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HomeMy WebLinkAbout1124 HawkinsIn Re: William Hawkins 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 97- 023 -C2 Order No.1 124 6/1/99 6/10/99 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 ems., 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 filed and a hearing was waived. 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11, Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. 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 Chapter 11 of Act 93 of 1998. 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. Hawkins, 97- 023 -C2 Page 2 I. ALLEGATION: That William Hawkins, a public official /public employee, in his capacity as a member of the Cumberland County Transportation Authority (CCTA) 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 himself and /or a business with which he is associated by participating in actions, discussions and decisions of the CCTA resulting in the awarding of a contract to a business to do a study for the CCTA at a time when he was being compensated by that business; and when the contract with Buchan Horn was awarded without an open and public process and when he failed to file SFI's for the 1995 calendar year. 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). 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 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. 65 Pa.C.S. §1102. 65 Pa.C.S. §1103(c). (c) Accepting improper influence. —No public official, public employee or nominee or candidate for public office shall solicit or accept, anything of monetary value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding of that public official, public employee or nominee that the vote, official action, or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. (f) Contract. —No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is Hawkins, 97- 023 -C2 Page 3 65 Pa.C.S. §1103(f). associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. Section 1104. Statement of financial interests required to be filed. (a) Public official or public employee. - -Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part-time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. §1104(a). II. FINDINGS: 1. William Hawkins served as a board member for the Cumberland County Transportation Authority (CCTA) from 1990 through 1996. a. Hawkins was appointed to the CCTA by the Cumberland County Commissioners. b. Hawkins served as Board Secretary during his service on the board. c. Hawkins was appointed to the Air Transportation Committee in 1990. d. Hawkins was appointed Chairman of the Study Management Committee in 1992. Hawkins, 97- 023 -C2 Page 4 2. William Hawkins is the president and owner of a lobbying firm, W.A. Hawkins Associates. a. Hawkins' occupation is a Government and Corporate Affairs Consultant. 3. William Hawkins is the president and owner of a consulting firm, W.A. Hawkins Associates. a. Hawkins filed registration statements with the Secretary of the Senate which indicated he was employed or engaged for compensation, or would make expenditures or incur obligations for businesses whose interest he was representing. 4. The CCTA has been in existence since March 1990. a. Articles of Incorporation were filed on March 16, 1990. b. The CCTA was formed by the county commissioners, pursuant to the Municipal Authorities Act of 1945. 5. The CCTA enacted by -laws on March 28, 1990, which provide, in part: a. The business and property of the CCTA are to be managed and controlled by the CCTA board. b. The board is to be composed of seven members appointed for staggered terms by the county commissioners. c. The board is to meet on a monthly basis in Cumberland County. 6. The powers and duties of the CCTA board consist of general management and control of the business of the authority. 7. The officers of the CCTA board include a chairman, vice chairman, treasurer, secretary, assistant secretary and an assistant treasurer. a. Officers shall be elected at the January meeting of the board held each year and succeeding until their respective successors are duly elected and qualified. 8. William Hawkins was appointed to the CCTA board in December 1989 to a four year term. 9. In 1991, the CCTA board considered conducting an airport study for the county. 10. The concept of a regional airport was discussed by the CCTA board during the period 03/27/91 until 03/25/92. 11. On March 25, 1992, the CCTA formed a Study Management Committee with a primary function to select a consultant to perform an airport study. a. William Hawkins was appointed chairman of the Study Management Committee at the CCTA board meeting on March 25, 1992. b. Other members appointed were Ralph Peters and Joyce Zeigler. Hawkins, 97- 023 -C2 Page 5 12. Prior to seeking written proposals from any interested consultants, the CCTA held an open forum on June 16, 1992. a. Any consultants interested in attending the open forum discussion were requested to notify William Hawkins. 