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HomeMy WebLinkAbout047-S MullerSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 IN RE: EDWARD F. MULLER, JR. : File Docket: 92 -035 -P : Date Decided: February 16, 1993 Respondent : 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 information regarding possible violation(s) of Section 4 and /or Section 5 of the Public Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, 65 P.S. S401 et seq. Written Notice was mailed to Respondent in accordance with Section (7) (5) of the Ethics Law, as to which there was no response. A Notice and Order to Show Cause was issued and served upon Respondent. An Answer and letter response were filed and a hearing was requested. A hearing was held on November 5, 1992. The record is complete. This adjudication of the Commission is hereby issued, which sets forth Findings of Fact, Discussion, Conclusions of Law and Order. This Adjudication is final and is a public document. Reconsideration may be requested. 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(b),(c). Edward F. Muller, Jr. February 19, 1993 Page 2 I. FINDINGS: A. PLEADINGS: 1. Respondent Edward F. Muller, Jr. resides or maintains a mailing Thornton, Pennsylvania 19373. 2. Respondent is now and at all proceedings has been a Member of Park Commission ( "Commission "). is an adult individual who address at Woodridge Road, times relevant to these the Brandywine Battlefield a. Respondent has served on the said Commission, both as a Member and as its Chairman, for over twenty years. b. Respondent specifically served on the Commission in 1991. 3. Respondent states that Members of the Brandywine Battlefield Park Commission would be within the statutory exception to the definition of "public official" and therefore not subject to the provisions of the Ethics Law, based upon the following assertions: a. The role of the Commission has always been purely advisory with respect to financial matters. b. The Commission has never expended any public funds and did not expend any in 1991. c. The Commission has no charge of any public funds. (1) All of the funds which are used for the operation of the Park come from the general appropriation made to the Pennsylvania Historical and Museum Commission ( "PHMC ") and are not "line itemed" specifically for the said Commission. (2) All such funds are managed, controlled, expended, and accounted for by the PHMC under a budget prepared and adopted by the PHMC, and Respondent cannot recall a single instance when the PHMC asked Brandywine Battlefield Park Commission for approval. d. The Site Administrator is .chosen by the PHMC, subject to the approval of the Brandywine Battlefield Park Commission, but he is an employee of PHMC and takes all of his directions relative to money from the PHMC. e. Respondent states that all Park employees are chosen and Edward F. Muller, Jr. February 19, 1993 Page 3 paid by the PHMC. f. Respondent asserts that an examination of the minutes of the monthly meetings of the Brandywine Battlefield Park Commission will disclose that it acts solely in an advisory capacity. 4. Respondent states that to his knowledge, no remuneration was ever requested, offered or received by any of the Commissioners for service on the Commission. 5. Respondent did not file a Statement of Financial Interests for calendar year 1990 with the State Ethics Commission and the Governor's Office of Administration on or before May 1, 1991. a. Respondent admits that he did not file a Statement of Financial Interests for calendar year 1990. b. Respondent denies that his failure to do so constitutes a "transgression" of Sections 4 and 5 of the Ethics Law for the reasons set forth above. 6. The records of the State Ethics Commission indicate that a letter dated June 18, 1991, was issued to the Respondent as service of Notice in accordance with Section 7(5) of the Ethics Law of the specific allegations against Respondent concerning this matter. The said Notice letter provided Respondent an opportunity to avoid the institution of these civil penalty proceedings by filing a completed Statement of Financial Interests for calendar year 1990 within fourteen (14) days of the date of the Notice letter. a. Respondent has no recollection of receiving the Notice letter. b. At the time alleged, Respondent was in the process of retiring and attempting to sell the building in which he conducted his business. c. Respondent states that the Notice may have been inadvertently overlooked. 7. Respondent did not file a Statement of Financial Interests with the State Ethics Commission and the Governor's Office of Administration for calendar year 1990 within fourteen days of the date of the said Notice letter. 