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HomeMy WebLinkAbout1115 KannenbergIn Re: Donald Kannenberg r 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