HomeMy WebLinkAbout877 KlineIn Re: Carl S. Kline
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG PENNSYLVANIA 17120
: File Docket: 92- 039 -C2
. Date Decided: February 16, 1993
: Date Mailed: February 19 , 1993
Before: James M. Howley, Chair
Daneen E. Reese, Vice Chair
Dennis C. Harrington
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
Joseph W. Marshall, III
The State Ethics Commission received a complaint regarding a
possible violation of the State Ethics Act, Act 9 of 1989, 65 P.S.
§401 et. seq. 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 Order 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
S2.38.
The files in this case will remain confidential in accordance
with Act 9 of 1989, 65 P.S. §408(h) 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. 5409(e).
Kline, 92- 039 -C2
Page 2
I. ALLEGATION:
II. FINDINGS:
That Carl S. Kline, a former Purchasing Agent III for the
Department of Public Welfare, violated the following provisions of
the State Ethics Act (Act 9 of 1989), when he represented a private
business, Colt Plumbing Company, before his former governmental
body, Wernersville State Hospital, within one year of leaving state
service:
Section 3. Restricted activities
(g) No former public official or public
employee shall represent a person, with promised or
actual compensation, on any matter before the
governmental body with which he has been associated
for one year after he leaves that body. 65 P.S.
S403(g).
1. Carl Kline served as a Purchasing Agent III with the
Pennsylvania Department of Public Welfare at Wernersville
State Hospital from 1981 to December 20, 1991.
a. Kline was employed as a State employee for thirty -three
and one half years prior to his retirement in December,
1991.
2. Kline's duties and responsibilities as a Purchasing Agent III
for the Wernersville State Hospital included the following:
This', position is responsible for the operation of the
Purchasing and Warehousing Departments at WSH, a
psychiatric hospital with a separate Long Term Care Unit,
with a minimum of 520 patients and 660 employees.
b. Supervises the purchase of supplies and equipment for the
hospital by carrying out procurement policies and
procedures established by DGS and DPW in order to meet
the requirements of the hospital in a timely, efficient,
and effective manner.
(1) Supplies were purchased after receiving approval
signatures from the Assistant Superintendent of
Administration.
c. Manages the operation of the Storeroom by regular review
and consultation with the Storekeeper II in order to
insure efficiency.
d. Keeps abreast of need for operational and capital items
Kline, 92- 039 -C2
Page 3
e. Furnishes technical assistance to department heads by
maintaining files of catalogs and correspondence with
vendors as to prices, specifications and budgetary
concerns in order that effective use will be made of
available resources.
f. •Reviews all APR's, prepares /revises specifications as
necessary and follows mandated procedures to and
including preparation and issuance of the proper type of
Purchase Order, Service Purchase Contract or Blue Back
Contract in order that all orders and contracts are in
the proper format and result in the procurement of the
desired goods or services.
g-
by conferring with department heads and Asst.
Supt. /Administration as to priorities, specifications and
budgetary concerns in order that effective use will be
made of available resources.
(1)
Services were procured after receiving the
signature of approval of the Assistant
Superintendent of Administration.
Administers the hospital's property control program by
developing policies and procedures for tagging fixed
assets, maintaining "locator" files and controlling the
movement of equipment within the hospital in order to
meet DPW requirements.
h. Administers the surplus property program by obtaining
available surplus equipment and supplies needed by the
hospital and disposing of materials surplus to the
hospital's needs in order to participate fully in the DPW
and DGS surplus programs.
3. Kline's responsibilities with
contracts were to ensure that
percentage of discount, delivery
documents were correct.
regard to vendors on state
the price, selected vendor,
date and format of purchasing
4. One of the vendors Kline dealt with in his capacity as
Purchasing Agent III was Colt Plumbing company, Inc.
a. Colt Plumbing, Inc. is a firm which specializes in
selling plumbing supplies and related items.
°b. Colt Plumbing is under state contract to sell plumbing
supplies to the Commonwealth under contract #4510-01.
1. The contract covered the period August 1, 1991,
through July 31, 1992.
Kline, 92- 039 -C2
Page 4
5. While serving as a Purchasing Agent III, Kline had
conversations with an official from Colt Plumbing Co. with
regard to Kline joining this firm upon retirement from State
employment.
a. At that time Colt Plumbing Company was doing business
with Wernersville State Hospital.
b. Part of Kline's official duties required him to review
Colt's invoices, etc.
c. Kline's conversations with Colt Plumbing concerning
employment occurred after Kline had announced his
retirement from state employment.
d. After accepting the offer to work for Colt Plumbing,
Kline notified Daniel Brennan, Assistant Superintendent
for Administration and inquired if it would be a conflict
for him to continue to review or otherwise be involved
with any purchasing activities between Colt Plumbing and
Wernersville State Hospital.
(1) Kline was advised to continue his involvement with
purchases since there would be reviews and
approvals by the Assistant Superintendent of
Administration and the Financial Manager of the
hospital.
