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HomeMy WebLinkAbout1070 LarkinIn Re: Thomas Larkin J ^ \ STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Allan M. Kluger Boyd E. Wolff Julius Uehlein 97- 001 -C2 Order No. 1070 1/5/98 1/9/98 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seg., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was not filed and a hearing was deemed waived. The record is complete. This adjudication of the State Ethics Commission will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Act 9 of 1989, 65 P.S. §408(h). Any person who violates confidentiality of the Ethics Law 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). Confidentiality does not preclude discussing this case with an attorney at law. Larkin, 97- 001 -C2 Page 2 I. ALLEGATION: That Thomas Larkin, a public official in his capacity as a Councilman for Patton Borough, Cambria County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when he used the authority of his office for the private pecuniary benefit of a member of his immediate family by participating in discussions and /or decisions of the Borough Council to hire his brother for a position as Water Plant Operator /Trainee. Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. §403(a). Section 2. 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. "Conflict" or "conflict of interest" 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 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 P.S. §402. II. FINDINGS: 1. The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Thomas Larkin violated provisions of the State Ethics Act (Act 9 of 1989). 2. Upon review of the complaint the Investigative Division initiated a preliminary inquiry on January 7, 1997. 3. The preliminary inquiry was completed within sixty days. 4. On March 3, 1.997, a letter was forwarded to Thomas Larkin, by the Executive Director of the State Ethics Commission informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, no. P 487 031 788. b. The domestic return receipt bore the signature of Kathy Helbig, with a delivery date of March 4, 1997. Larkin, 97- 001 -C2 Page 3 5. On July 9, 1997, the Executive Director of the State Ethics Commission filed an application for a ninety day extension of time to complete the Investigation. 6. The Commission issued an order on August 14, 1997, granting the ninety day extension. 7. Periodic notice letters were forwarded to Thomas Larkin in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 8. The Investigative Complaint was mailed to the Respondent on November 19, 1997. 9. James Thomas Larkin is currently serving as a Councilman for Patton Borough in Cambria County, Pennsylvania. a. Larkin has been serving as a Councilman since January, 1984. b. Larkin's current term began in January, 1995. 10. Patton Borough Council is a six member council. 11. On September 20, 1996, Scott Campbell resigned his position as one of the Patton Borough Waste Water Plant Treatment Operator /Trainees. a. Scott Campbell's resignation was announced at a September 23, 1996, Regular Meeting of the Patton Borough Council. b. The Patton Borough Council accepted Scott Campbell's resignation at a September 27, 1996, Regular Meeting. 12. Based on Campbell's resignation, the Borough decided to advertise to find a replacement. 13. On September 25, 1996, a publication request was made by Patton Borough Secretary Donna Dunegan, advertising for the vacated water plant operator /trainee position. 14. Patton Borough, in response to the advertisement, received twenty -six (26) resumes for the water treatment plant operator /trainee position. 15. The Patton Borough Council Personnel Committee narrowed the pool of applicants to three finalists. a. Councilman Kenneth Bailey, Councilman Eugene P. Boyle, and Councilman David W. LaSota, II, served on the Patton Borough Council Personnel Committee. 16. The three finalists selected by the Personnel Committee were Michael Scott Miller, Michael T. Fitzpatrick, and Philip A. Larkin. a. Philip Larkin is the brother of James Thomas Larkin. Larkin, 97- 001 -C2 Page 4 17. Michael Fitzpatrick was previously employed by Patton Borough as a Waste Water Plant Treatment Operator Trainee from October 3, 1994, until February 7, 1995. a. Fitzpatrick was furloughed from the position as a result of a lawsuit filed by a candidate for the position at the time of Fitzpatrick's hiring. (1) The candidate alleged the Borough violated the Veterans' Preference Act. b. The lawsuit was settled and the Borough awarded the other applicant the position with back pay which resulted in Fitzpatrick being furloughed. 18. James Thomas Larkin learned from Philip Larkin, his brother, that he had applied for the position of waste water plant treatment operator /trainee. a. James Larkin was not aware that his brother would be an applicant. 19. Prior to a vote of council to select an applicant, Councilman Thomas Stoy spoke to Philip Larkin and inquired from him if he wanted Veterans' Preference used in his behalf for the waste water plant treatment operator /trainee position. a. Philip Larkin declined Veterans' Preference. b. Stoy's stepson was the applicant who filed suit in 1995. (See Finding No. 17(a) & (b)). 