. 51. Contracts between DCED and the CFACE in 2009 and 2010 included the following: a. The 2009 calendar year Contract (#C000037474) was executed on February 9, 2009,by CFACE and on February 18, 2009, by DCED. Kirkland, 13-006 Page 9 b. The 2010 calendar year Contract (#C00004407) was executed on January 3 and 4, 2010, by CFACE and on January 11, 2010, by DCED. 52. The proposed use of funds received pursuant to the 2009 Legislative Initiative Grant (#C000037474) were to expand dance programs and pay for compensation of instructors, facility rental/utility costs, and professional consulting services. 53. The 2010 (#C00004407) proposed use of Legislative Initiative Grant funds was to implement a film program entitled “FACT,” in which participants were to learn hands on technical knowledge of the commercial and film industry using state of the art equipment. Funds were needed to pay for instructors, equipment purchase, facility rental and professional consulting services. 54. Closeout Reports were filed by Anzer Kirkland with DCED on October 29, 2011, for Contract #C000037474 and August 30, 2011, for Contract #C00004407. a. DCED accepted the Closeout Reports that were completed by CFACE for contracts #C000037474 and #C00004407. 55. From December 19, 2007, until November 30, 2009, the prevailing law in the Commonwealth was the decision of the Commonwealth Court finding that not-for- profit businesses were not considered a “business with which \[one\] is associated” for purposes of the Ethics Act. Rendell v. Pa. State Ethics Commission, 938 A.2d * 554 (Pa. Commw. Ct. 2007). The Commonwealth Court decision followed a Pennsylvania Supreme Court 2006 decision interpreting the Ethics Act in the election law context. See, In re Nom. Pet. Of Carroll, 586 Pa. 624, 896 A.2d 566 (2006). * \[sic\]. \[See, Rendell v. Pa. State Ethics Commission, 961 A.2d 209 (Pa. Commw. Ct. 2008).\] 56. The Supreme Court reversed that interpretation on November 30, 2009. Rendell v. Pa. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009). 57. All of the Legislative Initiative Grants identified herein were recommended for funding prior to November 30, 2009. 58. Several Legislative Initiative Grants sought by entities/businesses/non-profit corporations, some of which were associated with members of Representative Thaddeus Kirkland’s immediate family, were applied for through Representative Kirkland’s district office and subsequently recommended for funding by Representative Kirkland as a Representative and Member of the Pennsylvania General Assembly. a. A Legislative Initiative Grant was awarded to ACCC at a time when members of Representative Kirkland’s immediate family were associated with ACCC. b. Representative Kirkland’s daughter received $2,000 from the Legislative Initiative Grant to ACCC, as payment for her and her band’s performance at the ACCC Festival. III.DISCUSSION: As a Member of the Pennsylvania House of Representatives since January 1993, Respondent Thaddeus Kirkland (hereinafter also referred to as “Respondent,” Kirkland, 13-006 Page 10 “Respondent Kirkland,” and “Kirkland”) has been a public officialsubject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. The allegations are that Respondent Kirkland violated Section 1103(a) of the Ethics Act when he used the authority of his aforesaid public position for the private pecuniary benefit of himself, members of his immediate family and/or entities with which he and/or members of his immediate family are associated by recommending that grants be awarded to entities with which he and/or members of his immediate family are associated and when he and/or members of his immediate family received payments from those grant funds. 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. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are set forth above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Respondent has served as a Member of the Pennsylvania House of th Representatives since January 1993. Respondent represents the 159 Legislative District. This matter involves state funded grants known as “Legislative Initiative Grants.” During the time period of 2008 through 2010, the process by which entities applying for Legislative Initiative Grants were approved for funding included the following: Kirkland, 13-006 Page 11 (1) Entities to receive funding were recommended first by one of the four caucuses of the State House and Senate. The recommendations could be made by either the Caucus Leadership or by a Legislator. (2) Caucuses would then designate which entities would be recommended for funding through Legislative Initiative Grants. The entities recommended for funding from all four caucuses would then be sent to the Governor’s Office of the Budget. (3) The Office of the Budget would review the applications of those recommended for Legislative Initiative Grants by the four caucuses of the General Assembly. The Office of the Budget asserts that it made no determination as to which entities would be recommended to receive Legislative Initiative Grants. The Office of the Budget would forward the applications of entities recommended to receive Legislative Initiative Grant funding to the Operations Division of the Pennsylvania Department of Community and Economic Development (“DCED”). (4) DCED asserts that it played no role in approving an entity for a Legislative Initiative Grant, other than verifying that the application was complete, no past due taxes were owed to the Department of Revenue, and applicants were in compliance with Labor regulations of the Department of Labor & Industry. If the entity’s application was complete and was recommended to receive funding from one of the four legislative caucuses, the Operations Division of DCED asserts that it would issue an approval letter to the entity followed by a contract to be executed between DCED and the entity receiving funding. (5) When the terms of the contract were completed, the grantee entity was required to submit a “Closeout Report” that was reviewed by the Audit and Compliance Division of DCED. If