HomeMy WebLinkAbout1115 KannenbergIn Re: Donald Kannenberg
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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
Julius Uehlein
Louis W. Fryman
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
98- 062 -C2
Order No. 1115
2/26/99
3/10/99
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 gt se o., 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 waived. The record is complete. A Consent
Agreement was submitted by the parties to the Commission for consideration which
was subsequently approved.
Effective December 15, 1998, Act 9 of 1989 was replaced by the Public Official
and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11, 65 Pa.C.S.
§1101 21 seq., which essentially repeats Act 9 of 1989 and provides for the
completion of pending matters under that Act.
This adjudication of the State Ethics Commission is issued under Act 93 of
1998 and 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 the Ethics Act.
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.
Confidentiality does not preclude discussing this case with an attorney at law.
Kannenberg, 98- 062 -C2
Page 2
I. ALLEGATION: That Donald Kannenberg, a public official /public employee
in his capacity as a Supervisor for Apolacon Township, Susquehanna County, violated
Section 3(a) of the State Ethics Act (Act 9 of 1989) when he used the authority of his
office for a private pecuniary benefit by participating in actions of the board of
supervisors to approve payments to the township solicitor for performing private legal
work on his behalf.
11. FINDINGS:
1. Donald Kannenberg has served as a supervisor for Apolacon Township,
Susquehanna County since January, 1988.
2. Beginning in January, 1997, and continuing through March 4, 1998,
Kannenberg was the subject of a State Ethics Commission investigation,
case no. 97- 005 -C2.
3. On March 4, 1998, an Investigative Complaint was issued to Kannenberg
in regard to case no. 97- 005 -C2.
4. On March 24, 1998, Attorney Charles Aliano wrote a letter addressed to
Robin Hittie of the State Ethics Commission, Legal Division, requesting
a 30 -day extension of time be granted to respond to the Investigative
Complaint issued to Kannenberg.
a. Aliano was not representing Kannenberg because of a conflict of
interest, but wrote the letter as a favor to Kannenberg.
5. On March 24, 1998, Chief Counsel Vincent Dopko advised Kannenberg
through Aliano that his 30 -day extension of time to answer the
Investigative Complaint had been granted.
6. On or about March 24, 1998, Kannenberg discussed the Investigative
Complaint with Apolacon Township solicitor Michael Giangrieco.
7. Giangrieco advised Kannenberg that he could represent him on the matter
with the State Ethics Commission, provided it was voted on by the
supervisors and Kannenberg abstained from the vote.
a. Giangrieco's decision to represent Kannenberg was based on the
alleged violation occurring while Kannenberg was a supervisor.
8. On April 7, 1998, the Board of Supervisors voted to authorize township
solicitor Giangrieco to represent Kannenberg on the State Ethics
Complaint.
a. Kannenberg abstained from the vote.
b. Kannenberg did not provide a signed disclosure statement.
9. The Board of Supervisors based their decision to use Giangrieco for the
State Ethics Commission complaint on the advice Giangrieco provided to
Kannenberg.
10. On April 9, 1998, Giangrieco submitted a letter to Robin Hittie of the
State Ethics Commission indicating he was formally representing Donald
Kannenberg on case no. 97- 005 -C2.
Kannenberq,
Page 3
11.
98- 062 -C2
Giangrieco filed an Answer to the Investigative Complaint which was
received by the Legal Division of the State Ethics Commission on April
29, 1998.
a. On July 2, 1998, the Investigative Division of the State Ethics
Commission and Donald Kannenberg entered into a Consent
Agreement regarding the subject matter of the State Ethics
Commission investigation which Consent Agreement was accepted
by the Commission by way of final adjudication of the
Commission, Order No. 1086.
12. On May 1, 1998, Giangrieco submitted a bill to the Apolacon Township
Board of Supervisors for the representation of Kannenberg in regard to
the State Ethics Commission Investigative Complaint.
