HomeMy WebLinkAbout904 SonntagIn re: Robert Sonntag
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket: 88 -071 -C
Date Decided: 9/28/93
Date Mailed: 10/07/93
Before: James M. Howley, Chair
Daneen E. Reese, Vice Chair
Dennis C. Harrington
Austin M. Lee
Joseph W. Marshall, III
The State Ethics Commission received a complaint regarding a
possible violation of the State Ethics Act, No. 170 of 1978, P.L.
883. Written notice, of the specific allegation(s) was served at
the commencement of the investigation. A Findings Report was
issued and served, upon completion of the investigation, which
constituted the Complaint by the Investigation Division. An Answer
was filed and a hearing was waived. A Consent agreement was
submitted by the parties to the Commission for consideration which
was subsequently approved. This adjudication of the Commission is
hereby issued which sets forth the individual Allegations, Findings
of Fact, Discussion, Conclusions of Law and Order.
This adjudication is final and will be made available as a
public document fifteen days after issuance. However,
reconsideration may be requested which will defer public release of
this adjudication pending action on the request by the Commission.
A request for reconsideration, however, does not affect the
finality of this adjudication. A reconsideration request must be
received at this Commission within fifteen days of issuance and
must include a detailed explanation of the reasons as to why
reconsideration should be granted in conformity with 51 Pa. Code
§2.38.
The files in this case will remain confidential in accordance
with Section 8(a) of Act 170 of 1978 during the fifteen day period
and no one unless the right to challenge this Order is waived, may
violate confidentiality by releasing, discussing or circulating
this Order. However, confidentiality does not preclude discussing
this case with an attorney at law.
Any person who violates confidentiality of the Ethics Act is
guilty of a misdemeanor subject to a fine of not more than $1,000
or imprisonment for not more than one year, 65 P.S. 409(e).
Sonntag 88 -071 -C
Page 2
I. ALLEGATION
That Robert Sonntag, a Water Quality Specialist employed by
the Pennsylvania Department of Environmental Resources, violated
the following provisions of the State Ethics Act (Act 170 of 1978),
when he used his position with DER to cause an investigation
against an individual who was involved in a dispute with the owner
of a company in which he is a major shareholder; and when he failed
to report his ownership of stock in DMF Industries on Statements of
Financial Interests forms.
Section 3. Restricted Activities.
(a) No public official or public employee
shall use his public office or any
confidential information received through his
holding public office to obtain financial gain
other than compensation provided by law for
himself, a member of his immediate family, or
a business with which he is associated. 65
P.S. 5403(a).
Section 5. Statement of financial interests.
(b) The statement shall include the following
information for the prior calendar year with
regard to the person required to file the
statement and the members of his immediate
family:
(5) The name and address of any person who is
the direct or indirect source of income
totalling in the aggregate $500 or more.
However, this provision shall not be construed
to require the divulgence of confidential
information protected by statute or existing
professional codes of ethics. 65 P.S.
S405(b)(5).
(8) Any office, directorship or employment of
any nature whatsoever in any business entity.
65 P.S. 5405(8).
(9) Any financial interest in any legal
entity engaged in business for profit. 65
P.S. 5405(9).
II. FINDINGS:
1. Robert Sonntag hasmental employed
Resources as as Water Pennsylvania
Department of Envir on
Sonntag 88 -071 -C
Page 3
Specialist from 1973 to the present.
a. Sonntag had a break in service when he attended college
during 1974 -75.
b. Sonntag works under the supervision of the Williamsport,
PA, Regional Office.
2. As a Water Quality Specialist, Robert F. Sonntag's duties and
responsibilities include but are not limited to the following:
professional work in the field of Water Quality Management.