13. On June 16, 1992, Hawkins participated in a Study Management Committee meeting to discuss the airport study. a. The other CCTA board member present was Joyce Zeigler. b. The consultants present included representatives from Buchart. Horn, LPA Group, Arthur Little, Inc., Air Tech and Edwards and Kelcey, Inc. 14. At the June 16, 1992, Study Management Committee meeting, William Hawkins identified the following criteria indicated in the request for proposal and qualifications, as being particularly important to the Study Management Committee in choosing a consultant: a. Capability of performing all aspects of project. b. Recent experience in similar studies clearly defining consultants' past performance in both prime and subcontractors' roles. c. Familiarity with the proximity to the geographic location of the study. d. Demonstrated understanding of the project's potential problems. e. Experience in advising similar clients in carrying out public meetings required in the planning process. 15. As the chairman of the Study Management Committee, William Hawkins directed that Request for Proposals (RFP's) and Qualifications to be sent to firms interested in performing an airport study. a. William Hawkins sent Request for Proposals and Qualifications to thirty - five companies. b. Buchart Horn was one of the companies sent an RFP. 16. The RFP's sent by Hawkins identified the broad purposes of the airport study and what was required of the successful bidder. 17. At the June 24, 1992, meeting of the CCTA, William Hawkins reported that the Study Management Committee for the proposed county airport study developed a scope of work which had been mailed to thirty -five (35) consultants and a pre - proposal conference was held on June 16, 1992. a. Hawkins listed the timetable for the consultant selection as follows: 1. July 7 Proposals due 2. July 14 - Short list developed 3. July 22 - Interviews and consultant selection Hawkins, 97- 023 -C2 Page 6 c. A motion was approved for the Study Management Committee to select an independent firm to provide a cost estimate of the airport study. Hawkins participated in approving the motion. 18. The following firms submitted proposals for the CCTA Air Demand Study: a. b. c. d. e. f. Two of the five consultants who attended the pre - proposal conference did not submit proposals. Likewise, three of the six consultants submitted proposals even though they didn't attend the pre - proposal meeting. 19. On July 10, 1992, a short list was developed by the Study Management Committee of the firms being considered for the airport study. a. b. c. b. Hawkins made a motion for the Study Management Committee to interview selected firms, rank the candidates, and present the slate to the CCTA for their approval. Motion carried with Hawkins participating in the vote. Air Tech BTI Consultants Buch Horn C &S Engineers Comsis LPA Group Included in the short list were Air Tech, Buchart Horn and LPA Group. The short list was determined after a review of the proposals by Study Management Committee Members Zeigler and Peters. Hawkins was present for the review. 20. By July 10, 1992, board member Zeigler was aware that Chairman Hawkins represented Buchart Horn in matters not related to the CCTA. a. Hawkins participated in the meeting but did not evaluate or tabulate the forms submitted by the consultants. 21. The fact that Hawkins had recused himself was never entered in the records of CCTA or discussed with the full board. 22. As chairman of the Study Management Committee, William Hawkins was involved in the process of determining the scope of the study, reviewing the proposals submitted including being present for interviews of the firms. 23. On July 22, 1992, Hawkins participated in the Study Management Committee interviews with the three short listed firms. a. As chairman of the committee, Hawkins conducted the interviews and posed questions to the applicants. Hawkins, 97- 023 -C2 Page 7 24. The short listed firms were ranked as follows by the Study Management Committee: a. Buchart Horn b. Airport Technology and Planning Groups, Inc. c. LPA Group d. The final ranking of Buchart Horn as the top ranked firm was determined after the July 22, 1992, interviews by the Study Management Committee. 25. On July 23, 1992, the Study Management Committee ranked Buchart Horn as the finalist to prepare the CCTA airport study. a. Hawkins did not participate. 26 During the CCTA meeting of July 29, 1992, William Hawkins reported that the Study Management Committee had short listed three firms and Buchart Horn was chosen as the finalist to begin contract negotiations. a. Hawkins made a motion that the CCTA board concur wit the Study Management Committee's ranking of the three firms in which Buchart Horn was ranked first, and have the CCTA's approval to begin negotiations with the ranked consultants. The motion was seconded by Peters and passed by a 4 to 1 vote with Hawkins voting with the majority. 