Date Description of Work Hours
03/30/98 Telephone conference with Donald Kannenberg 0.25
04/02/98 Office conference with Kannenberg /Review
correspondence from Kannenberg /Review
correspondence from Atty. Aliano to Atty. Hittie 0.75
04/06/98 Draft letter to Atty. Hittie /Forward same to
Kannenberg to review and advise 1.0
04/08/98
04/09/98
Telephone conference with client 0.25
Facsimile of draft letter to Kannenberg to review and
advise finalization and mailing of letter to Atty. Hittie 0.50
Review letter from State Ethics Commission
Review complaint by State Ethics Commission
Office consultation with Kannenberg re: Answer and
New Matter /preparation of draft of Answer and
New Matter
04/28/98 Facsimile of draft Answer and New Matter to
Kannenberg
04/29/98 Finalization of Answer and New Matter /Correspondence
with Vincent J. Dopko /Service of same by certified
mailing 1.25
04/16/98
04/23/98
04/27/98
Rate Per Hour
0.25
0.75
2.25
04/30/98 Review facsimile from V. Dopko /Preparation, mailing
and facsimile of Formal Request for Hearing 1.00
Total Number of Hours 8.75
$
$87500
13. The following payment was made by the township to Giangrieco for his
representation of Donald Kannenberg regarding the State Ethics
Commission Investigative Complaint.
Kannenberq, 98- 062 -C2
Page 4
Check Date Amount of
Number of Check Check
2129 06/03/98 $875.00
14. The payment to Giangrieco was approved by the board of supervisors on
June 2, 1998.
a. The Giangrieco invoice was part of a listing of bills approved for
payment.
b. Kannenberg seconded the motion and participated in the 3 to 0
vote to approve the bill listings.
15. Kannenberg, in his capacity as a supervisor, signed the township check
made payable to Michael Giangrieco for the representation of Kannenberg
before the State Ethics Commission.
16. At the township meeting on August 4, 1998, Kannenberg made the
motion to accept the minutes of the meeting for June 2, 1998, in which
the bills were approved for payment which included the payment made
to Giangrieco.
17. On February 5, 1999, Michael J. Giangrieco, Esquire, on behalf of Donald
Kannenberg, submitted to Apolacon Township payment in the amount of
$875 representing the fee paid to Giangrieco.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Donald Kannenberg,
hereinafter Kannenberg, has been a public official subject to the provisions of the
Public Official and Employee Ethics Act ( "Ethics Act "), Act 9 of 1989, Pamphlet Law
26, 65 P.S. §401, g lq. /Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101, fit, seq.
The issue is whether Kannenberg violated Section 1103(a) as to the allegation
that he participated in actions of the Board of Supervisors to approve payments to the
Township Solicitor for performing private legal work on his (Kannenberg's) behalf.
Section 1103. Restricted activities.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. §1103(a).
Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee
is prohibited from engaging in conduct that constitutes a conflict of interest.
The term "conflict of interest" is defined under the Ethics Act as follows:
Section 1102. Definitions.
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received
Kannenberq, 98- 062 -C2
Page 5
65 Pa.C.S. §1102.
through his holding public office or employment for the
private pecuniary benefit of himself, a member of his
immediate family or a business with which he or a member
of his immediate family is associated. The term does not
include an action having a de minimis economic impact or
which affects to the same degree a class consisting of the
general public or a subclass consisting of an industry,
occupation or other group 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.
Section 1 103(a) of the Ethics Act prohibits a public official /public employee
from using 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, any member of his immediate family, or a
business with which he or a member of his immediate family is associated.
Having noted the issues and applicable law, we shall now summarize the
relevant facts.
Kannenberg has served as a Supervisor for Apolacon Township, Susquehanna
County, since January, 1988. Kannenberg was the subject of a State Ethics
Commission investigation from January, 1997 until March 4, 1998, when an
Investigative Complaint was issued to him. Attorney Charles Aliano did not represent
Kannenberg in the case, but as a favor wrote a letter on behalf of Kannenberg to the
Commission on March 24, 1998, requesting a 30 -day extension of time to respond to
the Investigative Complaint which extension was granted.
Kannenberg discussed the Investigative Complaint with Michael Giangrieco, the
Township Solicitor, on or about March 24, 1998. Based upon the view that the alleged
violation by Kannenberg had occurred while Kannenberg was a Supervisor, Giangrieco
advised that he could represent Kannenberg in the matter, if such representation would
be approved by a vote of the Board of Supervisors with Kannenberg abstaining.
Although Kannenberg abstained from the vote, he did not provide a signed disclosure
statement as to Giangrieco's representation regarding the case before this
Commission. The Board of Supervisor's decision to approve Giangrieco's
representation of Kannenberg before this Commission was based upon the advice
provided to Kannenberg by Giangrieco.