the grant amount was $100,000 or more, DCED policy was that the grantee entity was required to hire an independent auditor to complete an audit report to be submitted with the Closeout Report. Respondent asserts that it was the responsibility of the Executive Branch, through the Governor’s Office of the Budget, to make the final determination as to funding of Legislative Initiative Grants. During Respondent’s tenure in the House, two of the entities in Respondent’s legislative district that received Legislative Initiative Grants were “Across Colors Cultural Committee” (“ACCC”) and “The Chester Fine Arts Center East” (“CFACE”). Members of Respondent’s immediate family are/were associated with these organizations. Respondent’s daughter and sister are officers of ACCC (president and treasurer respectively), and they served as officers of ACCC in 2009. Respondent’s spouse is CFACE Board President, and she served as CFACE Board President during the period from 2008-2010. ACCC annually stages a festival known as the “Across the Colors Cultural Festival” (“ACCC Festival”) held in the City of Chester. Respondent’s office has been a primary sponsor of the ACCC Festival since 1994. Kirkland, 13-006 Page 12 Respondent made recommendations to the House Democratic Caucus that ACCC receive Legislative Initiative Grants in 2009. Respondent’s recommendations facilitated the awarding of an $85,000 Legislative Initiative Grant to ACCC in 2009. Respondent’s daughter, Tyra Starr, received $2,000 from the 2009 Legislative Initiative Grant to ACCC, as payment for her and her band’s performance at the ACCC Festival. Tyra Starr asserts that the $2,000 payment to her and her band was below her market rate in 2009. At the time Respondent recommended the awarding of the 2009 Legislative Initiative Grant to ACCC, he was aware that his daughter would possibly receive payments emanating from those grant funds. CFACE is a non-profit corporation that was established by Respondent’s now deceased brother. Articles of Incorporation establishing CFACE were filed with the Corporation Bureau of the Pennsylvania Department of State on March 22, 1979. CFACE received a $100,000 Legislative Initiative Grant in 2008. In May 2010 Respondent agreed with/authorized a change to the fund distribution for the grant contract, which did not alter the amount of the grant awarded to CFACE. In 2008 CFACE submitted two additional Legislative Initiative Grant applications to the House Democratic Caucus through Respondent’s office. In 2009 and 2010, CFACE received Legislative Initiative Grants of $14,000 and $14,500 respectively. The parties have stipulated that all of the Legislative Initiative Grants identified herein were recommended for funding prior to November 30, 2009, at a time when the prevailing law in Pennsylvania was that a non-profit was not considered a “business with which \[one\] is associated” for purposes of the Ethics Act. See, Rendell v. Pa. State Ethics Commission, 961 A.2d 209 (Pa. Commw. Ct. 2008); In re Nom. Pet. Of Carroll, 586 Pa. 624, 896 A.2d 566 (2006). The Pennsylvania Supreme Court reversed that interpretation on November 30, 2009. Rendell v. Pa. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009). Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations as follows: 3. The Investigative Division will recommend the following in relation to the above allegations: a. That no violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a) occurred when legislative initiative grants for entities associated with Kirkland and/or members of Kirkland’s immediate family, were sponsored/recommended for funding through Kirkland’s legislative office, between December 19, 2007 and November 30, 2009, as the Commonwealth Court had issued an opinion in Rendell v. Pa. State Ethics Commission, 938 A.2d 554 (Pa. Commw. Ct. 2007), finding that not-for-profit businesses were not considered a “business with which \[one\] is associated” for purposes of the Ethics Act. Kirkland, 13-006 Page 13 b. That, as part of a negotiated settlement agreement, a single violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa. C.S. § 1103(a), occurred when a legislative initiative grant for entities associated with Kirkland and/or members of Kirkland’s immediate family, was recommended for funding through Kirkland’s legislative office and a member of his immediate family received payment from those grant funds, namely his daughter was paid $2,000.00 for services rendered to the Across Colors Cultural Committee. 4. Kirkland agrees to make payment in the amount of $2,000.00 in settlement of this matter payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. Kirkland agrees to not accept any reimbursement, compensation or other payment from the Pennsylvania House of Representatives representing a full or partial reimbursement of the amount paid in settlement of this matter. 6. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with Paragraph(s) four (4) and/or five (5) of this agreement or the Commission's order with respect to Paragraph(s) four (4) and/or five (5) of this agreement. Additionally nothing shall limit the Commission from cooperating or complying with any other authority who may so choose to review this matter further. Consent Agreement, at 2. We accept the first recommendation of the parties, and we hold that per the Consent Agreement of the parties, no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Legislative Initiative Grants for entities associated with Respondent and/or members of Respondent’s immediate family were sponsored/recommended for funding through Respondent’s legislative office between December 19, 2007, and November 30, 2009, as case law in Pennsylvania at that time found that a non-profit was not considered a “business with which \[one\] is associated” for purposes of the Ethics Act. See, Rendell v. Pa. State Ethics Commission, 961 A.2d 209 (Pa. Commw. Ct. 2008); In re Nom. Pet. Of Carroll, 586 Pa. 624, 896 A.2d 566 (2006). (As noted above, the Pennsylvania Supreme Court reversed that interpretation on November 30, 2009. Rendell v. Pa. