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HomeMy WebLinkAbout1128 PetersIn Re: Ralph E. Peters 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- 022 -C2 Order No.1 128 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 leg., 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 held. The record is complete. 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 gt 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. Peters, 97- 022 -C2 Page 2 I. ALLEGATION: That Ralph Peters, a public official in his capacity as a member of the Cumberland County Transportation Authority ( "CCTA "), violated Sections 1103(a), 1103(c), and 1103(f) of the Ethics Act 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 /or decisions of the CCTA Board to award a contract to a business with which he is associated or a business from which he was receiving compensation, to complete an independent cost analysis for a study. 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. (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. 65 Pa.C.S. §1103(c). (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 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 Peters, 97- 022 -C2 Page 3 court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. §1103(f). I1. FINDINGS: A. Pleadings 1. On March 24, 1997, the Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Ralph E. Peters 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 March 25, 1997. 3. The preliminary inquiry was completed within sixty days. 4. On May 23, 1997, a letter was forwarded to Ralph E. Peters, 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 487 031 806. b. The domestic return receipt bore the signature of Jane S. Peters, with a delivery date of May 24, 1997. 5. On September 8, 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 October 2, 1997, granting the ninety day extension. 7. On December 22, 1997, the Executive Director of the State Ethics Commission filed an application for a second ninety day extension of time to complete the investigation. 8. The Commission issued an order on January 14, 1998, granting the second ninety day extension. 9. Periodic notice letters were forwarded to Ralph Peters in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 10. The Investigative Complaint was mailed to the Respondent on May 15, 1998. 11. Ralph Peters served as a board member for the Cumberland County Transportation Authority (CCTA) from 1990 until 1995. a. Peters was appointed to the CCTA by the Cumberland County Commissioners. b. Peters served as Vice Chairman of the board from 1990 to 1995. Peters, 97- 022 -C2 Page 4 c. Peters was appointed to the Executive Committee in 1990. d. Peters was appointed Chairman of the Air Transportation Committee in 1990. e. Peters was appointed to the Study Management Committee in 1992. 12. From 1991 through 1995, Ralph Peters served as Chairman and CEO of Benatec Associates. a. Peters was formerly employed as President of Berger Associates which was incorporated on June 18, 1971, with the Pennsylvania Department of State. b. On July 1, 1982, an amendment was made to the Articles of Incorporation for Berger Associates changing the name to Benatec Associates. 1. Peters was President of the company at that time. c. In 1995, Peters held a 24% interest in Benatec Associates. 13. The nature of Benatec's business includes the planning and design of transportation matters, inventions, building and architecture. - 14. Articles of Incorporation confirmed that the CCTA was created by the Cumberland County Commissioners on March 16, 1990. a. The CCTA was formed by the county commissioners pursuant to the Municipal Authorities Act of 1945. 15. The purpose of the CCTA, as outlined in the Mission Statement, is as follows: a. To survey the general conditions of transportation in Cumberland County, including public and private providers, public, private and business passengers, air freight shippers, travel agencies, and available major transportation terminals and to report to the Board of Commissioners on the findings of such surveys with respect to present and future transportation needs. b. To monitor regional efforts to develop and improve services to the region; to advance the best interests of the citizens and businesses of Cumberland County in such regional efforts and, where appropriate, to participate in such regional efforts to acquire, develop or otherwise obtain a Cumberland County share in the local control of regional transportation facilities. c. To communicate and cooperate with State and Federal agencies having any jurisdiction in matters of transportation. d. To cooperate with and assist the Cumberland County Authority in promoting economic development in Cumberland County through improved transportation services. Peters, 97- 022 -C2 Page 5 • e. To cooperate with the local government officials, and business and civic organizations and community leaders of Cumberland County in identifying concerns and requirements in the transportation sector. 