20. On October 25, 1996, Patton Borough Council Secretary Donna Dunegan, contacted borough solicitor Calvin J. Webb, II, and requested an opinion regarding Veterans' Preference in the hiring of the waste water plant treatment operator /trainee. a. The request was made at the behest of Borough Council. 21. On November 1, 1996, Calvin J. Webb sent a letter in response to Dunegan's request citing a recent PA Supreme Court case decisions [sic] regarding the applicability of Veterans' Preference. a. In the letter Webb stated, based upon the recent case law, "Assuming that the employer's requirements of that job are reasonable and the applicant (veteran) was "qualified" with respect to those requirements, the veteran should be hired." "On the other hand, assuming the employer's requirements for the job were reasonable and the applicant (veteran) was not "qualified" with respect to those requirements, the veteran should not be hired." b. In the letter Webb further advised that "If there is any dispute regarding Borough Council's ability to fairly apply and interpret the employers job requirements, Borough Council should defer the recommendation to an independent entity to avoid . any claims of political and /or personal influence." Larkin, 97- 001 -C2 Page 5 22. At the November 11, 1996, Regular Meeting of the Patton Borough Council, Council discussed the three finalists for the waste water plant treatment operator /trainee position. a. Councilman Bailey told the Council that Attorney Webb advised to hire the most qualified applicant regardless of Veterans' Preference. b. Councilman Boyle told the Council that the Personnel Committee unanimously concluded that Michael Miller was the most qualified but thought the job should be offered to Michael Fitzpatrick because of the way that he was laid off as a result of the lawsuit filed by Donald Yeckley. c. A motion was made by Councilman Paul R. Dubyak and seconded by Boyle to hire Michael Fitzpatrick for the water plant operator position upon a favorable opinion from Attorney Webb. d. Councilman Larkin made a motion to table Councilman Dubyak's motion until the full Council was present. There was no second. e. A roll call vote was taken on Councilman Dubyak's motion to hire Michael Fitzpatrick upon a favorable written opinion from Attorney Webb. (1) Councilman Dubyak, Councilman Boyle, and Councilman LaSota voted in favor of the motion. 2) Councilman Bailey voted in opposition of the motion. f. Councilman Larkin voted to table the motion. (1) Larkin asserted that he wanted to table the motion until Councilman Stoy was present because Stoy had information from Attorney Webb relevant to Veterans' Preference. 23. At the time of the November 11, 1996, meeting, Larkin knew that Councilman Stoy supported his brother Philip Larkin for the water plant treatment operator /trainee position. a. Councilman Larkin knew his brother Philip Larkin did not want Veterans' Preference used on his behalf for this position. 24. Of the three final applicants, the only veteran was Philip Larkin. 25. On November 18, 1996, a Special Meeting of the Patton Borough Council was held. a. All members of the Council were present for this meeting. b. Secretary Donna Dunegan advised the Council that Attorney Calvin Webb would not give a written opinion on who the Borough should hire for the waste water plant treatment operator /trainee position. Larkin, 97- 001 -C2 Page 6 (1) Attorney Calvin Webb's verbal opinion was that the hiring was an administrative decision by the Patton Borough Council. (2) Solicitor Webb believed that outside counsel should be sought for a ruling. 26. As a result of Solicitor Webb not providing a written opinion the vote on November 11, 1996, to hire Michael Fitzpatrick was not valid. (See Finding No. 22(c), (d), (e))- 27. At the November 18, 1996, Special Meeting of the Patton Borough Council, James Thomas Larkin spoke on behalf of hiring his brother Philip Larkin. a. Councilman Larkin cited that his brother Philip Larkin put in for the job and was qualified and sincere. b. James Larkin asserted that Webb's opinion was to hire the veteran applicant. 28. Councilman Larkin made a motion during the November 18, 1996, meeting to hire his brother Philip Larkin for the waste water treatment operator /trainee position. a. Councilman Thomas Stoy seconded Councilman Larkin's motion to hire Philip Larkin. b. Councilman Stoy, Councilman Larkin, Councilman Dubyak, and Councilman Bailey voted in favor of the motion. c. Councilman Boyle and Councilman LaSota voted in opposition of the motion. d. Councilman Larkin's motion to hire Philip Larkin carried four votes to two. 29. Philip Larkin started working for Patton Borough as the Waste Water Plant Treatment Operator /Trainee on December 4, 1996. a. Larkin's starting salary was $4.75 per hour, the entry level salary. 30. As of October 17, 1997, Philip Larkin's hourly rate of pay was $5.50 per hour. a. His salary increased $ .25 /hour, per quarter, from his starting date as per policy of the Borough. 31. As of October 17, 1997, Philip Larkin has been paid $9,176.22, by Patton Borough as salary for his position as the Waste Water Treatment Plant Operator /Trainee. 