An employee in this class performs a variety of duties, within
an assigned geographical area of the Commonwealth, involving
the regulation of the facilities to ensure compliance with the
Commonwealth's Rules and Regulations, permits and laws
governing water quality management. Work requires the
application of these Rules and Regulations during the conduct
of inspections, investigations, enforcement and survey
activities. Work involves inspecting industrial waste
treatment facilities and discharges, sewage collection and
treatment facilities and discharges and investigations into
manure management problems. Work also involves investigating
and resolving complaints involving fish kills, contaminated
water supplies, industrial waste spills. Work involves water
quality network sample collections. Work includes initiating
enforcement action to bring facilities into compliance with
the Rules and Regulations, preparing violation letters,
negotiating settlements, negotiating penalties payable to the
Clean Water Fund, prosecuting cases on behalf of the
Commonwealth, and conducting surveys of facilities to
determine compliance with the Rules and Regulations. Work
involves providing advice to municipal officials and sewage
treatment operators on methods to solve operational problems,
industrial waste treatment operators on methods to solve
operational problems, and co- workers on unusual or difficult
problems. Work involves providing information to facility
operators, municipal officials, and the public on Departmental
programs, functions, rules, regulations, policies and
procedures. Work includes the operation, calibration and
routine preventative maintenance of a variety of test
equipment. Work is assigned in the form of scheduling and
completing the work. This also involves scheduling and
completing work to achieve minimum goals outlined in
agreements between the Department and the Federal E.P.A.
3. In his position, Robert Sonntag was responsible for performing
the above duties and responsibilities in relation to a bridge
aluminizing project in Lycoming County that was being
completed by DMF Industries Ltd.
a. The bridge spanned the Lycoming Creek.
Sonntag 88 -071 -C
Page 4
4. Records of the Pennsylvania Department of Environmental
Resources indicate that waste discharge inspection reports
(forms ERBWQ: 32 Rev 4 -77) were filed in relation to the
bridge painting project referenced above.
a. The reports were dated 6/16/86 and 10/2/86.
b. Both reports identified Donald M. Fell as the responsible
official of DMF Industries Ltd.
c. Both reports were signed by Robert F. Sonntag as the
assigned investigator.
5. While inspecting the bridge project, Sonntag met with Fell and
discussed a metalized paint technique utilized by DMF.
a. Sometime after completion of the bridge project, while
visiting Donald Fell, Sonntag observed DMF Industries
Ltd. making trailers and expressed, at that time, an
interest in possible investment.
6. Donald Fell advised Sonntag that the company had a minority
owned enterprise and status.
a. As such, Fell suggested that Sonntag's wife purchase the
stock.
b. Fell was desirous of maintaining minority status.
7. On December 23, 1986, Karen Sonntag purchased $25,000 worth of
DMF Industries LTD. stock.
a. Karen Sonntag is the spouse of Robert F. Sonntag.
b. The stock was purchased in part with funds from a joint
account held by Robert and Karen Sonntag.
c. 5,000 shares of stock were purchased.
d. Karen Sonntag had not been involved in the prior
discussions between Robert Sonntag and Donald Fell.
8. Donald M. Fell, President of DMF Industries, owns a building
at the Harbison - Walker Complex in Clearfield, PA.
a. Sonntag has no duties or responsibilities in the
geographical area of Clearfield, PA.
9. Mark Jovich owns Building 3 at the Harbison- Walker Complex.
Sonntag 88 -071 -C
Page 5
a. Fell and Jovich were involved in a dispute over the sale
of fans worth several thousands of dollars.
b. Fell was negotiating to sell 24 fans to the Glen Gary
Company.
c. Jovich offered more favorable terms on this type of fan
and he struck a deal with John Stratton of Glen Gary.
d. There was animosity between Fell and Jovich with regard
to this deal.
10. Sonntag obtained pamphlets with regard to asbestos removal and
mailed them to Fell.
11. During a visit by Sonntag to Fell, Sonntag became aware of a
potential asbestos problem in Fell's building.
12. In September, 1987, Sonntag supplied both written and verbal
information to Jack Archambault, an employee of DER, regarding
the potential that asbestos was being improperly removed from
Building 3.
a. Sonntag asked that his name not be used on the complaint
so that he could avoid controversy.