27. During the CCTA meeting for August 26, 1992, Buchart Horn was selected to perform the CCTA airport study. a. Hawkins was present for the meeting. b. No vote was taken to formally approve Buchart Horn. c. No vote was taken because the Study Management Committee had negotiated and agreed upon a contract price with Buchart Horn, the top ranked company. 28. The Study Management Committee, which included Hawkins, Peters and Zeigler, negotiated with Buchart Horn to perform the airport study at a cost of $124,200. 29. On November 19, 1992, Hawkins participated in a meeting with members of the CCTA and Buchart Horn. a. Ralph Peters was to be the CCTA liaison with Buchart Horn and all communications were to be sent to him for action and distribution because Chairman Hawkins had recused himself. b. Hawkins had questions on how services would be handled by Buchart Horn beyond the contract scope. c. The meeting occurred prior to a contract being entered into between CCTA and Buchart Horn. Hawkins, 97- 023 -C2 Page 8 30. At the time he was serving on the CCTA Board, William Hawkins was serving as a registered lobbyist for Buchan Horn. a. Hawkins had a contractual agreement with Buchart Horn as of May 16, 1990. b. On May 16, 1990, William Hawkins filed notice with the Secretary of the Senate that as a registered lobbyist, he was representing Buchan Horn, Incorporated, (Buchan Horn) for an indefinite duration of employment. c. On February 19, 1992, William Hawkins submitted a sworn affidavit to the Secretary of the Senate stating he was employed or engaged for compensation, or would make expenditures to incur obligations, and lobby for the interests of various firms, one of which was Buchart Horn. 31. Hawkins' duties as a lobbyist for Buchan Horn were identified in a letter to Peta Richkus, Vice President of Buchart Horn, on May 16, 1990. a. OBJECTIVE: To provide Buchart Horn with an awareness of planned projects in which the company could participate and to provide Buchan Horn with an opportunity to establish a relationship with key decision makers such that will result in additional business opportunities. b. METHOD: To utilize contacts and existing relationships with selected county and municipal officials to provide introductions, information and access for Buchart Horn personnel as designate. c. FOCUS: Initial efforts will be directed to the counties of Delaware and Montgomery, municipalities and municipal authorities therein. Buchart Horn will remain open to other opportunities which may appear throughout the SE counties. d. REPORTING: Working with the direction of Peta N. Richkus, I'II provide a briefing paper on planned projects every two weeks, along with other relevant information, where an "introductory" meeting, lunch, etc., is planned. In addition, I'II submit a monthly report showing all activity, including time spent, contacts made, results of contacts and planned follow -up. e. AUTHORITY: While I will have neither authority nor responsibility to bind the firm or otherwise represent Buchart Horn in an assignment, • I will remain available to assist in maintaining an effective relationship with the prospect. f. Hawkins' duties, as a lobbyist for Buchart Horn, have remained the same since 1990. 32. Hawkins has paid a monthly retainer fee for serving as a lobbyist for Buchart Horn from 1990 until 1998. 33. William Hawkins was the only registered lobbyist in the state of Pennsylvania for Buchart Horn in 1992. 34. As part of his agreement with Buchart Horn, Hawkins provided monthly activity reports to Peta Richkus, vice president of Buchart Horn, which report delineates Hawkins' activities on behalf of Buchart-Horn. Hawkins, 97- 023 -C2 Page 9 35. Between April 27, 1992, and April 26, 1995, Hawkins specifically listed 15 meetings with identified Cumberland County and CCTA officials on business related to the CCTA Airport Study as part of the monthly activity reports provided to Buchart-Horn. 36. During the CCTA board meeting of August 25, 1993, Hawkins expressed concerns that Buchart Horn was not being paid on time for the air demand study and the timing of the federal budgetary process. 37. On three occasions between February 23, 1994, and June 16, 1995, Hawkins voted, in unanimous votes, to approve various payments to Buchart-Horn for services rendered in the course of the airport study. 38. During the CCTA meetings for July 28, 1993, August 25, 1993, and December 15, 1993, the board members discussed payments to Buchart Horn. a. Hawkins approved the minutes of those meetings. 39. William Hawkins failed to file a Statement of Financial Interests with the CCTA for the 1995 calendar year because he had never received the form from Cumberland County. 