8. For the reasons set forth above, Respondent denies that there are no mitigating circumstances such that he should be assessed the maximum civil penalty. Edward F. Muller, Jr. February 19, 1993 Page 4 a. Respondent states that he sincerely believed that given the ordinary, everyday meaning under the English language of the words of the Ethics Law, he was not subject to its provisions. B. TESTIMONY: 9. Katherine Ann Reese ( "Reese ") is an adult individual who resides or maintains mailing addresses at 4 Frog Pond Road, Chadds Ford, Pennsylvania, and P.O. Box 703, Mendehall, Pennsylvania 19357. a. Reese served as a Commissioner on the Brandywine Battlefield Park Commission from approximately 1979 through her resignation on March 4,, 1991, which resignation was accepted by the Governor's Office on April 23, 1991. b. Reese's service on the Commission was voluntary and uncompensated. c. Reese has no objection to filing the Statement of Financial Interests, and has previously done so. d. Following her resignation from the Commission in 1991, Reese received a Notice letter asking her to complete the Statement of Financial Interests. (1) Reese assumed the Notice letter did not apply to her and disposed of it. (2) Reese assumed that the Notice letter = sought filing for the coming year. (3) Reese assumed that the Notice letter was issued erroneously without knowledge of her resignation. (4) Reese believed that having resigned from the Commission, she was not required to file the form as requested. (5) Reese ultimately telephoned the State Ethics Commission regarding this matter by which time proceedings had already been initiated against her. e. On November 5, 1992, Reese filed a Statement of Financial Interests for calendar year 1990. f. Reese states that the Commission was an advisory commission, with Harrisburg making all the financial Edward F. Muller, Jr. February 19, 1993 Page 5 decisions. (1) To Reese's recollection, the Commission had no power over money. (a) Reese does not recall ever having voted on any money measure. (b) Reese personally never made recommendations as to financial matters such as the budget. (c) Although the Commission discussed eented b udg e t in policy, the budget was presented and the Commission did not approve it and exercised no power over it. (2) The Commission recommended work to be done at the Park. (a) When tree work was needed, PHMC hired a tree man and the Commission did not have the final responsibility in selecting the tree man. g. No one ever attempted to bribe or influence Reese with respect to anything that was being done by the Commission in any way. h. To Reese's knowledge, she never had any dealings with anybody who had business interests with the Commission. 10. Edward F. Muller has served on the Commission since 1971. a. When Muller first became a Member of the Commission, the Commission had some control over donated monies known as the "fish bowl fund." (1) transferred early o 1980's, to s historic 1 fund preservation fund administered by PHMC. b. Since the early 1980's, the Commission has never handled any funds. c. Muller cannot recall a single instance where the Commission has voted on any expenditure since the fish bowl fund was transferred to the historic preservation fund. (1) The Commission recommends work to be done, but PHMC makes all the decisions with respect to Park Edward F. Muller, Jr. February 19, 1993 Page 6 expenditures, lets all contracts, and pays for all work performed without any involvement by the Commission. (2) None of these decisions are made by the Commission. d. The Commission exercises no control over its own funding. (1) In the 1970's and early 1980's, PHMC's budget contained a line item appropriation for Brandywine Battlefield Park. (a) The budget was prepared in Harrisburg with little or no input from the Commission except in an advisory capacity. (2) In the middle 1980's, the line item appropriation for the Park disappeared from PHMC's budget, after which the Park's funding consisted of whatever funds PHMC would allocate to the Park from PHMC's general appropriation funds. e. PHMC fixes admission fees at the Park, which fees go into general state funds. f. The Commission plays no role in hiring employees to work at the Park. g- (1) The Site Administrator is an employee of PHMC. (2) All other employees at the Park are hired by PHMC, except for employees of the Brandywine Battlefield Park Associates Group. (aft, Finding llg below). The Commission is informed of PHMC hirings after they occur. The Brandywine Battlefield Park Associates Group is a non - profit corporation funded by membership dues and fund - raising events. (3) (1) On or about 1979 or 1980, decision to form the said with the approval of PHMC, prepare the necessary pape the Commission