32. At the regular monthly meetings of Patton Borough Council Thomas Larkin participated in actions to approve bill listings which included the Borough payroll. Larkin, 97- 001 -C2 Page 7 a. Philip Larkin's salary was included as part of the payrolls approved by Council. b. Bill listings were unanimously approved for payment. III. DISCUSSION: At all times relevant to this matter, the Respondent, Thomas Larkin (also referred to herein as "Larkin" and "Respondent Larkin "), has been a public official subject to the provisions of the Public Official and Employe Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, at seq. The allegation is that Larkin, as a Councilman for Patton Borough, Cambria County, violated Section 3(a) of the Ethics Law when he used the authority of his office for the private pecuniary benefit of a member of his immediate family by participating in decisions of the Borough Council to hire his brother for a position as Water Plant Operator /Trainee. Pursuant to Section 3(a) of the Ethics Law quoted above, a public official /public employee is prohibited from engaging in conduct that constitutes a "conflict of interest," as defined above. The material facts are as follows. Larkin has served as a Councilmember for Patton Borough since January, 1984. The Patton Borough Council consists of six members. In September, 1996, one of the Patton Borough Waste Water Plant Treatment Operator /Trainees resigned from his position. The Borough advertised for a replacement. Twenty -six resumes were received. One of the applicants was Phillip Larkin, the Respondent's brother. However, initially, Respondent was not aware that his brother had applied for the position. The Patton Borough Council Personnel Committee, which consisted of three other Council Members — Kenneth Bailey, Eugene P. Boyle, and David W. LaSota, II — narrowed the pool of applicants to three finalists. The three finalists were Michael Scott Miller, Michael T. Fitzpatrick, and Phillip A. Larkin. Of the three finalists, Phillip Larkin was the only veteran. . Finalist Michael Fitzpatrick had previously been employed by Patton Borough as a Waste Water Plant Treatment Operator /Trainee for four months (from October 3, 1994 through February 7, 1995), but he had been furloughed as a result of the Borough's settlement of a law suit that had been filed relative to that position, involving an alleged violation by the Borough of the Veterans' Preference Act. Prior to Council's vote to select an applicant for the position that became available in 1996, Councilman Stoy spoke to Phillip Larkin and asked whether he wanted Veterans' Preference to be used in his behalf for the position. Phillip Larkin declined Veterans' Preference. At the behest of Borough Council, the Borough Council Secretary, Donna Dunegan, contacted the Borough Solicitor, Calvin J. Webb, II, and requested an Lall_cin, 97- 001 -C2 Page 8 opinion regarding Veterans' Preference as to the hiring of the Waste Water Plant Treatment Operator /Trainee. On November 1, 1996, Solicitor Webb sent a response which is detailed at Finding 21. Solicitor Webb's response indicated that if the applicant (veteran) was "qualified" with respect to the reasonable requirements of the job, the veteran should be hired, but that if the applicant (veteran) was not qualified with respect to such requirements, the veteran should not be hired. At the November 11, 1996 Regular Meeting of Patton Borough Council, Council discussed the three finalists for the position. Councilman Bailey stated that Solicitor Webb advised to hire the most qualified applicant regardless of Veterans' Preference. Councilman Boyle stated that the Personnel Committee unanimously concluded that Miller was the most qualified but that the job should be offered to Fitzpatrick because of his past layoff as a result of the previous lawsuit. A motion was made by Councilman Dubyak and seconded by Boyle to hire Fitzpatrick upon a favorable opinion from Solicitor Webb. Larkin made a motion to table Councilman Dubyak's motion until the full Council was present. That motion failed for a second. A roll call vote was then taken on Dubyak's motion to hire Fitzpatrick upon a favorable written opinion from Solicitor Webb. Three Council Members — Dubyak, Boyle, and LaSota — voted in favor of the motion. Councilman Bailey voted in opposition to the motion. Larkin voted to table the motion. Larkin asserted that he wanted to table the motion until Councilman Stoy was present, because Stoy had information from Solicitor Webb relevant to Veterans' Preference. The facts as deemed admitted by Larkin establish that Larkin knew that Stoy supported Larkin's brother, Phillip Larkin, for the position. He also knew that his brother did not want Veterans' Preference to be used on his behalf for the position. On November 18, 1996, a Special Meeting of Council was held. All Members were present. Secretary Donna Dunegan advised that Solicitor Webb would not provide a written opinion on who the Borough should hire for the Waste Water Plant Treatment Operator/Trainee position. Webb's verbal opinion was that the hiring was an administrative decision for Council and that outside counsel should be sought for a ruling. Accordingly, since Solicitor Webb did not provide a written opinion, the vote on November 11, 1996 to hire Michael Fitzpatrick was not valid. At the November 18, 1996 Special Meeting, Respondent Larkin spoke on behalf of hiring his brother. Respondent