40. During the 1995 calendar year, William Hawkins filed a Statement of Financial Interests with the State Ethics Commission. a. Hawkins' filing was as a member of the Unemployment Compensation Board of Review. 41. When Hawkins was advised as part of this investigation that he had not filed a Statement of Financial Interests for 1995, he secured a statement and filed it with the State Ethics Commission. III. DISCUSSION: At all times relevant to this matter, the Respondent, William Hawkins, hereinafter Hawkins, 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, at seq. /Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101, sue. The issue is whether Hawkins violated Sections 1103(a), 1103(c), 1103(f) and 1104(a) of the Ethics Act as to the allegations that he used the authority of his office for the private pecuniary benefit of himself or a business with which he is associated by participating in actions of the CCTA resulting in the award of a contract to a business to do a study for the CCTA at a time when he was being compensated by that business; when the contract with that business was awarded without an open and public process; and when he failed to file an SFI for the 1995 calendar year. 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. Hawkins, 97- 023 -C2 Page 10 Section 1103(c) of the Ethics Act provides in part that a public official /public employee shall not solicit or accept anything of monetary value based upon any understanding that his vote, official action or judgment would be influenced thereby. Section 1103(f) provides in part that no public official /public employee or spouse or child or business with which he or the spouse or child is associated may enter into a contract with his governmental body valued at five hundred dollars or more or any subcontract valued at five hundred dollars or more with any person who has been awarded a contract with the governmental body with which the public official /public employee is associated unless the contract is awarded through an open and public process including prior public notice and subsequent public disclosure. Finally, Section 1104(a) of the Ethics Act requires that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Having noted the issues and applicable law, we shall now summarize the relevant facts. Hawkins served as a Board Member of the Cumberland County Transportation Authority (CCTA) from 1990 through 1996. In a private capacity, Hawkins is the president and owner of a lobbying /consulting firm, W.A. Hawkins Associates. In 1991, the CCTA Board contemplated performing a county airport study. Hawkins was appointed to a Study Management Committee (Committee) which was charged with finding a consultant to perform the study. After the CCTA held an open forum to discuss the study, proposals were requested by the Committee. Six firms submitted proposals. Following a review of the applicants by the three .Committee members, a short list of three of those firms was agreed upon by the Committee: Air Tech, Buchart Horn, and LPA Group. As Committee Chair, Hawkins was involved in the process of determining the scope of the study, the review of the proposals submitted and the interviews of the three firms. Without the participation of Hawkins, the Committee ranked Buchart Horn as the top candidate of the three firms. At a July, 1992 CCTA Board meeting, Hawkins made a motion and voted with the majority to adopt the Committee ranking of the three firms with Buchart Horn as number one in ranking. Hawkins was present at the CCTA Board meeting in August, 1992, at which Buchart Horn was selected to perform the airport study. No formal vote was taken because the Committee had already negotiated and agreed on a contract price with Buchart Horn of $124,200. At a November, 1992, Board meeting, it was decided that Peters would be the CCTA liaison for Buchart Horn because Hawkins recused himself. At that time Hawkins was acting as a registered lobbyist for Buchart Horn as per a contract which began in 1990. One of the functions of Hawkins as a lobbyist for Buchart Horn was to apprise his client of planned projects and opportunities to establish relationships to create additional business opportunities. Hawkins was the only registered lobbyist on retainer for Buchart Horn in Pennsylvania in 1992. During the August, 1992 CCTA Board meeting, Hawkins raised a concern that Buchart Horn was not being paid on time for the airport study. In addition, Hawkins voted at CCTA Board meetings to approve various payments to Buchart Horn. Hawkins, 97- 023 -C2 Page 11 Lastly, Hawkins failed to file an SFI for the calendar year 1995 but did so after he received notice of this investigation. Having summarized the above relevant facts, we must now determine whether the actions of Hawkins violated the