made the non - profit corporation, and directed Muller to rwork. (2) The Brandywine Battlefield Park Associates Group hires individuals to work at a store in the Park and /or to teach summer camps. Edward F. Muller, Jr. February 19, 1993 Page 7 (3) The Brandywine Battlefield Park Associates Group sponsors programs at the Park. h. The Commission only functions in an advisory capacity to communicate to PHMC the feeling of the community with respect to the Park. (1) The Commission has only four meetings a year, to which the Site Administrator brings an agenda of items for which he needs assistance or advice. i. Muller states that on or about 1983, the Commission entered into an agreement delegating to PHMC all of the Commission's major duties under the original enabling act, thereby reducing the Commission to an advisory commission only. (1) Muller states that on or about 1983, there was a movement in the Legislature to do away with the Commission, which movement the Commission opposed. (2) At this time, Muller had been Commission Chairman for four to five years. (3) Muller met with the administrator /director of PHMC and agreed on a set of "principles." (4) Thereafter, Muller drafted the agreement delegating to PHMC duties which PHMC had been performing anyway, being the major duties given to the Commission under the original enabling act. (5) Following review by various state departments, the agreement was executed. (6) The agreement was a one -year agreement with automatic renewal absent notice of cancellation to either side. j (7) The said agreement has never been cancelled. The Commission does not exercise custody, control, management and /or supervision of the Park. (37 Pa.C.S. 5703(c)). (1) The above functions are performed by the Site Administrator through PHMC. (2) The Site Administrator seeks advice from the Commission. Edward F. Muller, Jr. February 19, 1993 Page 8 m . k. 1. With regard to budget preparation duties (37 Pa.C.S. §703(c)(2),(3);(d)), the Commission does not exercise any control over its budget. To Muller's knowledge, the annual plan is prepared almost entirely by the Site Administrator, an employee of PHMC. The plan is presented to and reviewed with the Commissioners item by item. Input is sought from the Commission. The budget is finally adopted by PHMC. Muller does not believe that in the last several years the Commission has been asked'to approve the plan. (a) Muller states that even if the Commission was asked to approve the plan, it has been a "pro forma rubber stamp operation." (6) To Muller's knowledge, the Commission has not entered into agreements with PHMC specifying the funding to be made available to the Commission. (37 P.S. S703(d)). Although the elected officers of the Commission are to include a treasurer (37 Pa.C.S. §703(b)), the Commission has no treasurer. Muller admits he did not file the Statement of Financial Interests for calendar year 1990. (1) Muller has filed Statements of Financial Interests in the past. Muller feels the form is intrusive believe the filing is required. Muller filed a Statement of Financial calendar year 1990 with his response to Show Cause. and does not Interests for to the Order n. Muller states that he has never represented anybody that had any business to do with the Park in any way. o. Muller states that nobody has ever tried to influence him in the performance of Commission duties. Edward F. Muller, Jr. February 19, 1993 Page 9 C. EXHIBITS: 11. Based upon a diligent and thorough examination of the official records of the State Ethics Commission, no Statement of Financial Interests for calendar year 1990 was received from Katherine Reese for service as a Member of the Brandywine Battlefield Park Commission, on or before the close of office hours on May 1, 1991, nor was any Statement of Financial Interests for calendar year 1990 subsequently received from Katherine Reese bearing an official United States postmark of on or before May 1, 1991. (A Statement of Financial Interests dated October 5, 1992, for calendar year 1990 was received from Katherine Reese on November 5, 1992. (See Finding 9e)). 12. Based upon a diligent and thorough examination of the official records of the State Ethics Commission, no Statement of Financial Interests for calendar year 1990 was received from Edward F. Muller, Jr., for service as a Member of the Brandywine Battlefield Park Commission, on or before the close of office hours on May 1, 1991, nor was any Statement of Financial Interests for calendar year 1990 subsequently received from Edward F. Muller, Jr., bearing an official United States postmark of on or before May 1, 1991. 13. A Statement of Financial Interests dated May 4, 1992, for calendar year 1990 was received from Edward F. Muller, Jr., on May 5, 1992. 