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HomeMy WebLinkAbout806 RankinIn re: Richard Rankin STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: 89 -018 -C : Date Decided: July 12, 1991 : Date Mailed: July 16, 1991 Before: Robert W. Brown, Chair Dennis C. Harrington, Vice Chair James M. Howley Daneen E. Reese Roy W. Wilt Austin M. Lee The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, No. 170 of 1978, P.L. 883. Written notice, of the specific allegation(s) was served at the commencement of the investigation. A Findings Report was issued and served, upon completion of the investigation, which constituted the Complaint by the Investigation Division. An Answer was filed and a hearing was waived. The record is complete. This adjudication of the Commission is hereby issued which sets forth the individual Allegations, Findings of Fact, Discussion, Conclusions of Law and Order. This adjudication is final and will be made available as a public document fifteen days after issuance. However, reconsideration may be requested which will defer public release of this adjudication pending action on the request by the Commission. A request for reconsideration, however, does not affect the finality of this adjudication. A reconsideration request must be received at this Commission within fifteen days of issuance and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code 52.38. The files in this case will remain confidential in accordance with Section 8(a) of Act 170 of 1978 during the fifteen day period and no one unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude discussing this case with an attorney at law. 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, 65 P.S. 409(e). I. ALLEGATION: That you, a Supervisor for Limestone Township, Clarion County, violated the following provisions of the State Ethics At (Act 170 of 1978), when you used your position to obtain business as private contractor to construct a road and then used your position to withhold approval of the road until you were paid as a private contractor: II. FINDINGS: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 5403(a). Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. §403(b). 1. Richard C. Rankin serves as a Limestone Township Supervisor. a. He has served in this position for approximately seventeen (17) years. b. His term of office will expire on December 31, 1991. He has not sought re- election. 2. Richard C. Rankin is a Principle in Rankin & Son, Excavating, R.D. #1, Fairmount City, Pennsylvania. Rankin, 89. -018 -C Page 3 a. Rankin & Son is engaged in excavating and construction type activities. b. Rankin has been in the excavating business since 1979. 3. Lew Maul was an individual with certain property located in Limestone Township. 4. In 1986, Lew Maul was interested in having a portion of a township road, number 523, relocated. a. This road traversed a 175 acre farm owned by Maul. b. The road would be moved to another part of the farm further from the dwelling situated thereon. 5. Minutes of the Limestone Township Supervisor's meetings indicated that on May 6, 1986, Lew Maul discussed the possibility of relocating a portion of township road, number 523, with the supervisors. a. Supervisors Richard Rankin, James Henry and Thomas Aaron were present. 6. On or about June 3, 1986, Lew Maul filed a petition with the Limestone Township Supervisors for permission to re- locate township road, number 523, to a different location. 7. On June 24, 1986, an agreement was executed between Limestone Township and Lew Maul whereby: a. Lew Maul agrees to assume all costs associated with the relocation of township road, number 523. b. Lew Maul agrees that the new road will be constructed in accord with certain specifications. c. The township, upon completion of the new road, agrees to vacate the prior road upon payment of all costs associated with the relocation. d. Lew Maul agrees to convey a right -of -way to the township for the new road. e. The agreement is signed by Lew Maul and Township Supervisors, Richard Rankin, H. Thomas Aaron and Jacob D. Henry and Secretary Robert Stahlman. Rankin, 89 -018 -C Page 4 8. During the May 1986 meeting of the township supervisors, when the road relocation was first discussed, Mr. Rankin and Mr. Maul discussed the possibility of Rankin submitting a bid on the road construction project. 9. On or about June 26, 1986, two days after the execution of the agreement between the township and Lew Maul, Richard Rankin and Mr. Maul entered into an agreement whereby Rankin & Son Excavating would perform the road construction. 10. The road construction was subsequently completed by Richard Rankin. 11. A fee dispute arose between Richard Rankin and Lew Maul regarding the amount of money to be paid to Mr. Rankin by Mr. Maul for the construction services that were rendered. 12. Mr. Maul contended that: a. Mr. Rankin agreed to do the project for $3,000. b. During the project, the parties agreed that Mr. Rankin was allowed to remove topsoil from the site. c. In return, Mr. Rankin agreed to reduce the $3,000 cost by an amount equal to $50.00 per truckload of topsoil removal. d. Mr. Rankin removed 38 truckloads of topsoil, and the fee should have been reduced by that amount. 13. Mr. Rankin contended that: a. The figure of $3,000 for the project was only an approximate estimate based upon the assumption that only 8 inches of topsoil would have to be removed during construction. b. It was agreed that the $3,000 payment would be reduced by $45.00 for each load of topsoil removed less the cost of removal and hauling. c. Twenty -nine (29) loads of topsoil were removed. d. Additional costs were incurred by Mr. Rankin, because 36 inches of topsoil had to be removed. e. The actual cost of the project was $6,216.00 less $1,305.00 (29 loads of topsoil at $45.00 per load). Rankin, 89 -018 -C Page 5 f. The $3,500 was a compromise figure. 