1.) It is not uncommon for a person supplying such
information to DER to request confidentiality.
b. Sonntag's complaint was filed with Jack Archambault.
c. Sonntag had never been inside of Jovich's building.
13. Supervisor Jack Archambault, DER Air Quality, advised that
Sonntag was specific in his complaint naming only Jovich and
Building 3 in the Harbison - Walker Complex.
a. Air Quality personnel inspected Building 3 and failed to
find an asbestos violation.
b. Air Quality personnel then recommended that the entire
complex be checked for asbestos.
14. On April 26, 1988, Sonntag received a three -day suspension
without pay from his Water Quality Specialist's position for
the following reasons.
a. His personal involvement with DMF Industries, a company
he regulated during the course of his employment.
b. Sonntag concealed his involvement when he lodged his
Sonntag 88 -071 -C
Page 6
This amendatory
violations committed
date of this act,
initiated for such
governed by the prior
personnel, concerning
complaint with DER Air Quality
Jovich's building.
c. Sonntag continued to conceal his
Industries when confronted by DER
and later by his work supervisors.
15. Sonntag performed two inspections at a bridge on Route 15 near
Williamsport which was receiving a metal coating from DMF.
a. This was the only situation where Sonntag regulated a DMF
project.
b. Sonntag ensured that tarps and booms were secured
that no paint chips fell into the water.
16. Sonntag did not list any ownership of DMF Industries stock
purchased with Financial rjoint Statement oof F Interests for calendar year 1986 dated
S
April 21, 1987. Refer to finding #7.
a. The non - filing by Robert Sonntag would be limited to
eight days in 1986.
17. Sonntag listed his DMF stock on his statement for calendar
year 1987 dated April 25, 1988 by attaching his 1988 Code of
Conduct Form as an addendum.
a. Sonntag was uncertain as to whether he was required to
list this DMF Industries stock, but did so to avoid the
possibility of a violation.
b. The DMF stock was not purchased in his name.
involvement with DMF
Air Quality personnel
act shall not apply to
prior to the effective
and causes of action
violations shall be
law, which is continued
and
III. DISCUSSION:
As a Water Quality Specialist in the Pennsylvania Department
of Environmental Resources, Robert Sonntag, hereinafter Sonntag is
a public employee as that term is defined in the Ethics Act, 65
P.S. S402; 51 Pa. Code §1.1. As such, his conduct is subject to
the provisions of the Ethics Act and the restrictions therein are
applicable to him.
Initially, it is noted that Section 9 of Act 9 of June 26,
1989, P.L. 26, provides, in part, as follows:
Sonntag 88 -071 -C
Page 7
Since
effective
provisions
Ethics Act
in effect for that purpose
not in force. For the
section, a violation was
the effective date of this
of the violation occurred
the occurrences in this
date of Act 9 (June 26
of Act 170 of 1978, P.L.
was violated.
as if this act were
purposes of this
committed prior to
act if any elements
prior thereto.
case transpired prior to the
1989), we must apply the
883, to determine whether the
Under Section 3(a), quoted above, this Commission has
determined that use of office by a public official to obtain a
financial gain for himself or a member of his immediate family or
a business with which he is associated which is not provided for in
law transgresses the above provision of law. Thus, use of office
by a public official to obtain a financial gain which is not
authorized as part of his compensation is prohibited by Section
3(a): Hoak /McCutcheon v. State Ethics Commission, 77 Pa. Commw
529, 466 A.2d 283 (1983); Yacobet v. State Ethics Commission, 109
Pa. Commw. 432 531 A.2d 536 (1987). Similarly, Section 3(a) of the
Ethics Act would prohibit a public official /employee from using
public office to advance his own financial interests; Koslow v
State Ethics Commission, 116 Pa. Commw. 19, 540 A.2d 1374 (1988),
allocatur denied, 520 Pa. 609, 553 A.2d 971 (1988).