Larkin stated that his brother, Phillip Larkin, put in for the job and was qualified and sincere. Respondent Larkin asserted that Solicitor Webb's opinion was to hire the veteran applicant. Larkin made a motion during the November 18, 1996 meeting to hire Phillip Larkin for the Waste Water Treatment Operator /Trainee position. Councilman Stoy seconded Larkin's motion. Respondent Larkin, together with Councilmembers Stoy, Dubyak, and Bailey, voted in favor of the motion. Councilmembers Boyle and LaSota voted in opposition to the motion. Consequently, Respondent Larkin's motion to hire his brother carried by a vote of 4 -2. Phillip Larkin commenced working for Patton Borough as the Waste Water Plant Treatment Operator /Trainee on December 4, 1996. Respondent Larkin has regularly participated in actions to approve bill listings which have included the Borough payroll and specifically, his brother's salary. In applying the allegation to the material facts, we note that the allegation is limited to the Respondent's involvement in the Borough's hiring of his brother, Phillip Larkin, 97- 001 -C2 Page 9 Larkin. In that regard, we find that Respondent did violate Section 3(a) of Act 9 of 1989. The elements of a Section 3(a) violation are the use of the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. The element of "use of authority of office" is met by Larkin's repeated actions to advocate and advance the hiring of his brother. Larkin initially used the authority of his office in favor of his brother at the November 11, 1996 Regular Meeting, when he made a motion and voted to table Councilman Dubyak's motion to hire a competing applicant, Michael Fitzpatrick. Subsequently, at the November 18, 1996 Special Meeting, Larkin again used the authority of office when he vocally advocated hiring his brother, and when he made the motion and voted to hire his brother. The element of "private pecuniary benefit" is met by the hiring of Respondent Larkin's brother, a member of his immediate family, to a salaried Borough position. Given that each element of a Section 3(a) violation is met, we hold that Respondent Thomas Larkin violated Section 3(a) of the Public Official and Employe Ethics Law, Act 9 of 1989, when he repeatedly used the authority of his office in favor of the hiring of his brother, Phillip Larkin, by Patton Borough. See, Taliff, Order No. 954. In so holding, we note that Veterans' Preference is not an issue in this case. Respondent has not raised it or any other issue. Moreover, the disposition of this case would not hinge upon whether Phillip Larkin would have been legally entitled to the job. A violation of Section 3(a) would exist without regard to whether Larkin actually affected the outcome of the hiring. In Snyder v. SEC, 686 A.2d 843 (1996), Petition for Allowance of Appeal den., 0029 Middle District Allocatur Docket 1997 (Pa. December 22, 1997), Commonwealth Court of Pennsylvania emphatically stated: We are likewise unconvinced by the fact that Snyder's vote was never controlling or necessary for a quorum. Snyder violated the Ethics Law by discussing and voting on issues in which he had a private pecuniary interest. not by affecting the outcome of those votes. Similarly, it is irrelevant whether Snyder improperly used his influence as a Supervisor to gain the Colonial Commons and Blue Meadow contracts; Snyder may have been able to obtain the jobs even if he were not a Supervisor. but as a Supervisor. he should not have considered and voted on issues involving his personal business dealings. Snyder v. SEC, 686 A.2d at 849 (Emphasis added). Likewise, it is irrelevant in this case whether Phillip Larkin should have or would have gotten the job without his brother's "help." As a matter of law, Respondent Thomas Larkin violated the Ethics Law by discussing and voting as to the Borough's hiring of a Water Plant Treatment Operator /Trainee where his brother was one of the applicants. Larkin, 97- 001 -C2 Page 10 IV. CONCLUSIONS OF LAW: 1. Thomas Larkin (Larkin), as a Councilman in Patton Borough, Cambria County, is a public official subject to the provisions of the Public Official and Employe Ethics Law ( "Ethics Law "), Act 9 of 1989. 2. Larkin violated Section 3(a) of the Ethics Law when, at the November 11, 1996 Regular Meeting of Patton Borough Council, he made a motion and voted to table another Councilman's motion to hire a competing applicant for a position sought by his brother, and when, at the November 18, 1996 Special Meeting of Patton Borough Council, he spoke on behalf of hiring his brother and made a motion and voted to hire his brother, Phillip Larkin. In Re: Thomas Larkin File Docket: Date Decided: Date Mailed: ORDER NO. 1070 BY THE COMMISSION, 97- 001 -C2 1/5/98 1/9/98 Thomas Larkin (Larkin), as a Councilman in Patton Borough, Cambria County, violated Section 3(a) of the Ethics Law when, at the November 11, 1996 Regular Meeting of Patton Borough Council, he made a motion and voted to table another Councilman's motion to hire a competing applicant for a position sought by his brother, and when, at the November 18, 1996 Special Meeting of Patton Borough Council, he spoke on behalf of hiring his brother and made a motion and voted to hire his brother, Phillip Larkin. oYNtif),AJ6 DANEEN E. REESE, CHAIR