On April 9, 1998, Giangrieco advised by letter that he was representing
Kannenberg. The Legal Division of the Commission subsequently received Giangrieco's
Answer to the Investigative Complaint on April 29, 1998. On July 2, 1998 the
Investigative Division and Kannenberg entered into a Consent Agreement. Following
the review and approval of the Consent Agreement by this Commission, Kannenbera,
Order No. 1086 was issued.
On May 1, 1998 Giangrieco submitted a bill in the amount of $875 to the
Township Board of Supervisors for his representation of Kannenberg before this
Commission. The dates, nature of work, and hours billed are set forth in Finding 12.
On June 2, 1998, Kannenberg seconded a motion and voted to approve payment of
Giangrieco's invoice as part of a bill list, which payment was approved by a 3 -0 vote
of the Board of Supervisors. On June 3, 1998, the Township issued check number
2129 in the amount of $875 to Giangrieco, which check was signed by Kannenberg
Kannenbera, 98- 062 -C2
Page 6
in his capacity as a Supervisor. In addition, at an August 4, 1998 meeting of the Board
of Supervisors, Kannenberg made the motion to accept the minutes of the June 2,
1998 meeting, in which the bills, including the payment to Giangrieco, had been
approved.
On February 5, 1999, Giangrieco submitted payment on behalf of Kannenberg
to Apolacon Township in the amount of $875, as reimbursement to the Township.
Having summarized the above relevant facts, we must now determine whether
the actions of Kannenberg violated Section(s) 1 103(a) of the Ethics Act.
In applying Section 1103(a) of the Ethics Act to the instant matter, there was
a use of authority of office on the part of Kannenberg regarding the approval of the
Solicitor's bill which was submitted to the Township for payment of legal services in
representing Kannenberg before this Commission. Kannenberg seconded the motion
and voted to approve the payment of the Solicitor's invoice. Kannenberg as a
Supervisor also signed the check in payment to the Solicitor, as well as made the
motion to accept the minutes of the prior meeting in which he voted to approve that
bill. Such actions were uses of authority of office. Juliante, Order 809. Such uses of
authority of office resulted in a pecuniary benefit to Kannenberg in that he did not have
to pay for such representation from his own funds. The pecuniary benefit was private
because there is no authorization in law for paid legal representation as to that type
of case before this Commission. See, Messinger, Order 931, affirmed in part, reversed
in part; R.H. & T.W. v. State Ethics Commission, 673 A.2d 1004 (Pennsylvania
Commonwealth Court) 1996. Lastly, the private pecuniary benefit which amounted to
$875 inured to Kannenberg himself. Accordingly a technical violation of Section
1103(a) of the Ethics Act occurred when Kannenberg participated in actions of the
Board of Supervisors to approve payment to the Township Solicitor for legal
representation of Kannenberg before this Commission.
The parties have submitted a Consent Agreement together with a Stipulation of
Findings wherein it is proposed to resolve the case by finding a technical violation of
Section 1103(a) with no further action. Upon review, we believe that the Consent
Agreement is a fair and appropriate disposition of the case under the Ethics Act. We
approve the Consent Agreement. Given that Kannenberg has reimbursed $875 to
Apolacon Township, no further action will be taken in this matter.
IV. CONCLUSIONS OF LAW:
1. Donald Kannenberg, as a Township Supervisor in Apolacon Township, is a
public official subject to the provisions of Act 9 of 1989/Act 93 of 1998,
Chapter 11.
2. A technical violation of Section 1103(a) of the Ethics Act occurred when
Kannenberg participated in actions of the Board of Supervisors to approve
payment to the Township Solicitor of $875 for legal representation of
Kannenberg before this Commission.
In Re: Donald Kannenberg
File Docket: 98- 062 -C2
Date Decided: 2/26/99
Date Mailed: 3/10/99
ORDER NO. 1115
1. Donald Kannenberg technically violated Section 1103(a) of the Ethics Act when
he participated in actions of the Board of Supervisors to approve payment to the
Township Solicitor of $875 for legal representation of Kannenberg before this
Commission.
2. Given that Kannenberg has reimbursed the private pecuniary benefit of $875 to
Apolacon Township, no further action will be taken in this case which is closed.
BY THE COMMISSION,
oCumu6
DANEEN E. REESE, CHAIR