above quoted provisions of the Ethics Act. As to Section 1 103(a) of the Ethics Act, it is clear that there was a use of authority of office on the part of Hawkins. See, Juliante, Order 809. But for the fact that Hawkins was a member of the Committee and CCTA, he could not have participated in the process leading up to the selection of Buchart Horn for the airport study contract. The private pecuniary benefit inured to Buchart Horn, a business client of Hawkins. Hence, Hawkins violated Section 1103(a) when he used the authority of office to obtain a private pecuniary benefit for Buchart Horn by participating in the process leading up to the selection of that firm to conduct an airport study. See, Schubenski, Order 1066. As to Section 1 103(c) of the Ethics Act, we find no violation of this provision which prohibits a public official /public employee from soliciting or accepting anything of value based upon an understanding that the vote, official action, or judgment of the public official /public employee would be influenced thereby. In this case there is no evidence to establish any type of improper understanding. Accordingly, Hawkins did not violate Section 1 103(c) regarding the selection of Buchart Horn to conduct an airport study for CCTA, based upon an insufficiency of evidence. Turning to Section 1103(f) of the Ethics Act, a contract was awarded by CCTA to Buchart Horn. The contract exceeded the $500 threshold of Section 1103(f) of the Ethics Act and was awarded through an open and public process. In addition, Buchart Horn is not a business with which Hawkins is associated as that term is defined under the Ethics Act. Hence, Hawkins did not violate Section 1103(f) of the Ethics Act as to the award of a contract of $500 or more to Buchart Horn, because the firm is not a business with which Hawkins is associated and because the contract was awarded through an open and public process. The last section of the allegation concerns the SFI for the calendar year 1995. In that the Findings reflect that Hawkins has now filed the SFI and that the Investigative Division is no longer prosecuting this aspect of the case, we believe that this particular issue has been concluded. The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein it is proposed to resolve the case by finding violations of Section 1103(a), no violations of Sections 1103(c) and 1103(f), and a payment of $6,000 by Hawkins through this Commission to CCTA. Accordingly, Hawkins is directed to make payment of $6,000 in a timely manner through this Commission to CCTA. Compliance with the foregoing will result in the closing of this case with no further action. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Hawkins, as a Board Member of the Cumberland County Transportation Authority, was a public official subject to the provisions of Act 9 of 1989/Act 93 of 1998, 65 Pa.C.S. 2. Hawkins violated Section 1103(a) of the Ethics Act when he participated in the process leading up to the selection of Buchart Horn, a firm with which he had business relationship, as the contractor for an airport study for the Cumberland County Transportation Authority. Hawkins, 97- 023 -C2 Page 12 3. Hawkins did not violate Section 1103(c) of the Ethics Act as to the selection of Buchart Horn to conduct an airport study based upon an insufficiency of evidence. 4. Hawkins did not violate Section 1103(f) of the Ethics Act as to the contract of CCTA to Buchart Horn to conduct an airport study in that the firm is not a business with which Hawkins is associated and the contract was awarded through an open and public process. In Re: William Hawkins File Docket:. 97- 023 -C2 . Date Decided: 6/1/99 Date Mailed: 6/10/99 ORDER NO. 1124 1. Hawkins, as a Board Member of the Cumberland County Transportation Authority (CCTA), violated Section 1103(a) of the Ethics Act when he participated in the process leading up to the selection of Buchan Horn, a firm with which he had business relationship, as the contractor for an airport study for the Cumberland County Transportation Authority. 2. Hawkins did not violate Section 1103(c) of the Ethics Act as to the selection of Buchart Horn to conduct an airport study based upon an insufficiency of evidence. 3. Hawkins did not violate Section 1103(f) of the Ethics Act as to the contract of CCTA to Buchart Horn to conduct an airport study in that the firm is not a business with which Hawkins is associated and the contract was awarded through an open and public process. 4. As per the consent agreement of the parties, Hawkins is directed to make payment of $6,000 in a timely manner through this Commission to CCTA. a. Compliance with the foregoing will result in the closing of this case with no further action. b. Noncompliance will result in the institution of an order enforcement action. BY THE COMMISSION, aYmtuAu E etiAL DANEEN E. REESE, CHAIR