6. Kline accepted an employment offer from Colt and began working
as a District Sales Manager on January 1, 1992.
a. Kline's assigned area included the Wernersville State
Hospital as a customer.
7. Colt salesman, including Kline, are paid a commission of 20%
against a $1,000.00 monthly draw.
a. A commission can never be more than 20 %.
b. A commission can be less if a special rate is given to a
preferred customer.
8. During January, 1992, through June, 1992, Kline represented
Colt as a salesman at Wernersville State Hospital.
a. Kline periodically made business calls in behalf of Colt.
b. Kline's business calls consisted primarily of delivering
catalogs to the hospital. He did not write orders or
assist in writing any purchase documents.
Kline, 92- 039 -C2
Page 5
c. Personal visits with former co- workers were included in
some of Kline's calls at Wernersville State Hospital.
9. Kline received commissions on the following sales to
Wernersville State Hospital as a Colt employee during January,
1992, through June, 1992.
Invoice Date Amount Commission
00073494 01/22/92 $ 412.72 $ 82.54
0073492 01/22/92 $ 655.67 $ 131.13
0075614 02/19/92 $ 110.91 $ 11.09
00077125 03/10/92 $ 413.63 $ 82.73
00078172 03/24/92 $ 147.17 $ 29.43
00080922 04/30/92 $ 254.47 $ 50.89
00081310 05/06/92 $ 17.28 $ 3.46
00081137 05/04/92 $ 18.24 $ 3.65
00083569 06/08/92 $ 767.84 $ 153.57
00083665 06/09/92 $ 494.74 $ 98.95
00083917 06/12/92 $ 510.92 $ 102.18
Total Sales $ 3.803.59
Total Commissions $ 749.62
a. Sales by Colt Plumbing to Wernersville from January,
1992, through June, 1992, were lower in volume than those
historically made by the hospital from Colt Plumbing.
10. Kline declined to accept any commissions from the sale of Colt
supplies to Wernersville State Hospital after June 30, 1992.
a. Kline admitted that this occurred after he became aware
that a State Ethics Commission investigator was making
inquiries at Wernersville State Hospital.
b. Kline was unaware of rules prohibiting representation by
a former public employee. on any matter before the
governmental body .for a period of one year.
11. Kline asserts that he would not have represented Colt at
Wernersville State Hospital during the year after his
retirement, if he had been apprised of the on his
activities at the time of his retirement.
a. Kline was not given an exit interview at the time of his
retirement and believes that was the proper time to
advise him of any limitations as a former employee.
III. DISCUSSION:
As a former Purchasing Agent III for the Department of Public
Welfare (DPW), Carl S. Kline, hereinafter Kline, was a public
Kline, 92- 039 -C2
Page 6
employee as that term is defined under Act 9 of 1989. 65 P.S.
S402. As such, his conduct is subject to the provisions of the
Ethics Law and the restrictions therein are applicable to him.
Initially, it is noted that Section 9 of Act 9 of June 26,
1989 provides, in part, as follows:
"This amendatory act shall not apply to
violations committed prior to the effective
date of this act, and causes of action
initiated for such violations shall be
governed by the prior law, which is continued
in effect for that purpose as if this act were
not in force. For the purposes of this
section, a violation was committed prior to
the effective date of this act if any elements
of the violation occurred prior thereto."
Since the occurrences in this case transpired after the
effective date of Act 9 (June 26, 1989), we must apply the
provisions of Act 9 to determine whether the Ethics Act was
violated.
Under Section 3 (g) . of Act 9 _of 1989 quoted above, a former
public official /employee is prohibited from representing a person
for compensation on any matter before the governmental body with
which he was associated for a period of one year after he leaves
that body. The statutory definitions of "governmental body"
"person ", and "represent" are relevant to an application of Section
3 (g).
Section 2. Definitions
"Governmental body." Any department,
authority, commission, committee, council,
board, bureau, division, service, office,
officer, administration, legislative body, or
other establishment in the Executive,
Legislative or Judicial Branch of a state, a
nation or a political subdivision thereof or
any agency performing a governmental function.
"Person." A business, governmental body,
individual, corporation, union, association,
firm, partnership, committee, club or other
organization or group of persons.
"Represent." To act on behalf of any
other person in any activity which includes,
but is not limited to, the followings
personal appearances, negotiations, lobbying
Kline, 92- 039 -C2
Page 7
65 P.S. §402.
and submitting bid or contract proposals which
are signed by or contain the name of a former
public official or public employee.
The allegation before us is whether Kline, as a purchasing
agent, violated Section 3(g) regarding the representation of his
new employer, Colt Plumbing Company, within one year of termination
of service before his former governmental body, Wernersville State
Hospital of DPW.