16. The CCTA enacted by -laws on March 28, 1990 which provide, in part: a. The business and property of the CCTA are to managed and controlled by the CCTA board. b. The board is to be composed of seven members appointed for staggered terms. c. The board is to meet on a monthly basis in Cumberland County. d. Special meetings of the board are held whenever called for by the chairman or not less than three members of the board. e. A majority of the board shall constitute a quorum for the transaction of business. f. The order of business at any regular meeting of the board is as follows: 1. Reading of the minutes. 2. Reports of committees. 3. Reports of officers. 4. Motions and resolutions 5. Miscellaneous business. 17. The powers and duties of • the CCTA board consist of general management and control of the business of the authority including: a. Appointing or hiring of agent and employees. b. Determine who shall be authorized to sign bonds, bills, checks, releases, contracts and other documents. c. Delegate any of the powers of the board to any officer or agent as deemed appropriate. d. Form committees to perform duties required to be executed. e. Election of Chairman, Vice Chairman, Secretary, Treasurer, Assistant Secretary and Assistant Treasurer, define duties and limits of authority of officers. f. Designation of depositories for funds or securities of the CCTA. g. Annually establish a budget for the ensuing calendar year. h. Prepare an annual report of the business and activities of the board. Peters, 97- 022 -C2 Page 6 j• i. Adopt rules and regulations for the use of CCTA facilities as the board may deem appropriate. Ensure that the accounts of the authority are authority are audited at least once a year. 18. 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. 19. The first individuals appointed board members to the CCTA and their terms of office are as follows: Name Larry Joyce Harry Snyder Anthony Ceddia Christopher Gulotta Joyce Zeigler William Hawkins Ralph Peters Term of Office 1 year (expires 12/31/90) 2 year (expires 12/31/91) 3 year (expires 12/31/92) 3 year (expires 12/31/92) 5 year (expires 12/31/94) 4 year (expires 12/31/93) 5 year. (to 12/31/94 and possibly beyond) 20. In 1991, the CCTA board considered conducting an airport study for the county. a. During CCTA meetings, the board members discussed the idea of an airport study. 21. The concept of a regional airport was discussed by CCTA board as follows: a. March 27. 1991: The Pennsylvania Department of Transportation suggested that the CCTA apply to the Federal Aviation Administration (FAA) for a grant to study the feasibility of an expanded role for the Carlisle Airport. b. April 24. 1991: Ralph Peters spoke to Charles Hostetter, Director of the Pennsylvania Department of Transportation Bureau of Aviation, and Larry Walsh, FAA, and they encouraged the CCTA to apply for a grant. 1. The CCTA board unanimously approved a motion to apply for a grant with Hawkins voting in favor of the motion. c. July 24. 1991: Ralph Peters met with representatives of the FAA regarding funding for the CCTA study and he was advised that it should be done in two phases. 1. An overview of the county's air transportation and a projection of the future demands which would include developing a model for the type of airport that would meet the projected demands over a twenty (20) year period. Peters, 97- 022 -C2 Page 7 2. A site review including existing airports in the county. d. November 27. 1991: Ralph Peters reported that the CCTA study was endorsed by PennDOT and would be considered by the FAA in March, 1992. e. March 25. 1992: The CCTA received a letter from the FAA indicating that 90% of the study funds ($90,000) had been allocated for the airport study and the remaining 10% of the funding would be requested from state and local organizations. 22. Ralph Peters was appointed to the Study Management Committee by the CCTA board for the Airport Study. a. The primary function of the committee was to hire a consultant to perform an airport study. 23. 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. 24. On June 16, 1992, the Study Management Committee of the CCTA held a meeting to discuss an airport study. a. The CCTA board members present were William Hawkins and Joyce Zeigler. b. The consultants present included representatives from Buchart Horn, LPA Group, Arthur Little, Inc., Air Tech and Edwards and Kelcey, Inc. 25. 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. 26. As the chairman of the Study Management Committee, William Hawkins sent Request for Proposals (RFP's) and Qualifications to firms interested in performing an airport study. Peters, 97- 022 -C2 Page 8 a. William Hawkins sent Request for Proposals and Qualifications to thirty -five companies. b. Buchart Horn was one of the companies sent an RFP. 27. The RFP's sent by Hawkins identified the broad purposes of the airport study and what was required of the successful bidder. a. Define and project potential air service demand for Cumberland County through the year 2020. b. Identify and analyze the current and future capacity of existing airports within the area including, but not limited to, Capital City, Carlisle and Shippensburg, Cumberland County; Chambersburg, Franklin County; and Hagerstown, Washington County (MD) to meet projected demand within the context of likely scenarios that might affect the commercial and general aviation transportation system serving Cumberland County. The