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HomeMy WebLinkAbout1702 Henkel1.:03 ., STATE ETHICS COMMISSION 309 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: Robert Henkel, File Docket: Respondent X -ref: Date Decided: Date Mailed: 15 -040 Order No. 1702 10/19/16 10/31/16 Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Melanie DePalma 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 se q., 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. 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 Robert Henkel, in his official capacity as a Member and/or President of Braddock Hills Borough Council, Allegheny County, violated Section 1103(a) of the State Ethics Act when he utilized the authority of his public position for the private pecuniary benefit of a member of his immediate family and/or a business with which a member of his immediate family is associated, when he participated in actions of Borough Council to vote and/or otherwise authorize the payment of invoices due to Ron Henkel and/or Ron's Auto, a business with which a member of his immediate family is associated, thereby resulting in a private pecuniary benefit to same. II. FINDINGS: 1. Robert Henkel served as a Member of Braddock Hills Borough Council, Allegheny County, from January 3, 1984, to the present. a. Robert Henkel served as Chairman of Council from 1993 through 2015. 2. Braddock Hills Borough is governed by a seven - Member Council. a. Council holds one regularly scheduled meeting on the third Tuesday of the month. b. Special meetings are held as necessary. 3. Voting at Braddock Hills Borough meetings occurs via roll call, after a motion is made and properly seconded. P.O. BOX 11470, HARRISBURG, PA 17108 -1470 - 7 17-783-16 10 • 1 -800- 932 -0936 • www.ethics.state.pa.us Henkel, 15 -040 aT age a. Abstentions and/or dissenting votes are specifically documented in the meeting minutes. 1. Minutes of the prior month's meeting are approved for accuracy at the subsequent meeting of Council. 4. Council undertakes a separate vote to approve the bill list presented at legislative meetings of Council. a. The bill list documents the following information: 1. Check dates 2. Check numbers; 3. The payee of each check; 4. A description of the service(s) to be paid by each check; and 5. The amount of each check. b. The bill list details all bills received by the Borough since the last legislative meeting. 5. Signature authority over the Borough financial accounts is maintained by three (3) Council Members and the Borough Secretary/Treasurer. a. Borough issued checks require the live signature of at least two (2) of any of the four (4) authorized signatories. b. Robert Henkel maintained signature authority over the Borough financial accounts during the time period of 2010 through 2015. C. Signature stamps were not utilized by the Borough during the time period of 2010 through 2015. 6. The Borough Chief of Police maintains oversight responsibility for the day -to -day operations of the Borough Police Department, which includes ensuring that the police vehicles are operational. a. The Borough Police Department is under the immediate supervision of the Borough Mayor. 1. The Borough Chief of Police is an employee of the Borough of Braddock Hills. b. The Chief of Police routinely discusses day -today operations with the Borough Mayor and /or the Borough Chairman or Vice Chairman. 7. The Chief of Police has the autonomy to select where the police vehicles are maintained, without consulting the Mayor, the Borough Chairman, and /or Vice Chairman, if the repair is estimated to be less than $1,000.00. a. If repairs are expected to exceed $1,000.00, prior to any work being completed, the repair is discussed among the Chief of Police, the Mayor, and/or Council President or Vice President. Henkel, 15 -040 a�3 8. Dean Helinsk! has served as the Borough Chief of Police since 2009. a. During the time period of 2010 through 2015, Helinski rarely discussed police vehicle repairs with the Borough Mayor, John Brown. Brown delegated that responsibility to Helinski. b. Helinski would primarily discuss police vehicle repairs with Councilman Charles Arthrell. Since being appointed Chief of Police in 2009, Helinski's main contact with Council has been Arthrell. 9. Helinksi and/or Arthrell have selected the following businesses to repair /service police vehicles since 2010: a. Ron's Auto Repair; b. Chris Glance Automotive; C. Mart 's Muffler & Weld Shop, LLC; d. Day Ford; e. Flynn's Tire; f. Kasardo & Sons Garage; g AZ Transmission & Complete Auto Repair; h, S &D Calibration Service; i. Day Chevrolet Inc.; JJ Pemar Auto Repair; k. Brix Auto Center; !. Victory Lane Auto Service; and M. Kenny Ross. 10. Ron's Auto Repair is an automotive repair /service station based within Braddock Hills Borough, located at 990 Wilkins Avenue, Pittsburgh, PA 15221. a. Ron's Auto Repair has been in operation since 1974. b. Ron's Auto Repair is a sole proprietorship. Ron Henkel has been the sole owner /operator of Ron's Auto Repair since 1974. C. Ron Henkel is Robert Henkel's brother. d. Ron's Auto Repair specializes in auto body repairs, mechanical repairs to automobiles, and the towing of automobiles. e. Robert Henkel has no ownership in Ron's Auto Repair. 