14. A review of the minutes of the Brandywine Battlefield Park Commission's meetings of April 16, 1990, June 18, 1990, September 10, 1990, November 19, 1990, June 17, 1991, September 9, 1991, and December 2, 1991, reflects no substantive determinations as to fiscal expenditures, capital purchases, Park maintenance, personnel, or other non - advisory decision making by the Commission. 15. A review of the minutes of the Brandywine Commission's regular quarterly meeting of reflects no substantive determinations expenditures, capital purchases, Park personnel by the Commission. Battlefield Park March 9, 1992, as to fiscal maintenance, or a. The Commission voted to approve a draft annual plan for 1992 -1993 presented by the Administrator. 16. A review of the minutes of the Brandywine Battlefield Park Commission's regular quarterly meeting of March 11, 1991, reflects no substantive determinations as to fiscal expenditures, capital purchases, Park maintenance, or personnel by the Commission. Edward F. Muller, Jr. February 19, 1993 Page 10 a. The minutes do reflect the prior approval by the "Commissioners" in a telephone survey of an admission fee increase, without indicating whether the Commissioners approving said increase were of PHMC or the Brandywine Battlefield Park Commission. b. The minutes reflect that the Site Administrator presented his draft of the annual plan which was approved by the Commissioners with two revisions. (1) One revision pertained to the Commission, and inserted the words "subject to the consent of the Brandywine Battlefield Park Commission" in Part IVa of the annual plan, but the minutes do not reflect the substantive nature of that portion of the plan. 17. A letter dated February 3, 1983, from Barbara S . Drake, Deputy General Counsel of the Commonwealth of Pennsylvania, Office of General Counsel to Muller addressed questions raised by Muller with regard to the delegation of authority by the Brandywine Battlefield Park Commission to PHMC. a. The letter opined that generally, a delegation of authority by the Commission to PHMC would be appropriate under general principles applicable to governmental entities and in light of the statutory authority granted to PHMC. b. The letter cautioned, . . however, the delegation of authority cannot include a delegation of the statutory responsibility of the Brandywine Battlefield Commission and such delegation will not exonerate your Commission from responsibility for any errors or omissions which might occur." c. The letter opined that the delegations in the proposed agreement comport with legal requirements for such a delegation of authority by a public body. 18. The agreement entered into by PHMC and the Commission delegates certain management functions to PHMC as follows: a. PHMC is delegated the management of administrative matters relating to personnel; the representation of the interests of the Commission in all union negotiations for Park employees; and the handling of all formal proceedings involving employee grievances; b. PHMC is in charge of purchasing materials, supplies and equipment; Edward F. Muller, Jr. February 19, 1993 Page 11 c. PHMC is responsible for selecting a historic Site Administrator, in consultation with the Commission, but the selection of that individual is subject to final approval by the Commission; d. The Site Administrator is directly responsible to and under the supervision of the Commission and is responsible for implementing the decisions and instructions of the Commission in all matters relating to the Commission's statutory responsibilities for operation and management; e. Any decision or instruction of the Commission involving Park policy which is believed by the Site Administrator to be inadvisable or contrary to state law, policy, and procedure, is submitted to PHMC for an advisory opinion, but the final decision for any such matter is made by the Commission with the Commission assuming full responsibility; f. No major physical changes are to be made to the grounds or buildings without the approval of both PHMC and the Commission; g. The Commission is to prepare an annual plan for Park events and uses, which plan is to be within any PHMC guidelines as far as is practical and is to be submitted to PHMC for review and suggested revisions, but no revision is to be adopted without the vote of two- thirds of the Brandywine Battlefield Park Commission Members present; h. The Commission may request assistance in contracting matters from legal counsel and PHMC; i. The Commission and PHMC are to prepare all plans for the future physical development of the Park, with the Commission being responsible for implementing such plans with the assistance of PHMC if requested, and with all contracts being required to be approved by PHMC; The Commission, in consultation with PHMC, is to prepare an annual budget, which, after approval, becomes the basis for all expenditures, and with the Commission establishing priorities with respect to expenditures for fixed assets, repair of major facilities and capital fund expenditures; and k. PHMC is to use a portion of the funds in the historical preservation fund for the Park as set forth more Edward F. Muller, Jr. February 19, 1993 Page 12 specifically in the agreement. 