consultant will rely on information from current master plans and Capital City Airport Renaissance Study, as well as data developed from the Susquehanna Valley Regional Airport Authority regional study. c. Identify development options, benefits, costs, and risks for expanded aviation facilities in Cumberland County. d. Investigate the role that Cumberland County and surrounding regional airports may serve to relieve capacity pressures on existing hubs and gateway airports. e. Explore the relationships between improved air service /air cargo and economic growth for Cumberland County. f. Project the economic impact of recommended alternatives on the future economy of the described area. Establish an overall schedule for additional facility development, if recommended. h. Develop an action plan and time - schedule for the completion of all the tasks enumerated above. 28. The following criteria was included in the Request for Proposals and Qualifications in evaluating a consultant's interest and qualifications in conducting an airport study: a. Capability to perform all aspects of project; b. Reputation of personal and professional integrity and competence; key personnel's professional background and caliber; c. Evidence that consultant has established and implemented an affirmative action program; d. Current workload and availability to begin study; g. Peters, 97- 022 -C2 Page 9 e. Recent experience in similar studies clearly defining consultants' past performance in both prime and subcontractor roles; f. Demonstrated ability to meet schedules and deadlines; g. Qualifications and experience of subcontractors; if any; h. Quality of projects previously undertaken; i. Familiarity with and proximity to the geographic location of the study; j. Demonstrated understanding of the project's potential problems; k. Degree of interest shown in undertaking the project; I. Experience in advising similar clients in carrying out public meetings required in the planning process. 29. At the June 24, 1992, meeting of the CCTA, William Hawkins reported that the Study Management Committee for the proposed county airport study had 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 b. Hawkins made a motion for the Study Management Committee to interview selected firms, identify the best candidate, and present it to the CCTA for their approval. Motion carried with Hawkins participating in the vote. c. A motion was approved for the Study Management Committee to select an independent firm to provide a cost estimate of the airport study. Peters was not present at this meeting. 30. The following firms submitted proposals for the CCTA Air Demand Study: a. Air Tech b. BTI Consultants c. Buchart Horn d. C &S Engineers e. Comsis f. LPA Group Peters, 97- 022 -C2 Page 10 31. On July 10, 1992, a short list was developed by the Study Management Committee on the firms that were being considered for the airport study. a. Air Tech b. Buchan Horn c. LPA Group 32. On July 22, 1992, the Study Management Committee held interviews with the three short listed firms. a. CCTA board members William Hawkins, Ralph Peters and Joyce Zeigler were present for the interviews. 33. 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 34. In conducting an airport study, the FAA requires that an independent cost analysis be performed which is used as an aide in developing the scope of work and /or a cost estimate of professional services. a. This independent cost analysis was used by CCTA for the airport study. 35. Following the June 24, 1992; CCTA board meeting, James Scheiner, President of Benatec Associates, was selected to perform the independent cost analysis on the CCTA airport study. a. There were no quotes or bids solicited for the cost analysis. b. The FAA required an independent cost analysis be conducted to be used as a guide in contract negotiations. c. The cost of the analysis, as quoted by Scheiner to CCTA, was $700. 36. Scheiner was selected because of a similar independent cost analysis Benatec previously completed for the Susquehanna Valley Regional Airport Authority (SVRAA). a. Ralph Peters, William Hawkins and Joyce Zeigler were CCTA appointees to the SVRAA and were familiar with the Benatec study. b. Zeigler suggested to the CCTA that Benatec be used for the cost analysis. 37. On July 27, 1992, James Scheiner submitted a bill in an amount of $700 to William Hawkins as Chairman of the Study Management Committee Peters, 97- 022 -C2 Page 11 for the CCTA in regard to an Air Service Demand Study independent cost analysis. a. The bill was signed and accepted by Joyce Zeigler on behalf of the CCTA. 38. At the July 27, 1992, meeting, Peters stated that he was going to donate the $700 payment to Benatec to the Tri- County United Way. 39. On July 28, 1992, Scheiner provided a written estimate to William Hawkins on the costs to perform an Air Service Demand Study for the CCTA. a. The estimated cost was $117,566. 40. On August 3, 1992, Barbara Smith, Controller for Benatec Associates, submitted a bill to the CCTA in care of William Hawkins in the amount of $700 for the cost of an Air Service Demand Study. a. On August 19, 1992, check no. 100303 from the general account for the county of Cumberland was paid to the order of Benatec Associates in the amount. of $700. 