11. Ron's Auto Repair has maintained a business relationship with Braddock Hills Borough since at least 1977 through March 2015. a. Ron's Auto Repair provided auto body repairs, inspectionslemission tests, and mechanical repairs to the Borough police vehicles during the time period of 1977 through March 2015. b. Ron's Auto Repair was utilized by the Borough for approximately seven (7) years prior to Robert Henkel becoming a Member of Borough Council in 1984. Henkel, 15 -040 age 4 12. Ron's Auto Repair was selected by Helinksi and /orArthrell for primarily the following reasons: a. The business is located in the Borough. b. A long - standing business relationship has existed between Ron's Auto Repair and the Borough. The relationship existed prior to Henkel taking office as a Member of Council. C. The cost of services was believed to be reasonable. d_ The work performed by Ron's Auto Repair met expectations. 13. The following chart] outlines payments made by the Borough to Ron's Auto Repair between 2012 and 2015 in relation to payments to all other vendors the Borough utilized for vehicle maintenance and/or repairs: Year Payments to Other Payments to Ron's Percentage of all Auto Repair Auto Repair Repairs Paid to Businesses Ron's Auto Repair 2 12 6672.919 2 362.13 14.2% 2013 6 580.39 112,891.93 0.00 0 0 20 4 4 696.36 36.4 0 2015 $41b/2.12 $639.89 1 13.9 o 14. From September 2010 through March 2015, Ron's Auto Repair submitted eighty - seven (87) invoices to the Borough seeking payment totaling $14,269.05 for automotive repair services rendered to the Borough. a. The eighty -seven (87) invoices detail Ron's Auto Repair providing auto body repairs, inspections /emission tests, and mechanical repairs to the Borough police vehicles from September 2010 through March 2015. b. Ron's Auto Repair provided various vehicle maintenance services for the Borough both prior to, and at times while, Robert Henkel served as a Borough Council Member. C. Of the eighty -seven (87) invoices between 2010 and 2015, three (3) exceed $500.00. 15. The decision to utilize Ron's Auto Repair to provide automotive repair /maintenance services for the Borough was not discussed and /or voted on by Council as a whole. a. The decision to utilize Ron's Auto Repair was made by Helinksi and /or Arthrell. b. Council as a whole approved the utilization of Ron's Auto Repair after the fact, when the bill lists identifying payment to Ron's Auto Repair were voted on for approval. C. Robert Henkel did not participate in the selection of Ron's Auto Repair. 16. During the time period of September 2010 to the present, eighteen (18) Borough checks totaling 8,477.75 were issued to Ron's Auto Repair in remittance of the eighty -seven (87) invoices issued. Henkel, 15 -040 age a. Two (2) invoices could not be located by either the Borough or Ron's Auto Repair. 1. Although the invoice(s) could not be located, there is no indication, nor accusation of, fraud, deception or other wrongful billing. b. The eighteen (18) Borough checks issued total $4,208.70 more than the invoices issued by Ron's Auto Repair due to the following reasons: 1. Ron's Auto Repair invoice dated October 20, 2010, in the amount of $166.89 was paid twice via Borough check number 6335 dated January 20, 2011. 2. No invoice was on file with Ron's Auto Repair or the Borough regarding the $1,268.43 payment made by the Borough to Ron's Auto Repair dated March 25, 2011, via Borough check number 6428. 3. No invoice was on file with Ron's Auto Repair, or the Borough, regarding the $2,773.36 payment made by the Borough to Ron's Auto Repair dated February 24, 2012, via Borough check number 6929. 4. Borough check number 8721 was $0.02 more than the total of the invoices due. 17. Between 2011 and March 18, 2015, Robert Henkel voted to approve issuing eight (8) of the eighteen (18) Borough checks remitted to Ron's Auto Repair, totaling $$,881.00. a. Between 2011 and March 18, 2015, Henkel voted to approve nine (9) bill lists, documenting a total of $10,454.79, paid to Ron's Auto Repair. 1. Borough check number 7427, in the amount of $1,573.79, was approved twice by Council. 2. Check number 7427 was initially approved at the December 20, 2012, meeting and again at the January 17, 2013, meeting. aa. It is unknown why check number 7427 was listed twice for approval. bb. [Payments] to Ron's Auto Repair approved by Henkel totaled $8,881.00 ($10,454.79 - $1,573.79 [approved twice]= $8,881.00). b. Henkel was absent from two (2) meetings, when $1,329.11 was approved to be paid to Ron's Auto Repair. C. Henkel abstained from seven (7) votes to approve bill lists which authorized $7,534.25 to be paid to Ron's Auto Repair. d. Henkel executed all eighteen (18) Borough checks issued to Ron's Auto Repair between 2011 and March 18, 2015 1. Henkel executed the checks only after Council voted to approve payment. Henkel, 15 -040 Page 18. All of the eighteen (18) Borough checks issued to Ron's Auto Repair during the time period of 2011 through 2015 (totaling $18,477.75) were deposited into the PNC Bank account [account number redacted] held by Ron's Auto Repair. 