19. The agreement is automatically renewed each year unless either party notifies the other of its intention to treat the agreement as terminated on its next succeeding anniversary date. II. DISCUSSION: Respondent has been a Member of the Brandywine Battlefield Park Commission at all times relevant to these proceedings. Respondent specifically held the aforesaid position in 1991. Factually, it is clear that Respondent did not file a Statement of Financial Interests for calendar year 1990 with the State Ethics Commission and the Governor's Office of Administration, on or before May 1, 1991. Section 9(f) of the Ethics Law provides as follows: (f) In addition to any other civil remedy or criminal penalty provided for in this act, the commission may, after notice has been served in accordance with section 7(5) and upon a majority vote of its members, levy a civil penalty upon any person subject to this act who fails to file a statement of financial interests in a timely manner or who files a deficient statement of financial interests, at a rate of not more than $25 for each day such statement remains delinquent or deficient. The maximum penalty payable under this paragraph is $250. 65 P.S. S409(f). It is also clear in this case that the prerequisite service of a Notice letter in accordance with Section 7(5) was satisfied. Respondent's failure to recollect receiving the Notice letter would be insufficient to overcome the public records of the State Ethics Commission, which reflect that the Notice was served upon Respondent. Additionally, it is noted that Respondent acknowledges that the Notice letter may have been overlooked. The fundamental issue in this case, however, is whether Respondent as a Member of the Brandywine Battlefield Park Commission would be a "public official" as that term is defined under the Public Official and Employee Ethics Law ( "Ethics Law "), 65 P.S. §401, et sec., and the Regulations of the Commission. The statutory definition is as follows: "Public official" Any person elected by the public or elected or appointed by a Edward F. Muller, Jr. February 19, 1993 Page 13 governmental body, or an appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. The Regulations of the State Ethics Commission similarly define the term "public official" as above and also provide as follows: Section 1.1 Definitions Public officials - -- An elected or appointed official in the executive, legislative or judicial branch of the government of the Commonwealth or its political subdivisions. The terms does not include a member of an advisory board who has no authority to spend public funds other than reimbursement for personal expenses or to otherwise exercise the power of the State or a political subdivision thereof. (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis effect on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the State or a political subdivision if one of the following exists: (I) The body makes binding decisions or Edward F. Muller, Jr. February 19, 1993 Page 14 51 Pa. Code §1.1. orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations, or ordinances. (VII) The body has the power of eminent domain, or condemnation. (VIII) The enabling legislation of the body indicates that the body is established for exercising public powers of , the Commonwealth or a political subdivision. We must review the status of Members of the Brandywine Battlefield Park Commission under these provisions of the statute and the Regulations of the Commission in light of their duties and responsibilities. Our inquiry necessarily focuses on the office itself and not on the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying a position may carry out those functions. See Philips v. State Ethics Commission, 79 Pa. Commw. 491, 470 A. 2d 659 (1984); Mummau v. Ranck. 