41. The CCTA board selected James Scheiner, President of Benatec Associates, to perform the independent cost analysis on the CCTA airport- study. a. The independent cost analysis can be used as a guide in contract negotiations. b. The cost of the analysis was $700. 42. Scheiner was selected because of the independent cost analysis he performed for SVRAA. 43. Minutes of the CCTA meeting for August 26, 1992, confirmed that a payment was approved to Benatec Associates for an airport study in the amount of $700. a. Ralph Peters was present for the meeting and approved the payment. 44. Records from Benatec Associates reflect a payment was made by Benatec Associates to the Tri- County United Way in the amount of $700 on September 24, 1992. a. Check no. 200753 from an account Benatec Associates had with the Pennsylvania National Bank was paid to the order of the Tri County United Way in the amount of $700 on September 24, 1992. 45. Ralph Peters is Chairman and CEO of Benatec Associates. a. Peters was aware that James Scheiner of Benatec Associates performed the independent cost analysis for the CCTA. Peters, 97- 022 -C2 Page 12 b. On August 26, 1992, Peters voted to approve a payment to Benatec Associates in the amount of $700 for the independent cost analysis. B. Testimony 46. Ralph E. Peters has been a member of the Cumberland County Transportation Authority (CCTA) since February, 1990. a. The CCTA Board in 1991 -92 considered the possibility of a regional airport in Cumberland County. b. When Scheiner of Benatec informed Peters that Scheiner would do a cost analysis for CCTA, Peters responded that Scheiner should not undertake the contract because Peters is on the CCTA Board. (1) Peters suggested to Scheiner to donate the fee for the cost analysis to the United Way. c. At the July, 1992 CCTA Board Meeting, Peters told the Board that because he was Chairman and CEO of Benatec, he had a conflict as to the cost analysis. (1) Because the cost analysis was already done, Peters stated that the fee would be donated to the United Way. (a) Benatec received the CCTA check for $700 in August. (b) Peters directed the Accounting Department of Benatec to send a check in the amount of $700 to United Way. d. Peters was not present at the June 24, 1992 CCTA Board Meeting. (1) The minutes reflect that some person would be selected to do the cost analysis. e. After Scheiner told Peters that Scheiner would do the cost analysis, Peters did not suggest foregoing the work but rather donating the fee (1) Peters did not consult with legal counsel prior to deciding to accept and then donate the cost analysis fee. • (2) Peters did not seek an advisory from the State Ethics Commission. f. At the August, 1992 Board Meeting of CCTA, Peters voted to approve bills including one from Benatec for $700 for the cost analysis. (1) CCTA issued a check to Benatec on September 24, 1992. (2) Benatec sent a check for $700 to United Way approximately one month later. g. Peters did not consider having Scheiner tear up the cost analysis. Peters, 97- 022 -C2 Page 13 C. Documents (1) Peters states that the fee for the cost analysis was an excellent value for CCTA. 47. Exhibit 1 is a photocopy of the minutes of CCTA Board Meeting for June 24, 1992. a. Peters was not present at the meeting. b. Motion by Snyder, second by Gulotta, to have an independent firm do a cost estimate. Motion carried with Joyce abstaining. 48. Exhibit 2 is a photocopy of the minutes of CCTA Board Meeting for July 29, 1992. a. Peters was present at the meeting. b. Peters advised that the $700 fee to Benatec for the analysis will be donated to Tri- County United Way. 49. Exhibit 3 is a photocopy of the minutes of CCTA Board Meeting for August 26, 1992. a. Peters was present at the meeting. b. The $700 fee to Benatec for the cost analysis was approved. (1) Peters did not abstain as to the approval for payment. III. DISCUSSION: At all times relevant to this matter, the Respondent, Ralph E. Peters, hereinafter Peters, 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, gt sew. /Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101, gt mod. The issue is whether Peters violated Sections 1103(a), 1 103(c), and 1103(f) as to the allegation that, as a member of the Cumberland County Transportation Authority ( "CCTA "), he participated in actions of the CCTA Board to award a contract to a business with which he is associated to complete an independent cost analysis for an airport study. Section 1103(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. 