Factually, Kline was employed as a Purchasing Agent III in DPW
at the Wernersville State Hospital from 1981 through December 20,
1991. Kline's duties as a Purchasing Agent III consisted in part
of supervising the purchase of supplies and equipment for the
Hospital, managing the operation of the storeroom, keeping current
as to operational and capital items, supplying vendor catalogs to
various department heads, reviewing all specifications and
purchasing procedures and administering the Hospital property
control and surplus property programs. Kline also had the
responsibility of ensuring that the price discount delivery
documentation from vendors was within contract parameters.
Following termination of service, Kline became employed with
Colt Plumbing, Inc., a firm which specializes in selling plumbing
supplies and related items. Colt Plumbing was under a state
contract to sell supplies to the Commonwealth. Kline did review
Colt invoices as part of his official duties. While employed as a
Purchasing Agent III, Kline had conversations with Colt Plumbing
regarding employment but only after Kline announced his retirement.
After Kline accepted employment with Colt Plumbing, he
notified the Assistant Superintendent for Administration in DPW as
to his employment with Colt Plumbing and the potential of a
conflict in light of the purchasing activities between Colt
Plumbing and Wernersville State Hospital. Kline was advised that
he could continue his involvement since there were safeguards in
place consisting of the reviews and approvals by the Assistant
Superintendent for Administration and Financial Manager of the
Hospital.
After Kline began working as a District Sales Manager for Colt
Plumbing on January 1, 1992, he was assigned an area which included
Wernersville State Hospital as a Colt Plumbing customer. All Colt
salesman including Kline were paid on a 20% commission paid against
a $1000 monthly draw. Kline did represent Colt Plumbing as a
salesman at Wernersville State Hospital which entailed making
business calls and delivering catalogs; Kline did not write or even
assist in writing any orders. The sales made by Colt Plumbing to
Wernersville between the period of January through June, 1992 were
Kline, 92- 039 -C2
Page 8
lower in volume than historically made by the company to the
Hospital. After June, 1992, Kline declined to accept any further
commissions as to sales from Colt Plumbing supplies to Wernersville
State Hospital which coincided with a notice Kline received as to
the Commission investigation against him. Lastly, the record
reflects that Kline was unaware of the restriction of Section 3(g)
of Act 9 of 1989 and would not have represented Colt Plumbing at
Wernersville State Hospital if he had been aware of such
restrictions.
In applying the provisions of Section 3(g) of Act 9 of 1989
quoted above to the above facts of record, we find a violation in
that Kline as a former public employee did represent a person
consisting of his new employer, Colt Plumbing, for compensation
consisting of commission on sales within a one year period
following termination of his service before his governmental body,
DPW, which includes the Wernersville State Hospital. We do note
that the activities of Kline in making business calls on behalf of
Colt Plumbing before Wernersville State Hospital, delivering
catalogs, and receiving and accepting commissions on the sales to
Wernersville State Hospital is within the ambit of the term
representation. Our decision in this case in accord with Roller,
Order No. 831, wherein we found inter alia that Roller as a former
Regional Director of the Department of Environmental Resources
(DER) violated Section 3(g) of Act 9 of 1989 when he represented a
firm within one year after termination of service before DER
regarding the resolution of noncompliance citation.
The power of this Commission to impose restitution in cases
has been upheld by Commonwealth Court in Yacobet v. State Ethics
Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). In this
case, through the exercise of our discretion, we believe
restitution in the amount of $201.13, which Kline received after
the Commission's investigative activity on June 8, 1992, is
appropriate. Since there is no evidence of record to indicate that
Kline had any intent to violate the Ethics Law, we will take no
further action in this matter provided that Kline does remit a
check or payment in the amount of $201.13 within thirty (30) days
of issuance of this Order to this Commission payable to the Order
of DPW. Failure to comply with the foregoing directive will result
in the institution of an order enforcement action.
IV. CONCLUSIONS OF LAW:
1. Carl S. Kline, as
Public Welfare,
provisions of Act
2. Upon termination
employee subject
of 1989.
a Purchasing Agent III in the Department of
was a public employee subject to the
9 of 1989.
of service, Kline became a former public
to the restriction of Section 3(g) of Act 9
Kline,, 92- 039 -C2
Page 9
3. Kline violated Section. 3(g)
represented his new employer,
compensation before his former
of Public Welfare, within one
service.
of Act 9 of 1989 when he
Colt Plumbing Company, for
governmental body, Department
year of termination of state
In Re: Carl S. Kline
: File Docket: 92- 039 -C2
Date Decided: February 16, 1993
Date Mailed: February 19, 1993
ORDER NO. 877
1. Carl S. Kline, as a former Purchasing Agent III in the
Department of Public Welfare, violated Section 3(g) of Act 9
of 1989 when he represented his new employer, Colt Plumbing
Company, for compensation before his former governmental body
within one year of termination of state service.
2. Kline is directed within thirty (30) days of issuance of this
Order to remit a check or payment in the amount of $201.13 to
this Commission payable to the Order of DPW.
3. Failure to comply with the provisions of Paragraph 2 will
result in the institution of an order action.
BY THE COMMISSION,
Afowe
JAMES M. HOWLEY,