531 Fed. Supp. 402 (E.D. Pa. 1982). The Commonwealth Court in its ruling in Phillips, supra, at page 661, directs us to construe coverage of the Ethics Act broadly, rather than narrowly, and conversely, directs that exclusions from the Ethics Act should be narrowly construed. Before addressing the pertinent statutory provisions, however, Edward F. Muller, Jr. February 19, 1993 Page 15 we must initially reject the argument that a governmental body can free itself from the power to perform its statutory duties merely by delegating those duties to some other entity. Even if we assume that the delegation of the duties themselves is properly accomplished, the power to so delegate and the power to terminate such a delegation are inherently part of the delegating body's ultimate power to exercise its authorities and perform its duties itself. Indeed, the letter submitted as Respondent's Exhibit 2, dated February 3, 1983 from Deputy General Counsel Barbara S. Drake of the Office of General Counsel, specifically cautioned that the delegation of authority by the Brandywine Battlefield Park Commission to PHMC ". . . cannot include a delegation of the statutory responsibility of the Brandywine Battlefield Commission and such delegation will not exonerate [the] Commission from responsibility for any errors or omissions which might occur." Furthermore, a review of the proffered agreement itself would not, in our view, leave the Commission with a purely advisory role. To the contrary, the Commission retained the ultimate decision making power on many matters as set forth more fully in Finding 18 above. In any event, our determination of the status of the Members of the Brandywine Battlefield Park Commission must disregard the agreement. Such an agreement may neither diminish nor enlarge upon the statutory duties and powers of the Commission. The only relevant reference, therefore, is the statute which sets forth the powers and duties of the Brandywine Battlefield Park Commission, specifically 37 Pa.C.S. §703. The language of the statute, however, is ambiguous. 37 Pa.C.S. §703(c) on the one hand appears to preserve the power of the Commission, notwithstanding certain powers given to PHMC. On the other hand, the enumerated duties of the Commission may well be deemed advisory. Similarly, 37 Pa.C.S. S703(d) involving the funding of the Park is vague in its requirement that the Commission and PHMC "agree" on funding. Thus, we are presented with a very difficult situation in this case. We find both Reese and Muller to have been very credible, and we do not doubt their sincere belief that they would fit within the exclusionary language of the definition of "public official" as set forth within the Ethics Law. But we may not simply rely upon their perceptions of their duties, or even upon the specific duties actually performed by the Commission. Rather, we must rely upon the statutory power given to the Commission. Unfortunately, the statutory provisions are ambiguous. In this case, we find that for purposes of the Ethics Law, the statutory powers and duties of the Brandywine Battlefield Park Commission fail to conclusively bring Respondent within the definition of "public official" set forth in the Ethics Law. Edward F. Muller, Jr. February 19, 1993 Page 16 We therefore conclude that Respondent, as a Member of the Brandywine Battlefield Park Commission, is not a "public official" as defined in the Ethics Law, and therefore is not subject to the requirement to file Statements of Financial Interests. We would caution that our decision in this matter is based upon the unique circumstances surrounding the Brandywine Battlefield Park Commission, and would have limited, if any, precedential effect. In light of our above conclusion, no civil penalty may be levied in this case. III. CONCLUSIONS OF LAW: 1. Respondent Edward F. Muller, Jr., has at all times relevant to these proceedings been a Member of the Brandywine Battlefield Park Commission. 2. As a Member of the Brandywine Battlefield Park Commission Respondent is not a "public official" as defined in the Ethics Law, and therefore is not subject to the requirement to file Statements of Financial Interests. 3. No civil penalty may be levied in this case. IN RE: EDWARD F. MULLER, JR. : File Docket: 92 -035 -P Date Decided: February 16, 1993 Respondent Date Mailed: February 19, 1993 ORDER NO. 047 -S 1. Respondent Edward F. Muller, Jr., as a Member of the Brandywine Battlefield Park Commission, is not a "public official" as defined in the Ethics Law, 65 P.S. S401, et seq., and therefore is not subject to the requireihent to file a Statement of Financial Interests. No civil penalty may be levied against Respondent in this matter. BY THE COMMISSION, James M. Howley, r Vice Chair Daneen E. Reese and Commissioner Joseph W. Marshall, III, dissent in that they would find that the Members of the Brandywine Battlefield Park Commission are public officials required to file Statements of Financial Interests. Commissioner Austin M. Lee did not participate in the final decision of this case because he presided at the hearing as one Commissioner and recused himself.