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) specifically 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 Peters, 97- 022 -C2 Page 14 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. Having noted the issues and applicable law, we shall now summarize the relevant facts. Peters served as a Board Member of CCTA from 1990 until approximately 1995. In a private capacity, Peters is Chairman and CEO of Benatec Associates (Benatec), a business which creates plans and designs in the transportation area. The CCTA was created by the Cumberland County Commissioners in 1990 for the purpose of surveying, monitoring, reporting, cooperating, and assisting as to transportation services in Cumberland County with the goal of improving such services to promote economic development. In 1991, the CCTA Board contemplated performing a county airport study. Peters was appointed by the CCTA Board to the Study Management Committee (Committee) which was charged with finding a consultant to perform the study. After the CCTA held an open forum and meetings to discuss the study, proposals were requested. Six firms submitted proposals. Following a review of the applicants, a short list of three of those firms was agreed upon by the Committee. Peters has no financial connection with any of those firms. The FAA requires an independent cost analysis as a prerequisite to conducting an airport study. No quotes or bids were solicited for the cost analysis contract. James Scheiner, the President of Benatec, stated that he could to do the cost analysis for $700. CCTA Board Member Zeigler suggested that Benatec be used for the cost analysis because Scheiner completed a similar independent cost analysis for the Susquehanna Valley Regional Airport Authority. Scheiner was selected to perform the cost analysis on June 24, 1992, the date of a CCTA Board meeting. Peters was not present at that meeting. On July 27, 1992, Scheiner submitted a bill in the amount of $700 to the Chairman of the Committee for performing the cost analysis. At the July 27, 1992 CCTA Board Meeting, Peters stated that he was going to donate the $700 payment that Benatec would receive to the Tri- County United Way. On August 3, 1992, the Controller of Benatec submitted a bill to CCTA in the amount of $700 for the cost analysis. At the August 26, 1992 Board Meeting of the CCTA, payment was approved to Benatec in the amount of $700. Peters, as a CCTA Board member, participated in the approval of the payment to Benatec. On September 24, 1992, records from Benatec reflect a $700 payment from Benatec to the Tri- County United Way. As a Member of the CCTA Board, Peters' involvement as to the independent cost analysis . consisted of his knowledge that Scheiner of Benatec would perform the service and his vote on August 26, 1992, to approve payment to Benatec in the amount of $700. Having summarized the above relevant facts, we shall now outline the arguments presented by the parties in their briefs. Peters argues that there is no violation of Section 1103(a) because there was no use of authority of office in that Peters took no part in awarding the contract and Peters, 97- 022 -C2 Page 15 there was no private pecuniary benefit because he pledged the $700 to the United Way. No violation of Section 1 103(c) is asserted because there is neither a private pecuniary benefit nor an understanding on the part of Peters relative to the contract. Lastly, Peters argues that there is no violation of Section 1 103(f) of the Ethics Act on the theory that the contract had a $0 value given that the $700 was a pass through, via Benatec, from CCTA to the United Way. The Investigative Division asserts violations of all three Sections of the Ethics Act plus restitution of $700 to CCTA based upon the following arguments. Since Peters knew of the situation regarding the contract, chose to go forward with the contract and voted to approve payment to Benatec, followed by the donation of the money, such action was a use of authority of office. There was a private pecuniary benefit of the $700 payment on the contract which was not eliminated by the subsequent donation to charity as per the holding in Richardson, Opinion 93 -006. Such a use of authority of office with the resultant private pecuniary benefit constitutes a violation of Section 1103(a). As to Section 1103(c), a violation occurred because Peters accepted the contract and voted to approve payment based upon the understanding that he would donate the money to charity. Finally, as to Section 1103(f), a violation occurred on the basis that the contract was over $500 and was not awarded through an open and public process as required by the Ethics Act. We must now determine whether the actions of Peters violated Sections 1103(a), 1103(c), and 1103(f) of the Ethics Act. In applying the provisions of Section 1103(a) of Act 93 of 1998, we do not find - a violation as to the award of the contract. One of the required elements for a conflict is a use of authority of office. It has been held that without action on the part of a public official, there is no use of authority of office and no violation of the Ethics Act. Sge, McGuire and Marchitello v. SEC, 657 A.2d 1346 (1995). The action to award the independent cost analysis to Scheiner of Benatec was done on June 24, 1992, the date of a CCTA Board Meeting at which Peters was absent. Further, there is no showing that there was any action by Peters behind the scenes as to the award of the cost analysis to Benatec. The record reflects that it was Board Member Zeigler who suggested that Scheiner of Benatec be used for the cost analysis. Accordingly, since there was no use of authority of office by Peters as to the award of the independent cost analysis, there is no violation of Section 1103(a). We are aware of the fact that Peters as a CCTA Board member voted at the August, 1992 CCTA Board Meeting to approve payment to Benatec in the