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009).) Additionally, we accept the recommendation of the parties for a finding that, as part of a negotiated settlement agreement, a single violation of Section 1103(a) of the Ethics Act, 65 Pa. C.S. § 1103(a), occurred as to the 2009 Legislative Initiative Grant for ACCC from which Respondent’s daughter, Tyra Starr, received payment in the amount of $2,000.00 for services rendered to ACCC. Kirkland, 13-006 Page 14 Respondent used the authority of his public office when he made recommendations to the House Democratic Caucus that ACCC receive Legislative Initiative Grants in 2009. Respondent’s recommendations facilitated the awarding of an $85,000 Legislative Initiative Grant to ACCC in 2009. Respondent’s daughter, Tyra Starr, received $2,000 from the 2009 Legislative Initiative Grant to ACCC as payment for her and her band’s performance at the ACCC Festival. At the time Respondent recommended the awarding of the 2009 Legislative Initiative Grant to ACCC, he was aware that his daughter would possibly receive payments emanating from those grant funds. We hold that, as part of a negotiated settlement agreement, a single violation of Section 1103(a) of the Ethics Act, 65 Pa. C.S. § 1103(a), occurred when a Legislative Initiative Grant for an entity associated with Respondent and/or members of Respondent’s immediate family was recommended for funding through Respondent’s legislative office and a member of his immediate family received payment from those grant funds, namely, his daughter was paid $2,000.00 for services rendered to ACCC. As part of the Consent Agreement, Respondent has agreed to make payment in the amount of $2,000.00 payable to the Commonwealth of Pennsylvania and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Respondent has also agreed to not accept any reimbursement, compensation or other payment from the Pennsylvania House of Representatives representing a full or partial reimbursement of the amount paid in settlement of this matter. We determine that the Consent Agreement submitted by the parties sets forth a proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, per the Consent Agreement of the parties, Respondent Kirkland is directed to make payment in the amount of $2,000.00 payable to the Commonwealth of th Pennsylvania and forwarded to this Commission by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Per the Consent Agreement of the parties, Respondent Kirkland is directed to not accept any reimbursement, compensation or other payment from the Pennsylvania House of Representatives representing a full or partial reimbursement of the amount paid in settlement of this matter. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV.CONCLUSIONS OF LAW: 1. As a Member of the Pennsylvania House of Representatives since January 1993, Respondent Thaddeus Kirkland (“Kirkland”) has been a public officialsubject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. 2. Per the Consent Agreement of the parties, no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Legislative Initiative Grants for entities associated with Kirkland and/or members of Kirkland’s immediate family were sponsored/recommended for funding through Kirkland’s legislative office between December 19, 2007, and November 30, 2009, as case law in Pennsylvania at that time found that a non-profit was not considered a “business with which \[one\] is associated” for purposes of the Ethics Act. Kirkland, 13-006 Page 15 3. As part of a negotiated settlement agreement, a single violation of Section 1103(a) of the Ethics Act, 65 Pa. C.S. § 1103(a), occurred when a Legislative Initiative Grant for an entity associated with Kirkland and/or members of Kirkland’s immediate family was recommended for funding through Kirkland’s legislative office and a member of his immediate family received payment from those grant funds, namely, his daughter was paid $2,000.00 for services rendered to the Across Colors Cultural Committee. In Re: Representative Thaddeus Kirkland, : File Docket: 13-006 Respondent : Date Decided: 9/30/14 : Date Mailed: 10/20/14 ORDER NO. 1647 1. Per the Consent Agreement of the parties, no violation of Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), occurred when Legislative Initiative Grants for entities associated with Thaddeus Kirkland (“Kirkland”), Member of the Pennsylvania House of Representatives, and/or members of Kirkland’s immediate family were sponsored/recommended for funding through Kirkland’s legislative office between December 19, 2007, and November 30, 2009, as case law in Pennsylvania at that time found that a non-profit was not considered a “business with which \[one\] is associated” for purposes of the Ethics Act. 2. As part of a negotiated settlement agreement, a single violation of Section 1103(a) of the Ethics Act, 65 Pa. C.S. § 1103(a), occurred when a Legislative Initiative Grant for an entity associated with Kirkland and/or members of Kirkland’s immediate family was recommended for funding through Kirkland’s legislative office and a member of his immediate family received payment from those grant funds, namely, his daughter was paid $2,000.00 for services rendered to the Across Colors Cultural Committee. 3. Per the Consent Agreement of the parties, Kirkland is directed to make payment in the amount of $2,000.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission by no later than the th thirtieth (30) day after the mailing date of this Order. 4. Per the Consent Agreement of the parties, Kirkland is directed to not accept any reimbursement, compensation or other payment from the Pennsylvania House of Representatives representing a full or partial reimbursement of the amount paid in settlement of this matter. 5. Compliance with paragraphs 3 and 4 of this Order will result in the closing of this case with no further action by this Commission. a. Non-compliance will result in the institution of an order enforcement action. BY THE COMMISSION, ___________________________ John J. Bolger, Chair