14. Mr. Maul refused to pay the $3,500 to Mr. Rankin. 15. In order to complete the relocation of township road, number 523, the Limestone Township Supervisors were required to pass an ordinance authorizing such relocation through the filing of a petition in the County Court of Common Pleas. 16. On October 3, 1986, the Limestone Township supervisors met to consider such an ordinance. 17. Minutes of the Limestone Township Supervisors meeting for October 3, 1986 indicate the following: Present: Richard Rankin, James Henry, Thomas Aaron Mr. Pope read the proposed Township Ordinance 13 -86 which he had prepared and advertised. After the reading, H. T. Aaron made a motion to adopt the ordinance, and it was seconded by J. D. Henry, with no discussion. A vote was called for by the solicitor. The motion received no affirmative votes. A lengthy discussion followed between Lew Maul, who was present, and the supervisors and the solicitor trying to resolve problems relative to adopting the Ordinance 13 -86. Hilton Reed was also present. A motion was made by H. T. Aaron to retract the original motion. Retraction of the seconding was made by J. D. Henry. More discussion of the matter followed, and after what appeared to a be resolution of the problems, a motion was made to adopt Ordinance 13 -86 by H. T. Aaron and seconded by J. D. Henry. The Chair called for a vote which passed unanimously. 18. During the meeting of October 3, 1986, Mr. Rankin made a comment that he should be paid first before the consideration of the ordinance. 19. Kent Pope, the Township Solicitor, was concerned that if the township took over the road prior to payment of the bill, the township could be subject to a mechanics lien if Mr. Rankin sued. a. Rankin did not advise Pope or publicly state that he would sue the township. 20. Mr. Maul offered to place $3,500 in escrow with the Rankin, 89 -018 -C Page 6 solicitor pending resolution of the fee dispute. a. This offer was refused by Township Solicitor, Kent Pope. 21. Mr. Maul, subsequently, left the meeting to discuss the matter with another individual and when he returned he paid Mr. Rankin $3,500 by check. 22. After payment, the township passed the ordinance. 23. Throughout the period that this matter was before the Board of the Limestone Township Supervisors, Rankin abided by the instructions and counsel of Kent Pope, Limestone Township Solicitor. 24. Mr. Maul, subsequently, filed a civil action in the Clarion County Court of Common Pleas seeking to recover a portion of the funds that had been paid to Mr. Rankin on October 3, 1986. a. Maul has taken no action to proceed on this matter. 25. As part of the complaint in said action, Mr. Maul in part alleged as follows: a. On or about October 3, 1986, the township supervisors met to consider official completion of the terms of the agreement of June 24, 1986. b. At that meeting, defendant demanded payment from plaintiff, contrary to the above agreements between them, in the amount of $3,500.00. c. The township supervisors refused to proceed with the relocation of the township road unless plaintiff paid defendant $3,500.00. 26. Mr. Rankin by way of answer to the civil complaint: a. Admitted the allegation of 25 (a) above. b. Admitted the allegation of 25 (b) above except to the extent that the payment was contrary to the agreement. c. Admitted the allegation of 25 (c) above. Rankin, 89 -018 -C Page 7 III. DISCUSSION: As a Limestone Township Supervisor, Richard C. Rankin, hereinafter Rankin, is a public official as that term is defined in the Ethics Act, 65 P.S. 402; 51 Pa. Code 1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Initially, it is noted that Section 9 of Act 9 of June 26, 1989, P.L. 26, provides, in part, as follows: "This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto." Since the occurrences in this case transpired prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 170 of 1978, P.L. 883, to determine whether the Ethics Act was violated. Under Section 3(a), quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for -himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Under Section 3(b) of Act 170 of 1978 quoted above, this provision of law prohibits a public official /employee from soliciting or receiving anything of value based upon an understanding that his vote, official action or judgment would be influenced thereby. The issue before us is whether Rankin violated either Section 3(a) or Section 3(b) of Act 170 regarding his withholding approval of a township road until he was paid for his services as a private Rankin, 89 -018 -C Page 8 contractor in constructing the road. Factually, an individual by the name of Lew Maul requested the township to relocate a portion of township road, number 523, which transversed his 175 acre farm. In particular, Maul sought to have the road relocated so that it would be a further distance from the dwelling that was situated on the farm. Following the filing by Maul in June 1986 of a petition with the supervisors for relocating township road number 523, an agreement was executed between Limestone Township and Maul whereby Maul agreed to assume all costs associated with the relocation of the road, agreed that the new road would be constructed in accordance with certain specifications, agreed to convey a right of way to the township for the new road and in turn the township, upon completion of the new road, agreed to vacate the existing road. During the discussions regarding the road relocation, Rankin approached Maul and asked Maul if he (Rankin) could bid on the road