amount of $700. However, the narrow issue before us is the allegation that Peters violated Section 1103(a) regarding the award of the contract to a business with which he is associated and on that issue, the record is clear that there was no use of authority of office by Peters. As to Section 1103(c) of the Ethics Act, this provision restricts 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 or public employee would be influenced thereby. This provision o f the Ethics Act is in general a bribery provision. See. Zwick, Order 1062. The proffered theory for a violation by the Investigative Division is that Peters accepted the contract payment based upon the understanding that he would donate the money to charity which influenced his vote to approve the payment of $700. This does not constitute a violation of Section 1103(c). Peters stated that the $700 payment to Benatec would be donated to charity. Peters voted to approve the $700 owed to Benatec. However, the evidence does not establish an understanding that is Peters, 97- 022 -C2 Page 16 prohibited by Section 1103(c) because the vote to approve the payment by Peters was not linked to his donation of the payment to charity. Accordingly, Peters did not violate Section 1103(c) regarding the award of the independent study contract from CCTA to Benatec, a business with which he is associated, in that there is no evidence to support that particular allegation. Turning to Section 1103(f) of the Ethics Act, this section of the Ethics Act allows a public official /public employee, spouse or child, or business with which associated, to contract with his or her governmental body but imposes certain restrictions on the contracting. The Ethics Act requires that if the contract is $500 or more, the process must be an open and public one. In this case, the CCTA Board at the suggestion of Member Zeigler awarded a $700 contract to Benatec Associates for the independent cost study. Although Peters was not present when this occurred, Benatec, a business with which Peters is associated, was awarded a contract for $700. That contract should have been, but was not, awarded through an open and public process. The fact that the $700 was subsequently given to Benatec to charity cannot retroactively transform the contract to $0 or negate the contract itself. See, Richardson, supra. Accordingly, a violation of Section 1103(f) occurred when Benatec, a business with which Peters is associated, entered into a contract with CCTA which contract was $500 or more and was not awarded through an open and public process. As to the case, we will take no further action. In reviewing this record it is clear that Peters had no motivation or intent to violate the Ethics Act. We are not saying that such is a requirement to establish a violation, but rather, through unfortunate circumstances, Peters found himself in a situation where he transgressed the Ethics - Act. Although the action by Peters to have Benatec donate the $700 independent cost study contract fee to the Tri- County United Way, after the payment was received from CCTA, is insufficient legally to retroactively undo the transgression of the Ethics Act, it does demonstrate to us that there was never any desire by Peters to use public office for personal financial gain. This case is closed. IV. CONCLUSIONS OF LAW: 1. Ralph E. Peters, as a member of the Cumberland County Transportation Authority, was a public official subject to the provisions of Act 9 of 1989/Act 93 of 1998, Chapter 11. 2. Peters did not violate Section 1103(a) of the Ethics Act as to the award of a contract for a cost analysis of an airport study project by the CCTA Board to a business with which Peters is associated in that he did not use the authority of office as to the award of the contract. 3. Peters did not violate Section 1103(c) of the Ethics Act as to the award of a contract by the CCTA Board to a business with which he is associated in that there is no evidence to show that any improper understanding existed. 4. Peters violated Section 1103(f) of the Ethics Act when a business with which he is associated contracted with CCTA where the contract was $500 or more and was not awarded through an open and public process. In Re: Ralph E. Peters File Docket, 97- 022 -C2 Date Decided: 6/1/99 Date Mailed: 6/10/99 ORDER NO. 1128 1. Ralph E. Peters, as a member of the Cumberland County Transportation Authority, did not violate Section 1103(a) of the Ethics Act as to the award of a contract for the cost analysis of an airport study project by the CCTA Board to a business with which Peters is associated in that he did not use the authority of office as to the award of the contract. 2. Peters did not violate Section 1103(c) of the Ethics Act as to the award of a contract by the CCTA Board to a business with which he is associated in that there is no evidence to show that any improper understanding existed. 3. Peters violated Section 1103(f) of the Ethics Act when a business with which he is associated contracted with CCTA where the contract was $500 or more and was not awarded through an open and public process. BY THE COMMISSION, ogitax.)6 &4 DANEEN E. REESE, CHAIR Commissioner John J. Bolger did not participate in the decision of this matter.