19. Robert Henkel, in his official capacity as a Member of Braddock Hills Borough Council, Allegheny County, utilized the authority of his public position when he participated in actions of Borough Council to vote and /or otherwise authorize the Eof invoices due to Ron's Auto Repair, a business with which Henkel's brother, Ron Henkel, is associated. a. Henkel made a good faith effort to abstain from votes seeking bill lists approval listing Ron's Auto Repair; nonetheless, on occasions, Henkel did vote for en masse bill approval. Although Henkel served as a Borough signatory on checks issued to Ron's Auto Repair, he did so only after the Borough approved same for issuance. Ill. DISCUSSION: As a Member of Council for Braddock Hills Borough ( "Borough "), Allegheny County, from January 3, 1 984, to the present, Respondent Robert Henkel, hereinafter also referred to as "Respondent," "Respondent Henkel," and "Henkel," has been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C. . § 1101 et se q. The allegations are that Respondent Henkel violated Section 1103(a) of the Ethics Act when he utilized the authority of his public position for the private pecuniary benefit of a member of his immediate family and/or a business with which a member of his immediate family is associated, when he participated in actions of Borough Council to vote and/or otherwise authorize the payment of invoices due to Ron Henkel and/or Ron's Auto, a business with which a member of his immediate family is associated, thereby resulting in a private pecuniary benefit to same. Pursuant to Section 1103(a) of the Ethics Act, a public officiallpublic 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 Henke[, 15 -040 Page 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 officelemployment or confidential information received by holding such a public position for the private ecuniary 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. Per the Pennsylvania Supreme Court's decision in Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate 11 03(a) o the Ethics Act, a public officiallpublic employee "must be consciously aware of a private pecuniary benefit for himself, his family, or his business, and then must take action in the form of one or more specific steps to attain that benefit." Id., 610 Pa. at 528, 22 A.3d at 231. In the absence of such "conscious awareness," a violation of Section 1103(a) of the Ethics Act may not be found. Id. 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 Henkel has served as a Member of Borough Council from January 3, 1984, to the present. Respondent served as Chairman of Borough Council from 1993 through 2015. Borough Council consists of seven Members. Borough Council approves the payment of bills by votes to approve bill lists. Borough issued checks require the live signature of at least two of any OT four authorized signatories. Respondent maintained signature authority over the Borough financial accounts during the time period of 2010 through 2015. Since 1974 Respondent's brother, Ron Henkel, has been the owner and operator of a sole proprietorship named " Ron's Auto Repair." Respondent has no ownership interest in Ron s Auto Repair. Ron's Auto Repair has maintained a business relationship with the Borough since at least 1977 through March 2015. Ron's Auto Repair provided auto body repairs, inspectionslemission tests, and mechanical repairs to the Borough police vehicles during the time period of 1977 through March 2015. The chart at Fact Finding 13 outlines payments made b the Borough to Ron's Auto Repair between 2012 and 2015 in relation to payments to all other vendors used by the Borough for vehicle maintenance and/or repairs. Ron's Auto Repair was used by the Borough fora proximately seven years prior to Respondent becoming a Member of Borough Council in 1984. Ron's Auto Repair was used byy the Borough primarily because of the location of the business in the Borough, the long - s #anding business relationship between Ron's Auto Repair and the Borough, the belief that the cost of services was reasonable, and the fact that the work performed by Ron's Auto Repair met expectations. Respondent did not participate in the selection of Ron's Auto Repair to provide automotive repairlmaintenance services for the Borough. The decision to utilize Ron's Auto Repair to provide automotive repair /maintenance services for the Borough was made by other Borough officials and was not discussed and /or voted on by Council as a whole. However, Council as a whole approved the utilization of Ron's Auto Repair after the fact, when bill lists identifying payments to Ron's Auto Repair were voted on for approval. Henkel, 15 -040 age From September 2010 through March 2015, Ron's Auto Repair submitted 87 invoices to the Borough seeking payment totaling $14,269.05 for automotive repair services rendered to the Borough. Between 2011 and March 18, 2015, Respondent voted to approve issuing eight of the eighteen (18) Borough checks remitted to Ron's Auto Repair. The aforesaid eight checks Respondent voted to approve totaled $8,881.00. Respondent was absent from two meetings, when $1,329.11 was approved to be paid to Ron s Auto Repair. Respondent abstained from seven votes to approve bill lists which authorized payments to Ron's Auto Repair. Respondent executed all 18 Borough checks issued to Ron's Auto Repair between 2011 and March 18, 2015. Respondent executed such checks only after Council had voted to approve payment. The parties have stipulated that Respondent, in his official capacity as a Member of Borough Council, utilized the authority of his public position when he participated in actions of Borough Council to vote and/or otherwise authorize the payment of invoices due to Ron's Auto Repair, a business with which Respondent's brother, Ron Henkel, is associated. The parties have further stipulated that Respondent made a good faith effort to abstain from votes approving bill lists that included payments to Ron s Auto Repair; nonetheless, on occasions, Respondent did vote for en masse bill approval. Respondent served as a Borough signatory on checks issued to Ron's Auto Repair only after the Borough had approved same for issuance. 