construction project. Rankin is a principal in Rankin and Son, Excavating which is a company engaged in excavating and construction type activities. Two days after the execution of the agreement between the Township and Maul, Maul and Rankin entered into an agreement whereby Rankin and Son, Excavating would perform the road construction which was subsequently completed. However, a fee dispute arose between Rankin and Maul concerning the amount of money owed Rankin for performing the construction services. Maul asserted that the contract price was $3,000.00 which would be reduced by an amount of $50.00 for every truckload of soil removed by Rankin which Maul believed was 38 truckloads. However, Rankin asserts that the •$3,000.00 figure was based upon an assumption that only 8 inches of top soil would have to be removed during construction and that in fact 36 inches of top soil had to be removed. In addition, Rankin contends that the payment would be reduced by an amount of $45.00 for each truckload of topsoil removed less the cost of removal and hauling and that only 29 loads were removed according to his calculation. Rankin contends that the total cost of services amounted to $6,216.00 plus a $1,305.00 credit for 29 loads of topsoil. In order to effectuate the relocation of the township road, it was necessary that the township pass an ordinance that would authorize such relocation. When the township board of supervisors met in October of 1986, the minutes reflect that motion to pass the ordinance was made but failed to pass due to a lack of any affirmative votes. Rankin made a comment that he should be paid first before the ordinance should be given any consideration (Fact Finding 18). Maul offered to place $3,500.00 in escrow pending resolution of the fee dispute which offer was rejected. Thereafter, Maul proffered a check in the amount of $3,500.00 to Rankin; after payment, the Township passed the ordinance. In a civil law suit filed by Maul against Rankin to recover a portion of the funds he paid, Maul averred that Rankin demanded payment from Maul at the township meeting and that the Rankin, 89 -018 -C Page 9 payment was contrary to the agreement between them. Rankin in his answer did admit that he demanded the payment at the meeting but denied that the agreed upon amount was $3,500.00. In applying the provisions of Section 3(a) and Section 3(b) of Act 170 quoted above, we find a violation of Section 3(a) of the Ethics Act. Clearly the action of Rankin at the October 1986 meeting at the board of supervisors was a use of office in that he offered commentary to lobby against enacting the ordinance for the relocation of the township road until he was paid for the services he performed for Maul. The use of office resulted in a financial gain in that Maul paid $3,500.00 to Rankin by check in order to get the ordinance enacted. Lastly, the financial gain to Rankin individually or as a principal in the business of Rankin and Son, Excavating is other than compensation provided for by law since there is no provision in the Second Class Township Code which would allow a supervisor to oppose an action on an ordinance to serve payment for private services that were performed for the proponent of the ordinance. We do note that as to the solicitor, at all times during the matter of the relocation of the township road, Rankin followed the advice of the solicitor in any official action he took. Given the totality of the facts and circumstances in this case, we will take no further action. As to the Section 3(b) allegation, we find no violation of Section 3(b) of the Ethics Act. Although Rankin did vocally oppose the adoption of the ordinance until he was paid, the required element of -showing that an "understanding" existed in this case is lacking. The finding of a lack of an understanding is buttressed by the fact that at that point in time Rankin and Maul were in an adversarial situation given the dispute between them as to the amount of money which was owing for the service performed by Rankin and Son, Excavating. As stated above, we find no violation of Section 3(b) of the Ethics Act based upon the foregoing facts. IV. Conclusions of Law 1. Richard Rankin as a Limestone Township Supervisor is a public official subject to the provisions of Act 170 of 1978. 2. Rankin violated Section 3(a) of Act 170 of 1978 when he used his position as supervisor to withhold approval of an ordinance authorizing a township road until he was paid as a private contractor for providing services in constructing the road. 3. Rankin did not violate Section 3(b) of the Ethics Act in that no understanding existed as to Rankin regarding the Rankin, 89 -018 -C Page 10 withholding of approval as to an ordinance authorizing a township road until he was paid as a private contractor for providing services relative to the road construction. Rankin, 89 -018 -C Page 11 In re: Richard C. Rankin File Docket: 89 -018 -C : Date Decided: July 12, 1991 : Date Mailed: July 16. 1991, ORDER No. 806 1. Richard Rankin as a Limestone Township Supervisor violated Section 3(a) of Act 170 of 1978 when he used his position as supervisor to withhold approval of an ordinance authorizing a township road until he was paid as a private contractor for providing services in constructing the road. 2. Rankin did not violate Section 3(b) of the Ethics Act in that no understanding existed as to Rankin regarding the withholding of approval as to an ordinance authorizing a township road until he was paid as a private contractor for providing services relative to the road construction. 3. Based upon the totality of the facts and circumstances in this case, the Commission will take no further action. BY THE COMMISSION, ROBERT W. BROWN, CHAIR