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
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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.
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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.
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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.
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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
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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
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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.
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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.
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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,
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is o as o a e Ta--,C h air