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: That no violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a) occurred when Robert Henkel participated in actions of Borough Council to vote and /or otherwise authorize the payment of invoices due to Ron Henkel and /or Ron's Auto [Repair J, a business with which a member of his immediate family is associated, in that Henkel made a good faith effort to abstain from votes seeking bill lists approval listing Ron's Auto Repair. On the few occasions Henkel did vote for en masse bill list approval, Henkel was not "consciously aware" that his actions would result in a pprivate pecuniary benefit for Ron Henkel / Ron's Auto. See Kistler v. State Ethics Commission, 610 Pa. 516, 528 Pa. 20 1). Furthermore, although Henkel served as a Borough signatory on checks issued to Ron's Auto Repair, he did so only after the Borough had approved same for issuance. Henkel, 15 -040 a9 4. 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 this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. Consent A reement, at 1 -2. In considering the Consent Agreement, the parties have recommended we find that no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Respondent participated in actions of Borough Council to vote and/or otherwise authorize the payment of invoices due to Ron Henkel and/or Ron's Auto Repair, a business with which a member of Respondent's immediate family is associated, for the stated reasons that: (1) Respondent made a "good faith effort to abstain" from votes seeking approval of bill lists listing Ron's Auto Repair; (2) on the few occasions Respondent did vote for en masse bill list approval, he was not "consciously aware" that his actions would result in a private pecuniary benefit for Ron Henkel / Ron's Auto Repair (citing Kistler, supra); and (3) although Respondent served as a Borough signatory on checks issued to Ron's Auto Repair, he did so only after the Borough had approved same for issuance. Although this Commission has not recognized a "good faith effort to abstain from voting" as a defense to an alleged violation of Section 1103(a) of the Ethics Act - -and does do so in this case - -we do recognize the prosecutorial discretion of the Investigative Division. With the parties' stipulation that Respondent was not " consciously aware" his H votes to approve bill lists would result in a private pecuniary benefit for Ron enkel / Ron's Auto Repair, the elements of a violation of Section 1103(a) would not be established under the Kistler standard as to Respondent's aforesaid votes. Additionally, Respondent's actions in signing Borough checks issued to Ron's Auto Repair occurred only after such checks had been approved without the conscious awareness of Res ondent. Without adopting any particular reasoning of the parties, we accept the parties' recommendation and hold that as part of a negotiated settlement agreement, no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to the allegation that Respondent Henkel violated Section 1103(a) of the Ethics Act when he participated in actions of Borough Council to vote and/or otherwise authorize the payment of invoices due to his brother, on Henkel, and/or Ron's Auto Repair, a business with which Ron Henkel is associated. Based upon the above, no further action is required in this case, and this case is closed. IV. CONCLUSIONS OF LAW: 1. As a Member of Council for Braddock Hills Borough ( °Borough "), Allegheny County, from January 3, 1984, to the present, Robert Henkel ( "Henkel ) has been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. 2. As part of a negotiated settlement agreement, no violation of Section 1103(x) ofthe Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to the allegation that Henkel violated Section 1103(a) of the Ethics Act when he participated in actions of Borough Council to vote and /or otherwise authorize the payment of invoices due to his brother, Ron Henkel, and /or Ron's Auto Repair, a business with which Ron Henkel is associated. In Re: Robert Henkel, File Docket: 15 -040 Respondent Date Decided: 10/19/16 Date Mailed: 10/31/16 ORDER NO. 1702 As part of a negotiated settlement agreement, no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to the allegation that Robert HHenkel violated Section 1103(a) of the Ethics Act when he, in his capacity as a Member of Borough Council for Braddock Hills Borough ( "Borough "), Allegheny County, participated in actions of Borough Council to vote and/or otherwise authorize the payment of invoices due to his brother, Ron Henkel, and/or Ron's Auto Repair, a business with which Ron Henkel is associated. BY THE COMMISSION, E is o as o a e Ta--,C h air