Section 5(b)(5), (8), and (9) of Act 170 of 1978 is the
Financial Interests Statement (FIS) disclosure provision which
requires that a public official /employee list the name and address
of any direct or indirect source of income totalling in the
aggregate of $500.00 or more, any office or directorship or
employment in any business entity, and any financial interest in a
legal entity engaged in.business for profit.
The issue before us is whether Sonntag violated Section 3 (a)
of Act 170 of 1978 regarding the allegation that he used his
position as a Water Quality Specialist in DER to have an
investigation commenced against an individual who was involved in
a dispute with the owner of a company in which Sonntag was
associated: and second whether Sonntag violated Sections 5 (b)(5),
(8) or (9) of Act 170 of 1978 regarding his failure to report on
his FIS his stock ownership in that company, DMF Industries Ltd.
(D ')•
Sonntag has been employed by DER as a Water Quality Specialist
since 1973 working out of the Williamsport Regional office. In his
position, Sonntag applies the Environmental Law Rules and
Regulations as to inspections /investigations and the enforcement of
water quality management. The duties and responsibilities of
Sonntag are listed in detail in Fact Finding 2.
Sonntag 88 -071 -C
Page 8
In 1986, Sonntag was assigned to perform certain duties and
responsibilities as to a bridge aluminizing project which was being
done by DMF. Sonntag filed various reports concerning the bridge
project from June 16, 1986 to October 2, 1986. Sonntag insured
that tarps and booms where secured so that no paint chips would
fall from the bridge into the water. The reports identified Donald
M. Fell as the "responsible" official in DMF.
In the course of his inspection activities as to the bridge
project, Sonntag met Fell and discussed a metalized paint technique
utilized by DMF. Thereafter, when Sonntag observed DMF making
trailers, he expressed an interest in investing in the company.
After Fell advised Sonntag that the company was a minority owned
enterprise, Fell suggested that Sonntag's wife purchase the stock
so that the minority status of the firm could be maintained. On
December 23, 1986, Sonntag's wife Karen purchased $25,000 worth of
DMF stock. The funds for the purchase of the stock came in part
from a joint banking account in the names of Sonntag and his wife.
Approximately nine (9) months after the above transaction,
Sonntag supplied information to Jack Archambault, a DER employee,
regarding a potential asbestos problem in a building in the
Harbison - Walker complex which was owned by a Mark Jovich who was in
a dispute with Fell. The Jovich /Fell dispute concerned the sale of
several thousand dollars worth of fans which both Fell and Jovich
tried to sell to Glen Gary Company; Jovich made the sale based upon
his offer of more favorable terms.
After Sonntag purportedly became "aware" of a potential
asbestos problem in Jovich's building, even though he had never
been inside, he filed a specific complaint only identifying
Jovich's building in the Harbison- Walker complex relative to a
possible asbestos violation. Air quality personnel from DER did
inspect the building and found no asbestos violation.
On April 26, 1988, Sonntag received a three (3) day suspension
without pay from DER for the following three reasons: (1) his
involvement with DMF, a company he regulated during the course of
his employment; (2) his concealment of his involvement with
Fell /DMF when he lodged the complaint as to Jovich's building and
(3) his continued concealment of his involvement with the DMF even
after being confronted by DER personnel, and his supervisors.
As to the FIS matter, Sonntag did not list any ownership of
DMF stock for the calendar year eacr FIS by indirectly
such information on his 1987
Code of Conduct form which listed the item.
In applying the provisions of the Ethics Act to the facts of
record, we find no violation as to the first allegation under
Sonntag 88 -071 -C
Page 9
Section 3(a) of Act 170 of 1978. Although it is clear that Sonntag
was the party who filed the complaint against Jovich who was in a
dispute with Fell of DMF, there is no showing that Sonntag received
a financial gain as a result of such action. DMF is a business
with which Sonntag is associated. The term is defined as follows
under Act 170 of 1978:
Section 2. Definitions.
"Business with which he is associated." Any
business in which the person or a member of
the person's immediate family is a director,
officer, owner, employee or holder of stock.
Thus,' although Sonntag through his wife purchased $5,000
shares of DMF stock worth $25,000, the evidence does not establish
that DMF received a financial gain. Therefore, since there is no
showing that a financial gain resulted to Sonntag or to a business
with which he was associated, we find no violation of Section 3(a)
of Act 170 of 1978 regarding his action of causing an inspection of
a building owned by Jovich who was in a dispute with Fell of DMF.
Turning to the FIS allegation, we find a technical violation
of Section 5(b) 9 of Act 170 of 1978 when Sonntag failed to list on
his calendar year 1986 FIS his financial interest in DMF which is
a legal entity engaged in business for profit. We, however, find
no violation of either Section 5(b)(5) or (8) in that the record
does not establish that Sonntag received $500 or more in income
from DMF or that Sonntag held an office, directorship or employment
in DMF.
Sonntag is directed within thirty days of the date of issuance
of this order to file an amended FIS for the calendar year 1986
listing DMF under the category of financial interest in any legal
entity engaged in business for profit. Compliance with the
foregoing directive, will result in this case being closed with no
further action. Failure to comply will result in a directive of
this Commission to institute an order enforcement action against
Sonntag.
IV. CONCLUSIONS OF LAW:
1. Robert Sonntag as a Water Quality Specialist in the
Pennsylvania Department of Environmental Resources is a
public employee subject to the provision of Act 170 of
1978.
2. Sonntag did not violate Section 3(a) of Act 170 of 1978
when he caused an investigation against an individual who
was involved in a dispute with an owner of DMF Industries
Ltd. in which he is a major shareholder in that the
Sonntag 88 -071 -C
Page 10
evidence does not establish that the action of Sonntag
resulted in a financial gain to himself or DMF Industries
Ltd.
3. A technical violation of Section 5(b) 9 of Act 170 of
1978 occurred when Sonntag failed to list his financial
interest in DMF Industries Ltd., a legal entity engaged
in business for profit, on his 1986 calendar year
Statement of Financial Interests.
4. Sonntag did not violate Section 5(b)(5) or (8) of Act 170 of
1978 ustries Ltd. . and he did not hold an $ DMF
Ind office, e, directorship or
employment in DMF.
In re: Robert Sonntag s File Docket: 88 -071 -C
Date Decided: 9/28/93
Date Mailed: 10/07/93
ORDER NO. 904
1. Robert Sonntag, as a Water Quality Specialist of the
Department of Environmental Resources, did not violate
Section 3(a) of Act 170 of 1978 when he caused an
investigation against an individual who was involved in
a dispute with an owner of DMF Industries Ltd. in which
he is a major shareholder in that the evidence does not
establish that the action of Sonntag resulted in a
financial gain to himself or to DMF Industries, LTd.
2. A technical violation of Section 5(b) 9 of Act 170 of
1978 occurred when Sonntag failed to list his financial
interest in DMF Industries Ltd., a legal entity engaged
in business for profit, on his 1986 calendar year
Statement of Financial Interests.
3. Sonntag did not violate Section 5(b)(5) or (8) of Act 170
of 1978 in that he did not receive $500 or more from DMF
Industries Ltd. and he did not hold an office,
directorship or employment in DMF.
4. Sonntag is directed within thirty (30) days of date of
issuance of this Order to file an amended 1986 calendar
year Statement of Financial Interests listing his
financial interest in DMF Industries Ltd., as a legally
entity engaged in business for profit.
5. Failure to comply with the provision of paragraph number
four will result in a directive of this Commission to
institute an order enforcement action.
6. Compliance with paragraph number four will cause this
case to be closed with no further action.
BY THE C ISSION,
Akw .03Y
JAMES M. HOWLEY, CHAIR