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HomeMy WebLinkAbout781 WhittingtonIn re: Kenneth Whittington STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: 86 -036 -C : Date Decided: February 14, 1991 : Date Mailed: February 28, 1991 Before: Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington Daneen E. Reese Roy W. Wilt The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, No. 170 of 1978, 65 P.S. 401 et. seq. 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 the Ethics Act, 65 P.S. 408(a) 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). ADJUDICATION I. Allegation: Kenneth Whittington, as a member of the Board of Private Correspondence Schools, violated Section 3(a) of the State Ethics Act (Act 170 of 1978), which prohibits a public employee or public official's use of office or confidential information gained through that office to obtain financial gain in that you have voted to approve licensing and relicensing of various schools operated by firms with which you are associated with as well as the licensing and relicensing of administrative and instructional staff of said firms. II. Findings: 1. Kenneth Whittington served as a member of the PA State Board of Private Correspondence Schools between 1981 and 1986. 2. Kenneth Whittington was employed by Northeastern Technical Institute, Inc. from January 1983 to January 1985. a. He served as President of Superior Training Services from January 1985 to January 1990. b. He received compensation from N.T.I., Inc. 3. Both Northeastern Technical Institute, Inc. and Superior Training Services were separately operated school entities owned by the parent company, Continental Training Services, Inc. a. Both N.T.I. and S.T.S. operated as separate entities with separate staffs and were accredited by separate accrediting commissions. 4. The responsibilities of the members of the State Board of Private Correspondence Schools, included but were not limited to: a. Voting for the licensing and relicensing of correspondence schools. b. Voting for the licensure and re- licensure of agents and instructional /administrative staff for the same. 5. The PA Department of Education compiles lists of agents, administrative and instructional staff which are presented to the board and voted on in their entirety. a. Board members have no involvement in the preparation of these lists. 6. Kenneth Whittington voted at meetings of the PA State Board of Private Correspondence Schools on matters pertaining to Superior Training, Inc. Mr. Kenneth Whittington Page 2 a. April 17, 1984 He seconded and voted on the motion to approve a list of agents. George A. Eberhart of Superior Training, Inc. was on this list. b. July 20, 1984 He seconded and voted on a motion to approve Superior Training's request for approval to solicit students in Pennsylvania. c. July 19, 1985 He voted to approve the following: 1) A list of out -of -state schools which included Superior Training Services of 301 West Indian School Road, Suite 111, Phoenix, Arizona 85067. 2 3 The new agent licensing of Hugh G. Norris and William W. White, Jr. of Superior Training. The license renewal of the following Superior Training agents: Carl Alicandro, John Forrester, John Regan, Claire Swanger, Hugh Norris, William White and Frederick Peech. e. September 13, 1985 He voted to approve twelve agents of Superior Training. f. December 6,1985 He moved and voted to approve: 1) The administration and instructional staff list which included five Superior Training employees. 2) The license renewal of agents, Steven Miller and Matthew Zema. 7. Kenneth Whittington abstained from voting on matters pertaining to Superior Training on the following occasions: a. December 6, 1985 Mr. Kenneth Whittington Page 3 He abstained from voting on the license approval for Superior Training Services. b. February 13, 1986 He was asked to reconsider some of his votes from the Board's December 6, 1985 meeting. He abstained from the vote which pertained to Superior Services, Inc. c. May 16, 1986 He abstained from all voting pertaining to Superior! Services. d. July 18, 1986 He excused himself from board matters which related to Superior Services as of this date. 8. Whittington was never informed that his voting on Superior issues was a potential Conflict of Interest. a. His board votes were not used to enhance his position with Superior Training. b. Voting practices of board members changed after Whittington, Burns, and McCloy received a letter from the State Ethics Commission indicating an investigation into the matter. III. Discussion: As a member of the Board of Private Correspondence Schools, Kenneth Whittington, hereinafter Whittington, was a public official as that term is defined under the Ethics Act, 65 P.D. 402; 51 Pa. Code §1.1. As such, his conduct is subject to the provisions of that law. Initially, it is noted that Section 5 of Act 9 of June 26, 1989 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." Mr. Kenneth Whittington Page 4 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 October 4, 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. The allegation before us is whether Whittington while a member of the Board of Private Correspondence Schools violated Section 3(a) of the Ethics Act as to voting to approve the licensure or re- licensure of various schools or agents and staff thereof when he was associated with businesses which operated the schools. In the instant matter, Whittington served on the Board of Private Correspondence Schools between 1981 and 1986. Part of Whittington's duties on the Board was to vote on the licensure /re- licensure of schools and their agents or staff. Such action occurred when the PA Department of Education compiled and submitted lists for groups of agents and staff for Board action. The Board members had no involvement in the preparation of the lists. The Northeastern Technical Institute, Inc. (N.T.I.) and Supervisor Training Services (STS) by which Whittington was employed between 1983 and 1985 and between 1985 and 1990 respectively were each a "business with which...[Whittington] is associated ". The term "business with which he is associated is defined under the Act as follows: Section 2. Definitions. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or holder of stock. 65 P.S. 5402. Mr. Kenneth Whittington Page 5 In a April 17, 1984 meeting of the Private Correspondence Schools Board, Whittington seconded and voted in favor of a motion to approve lists of agents which included George A. Eberhart of STS. Likewise, in a July 20, 1984 meeting, Whittington seconded and voted in favor of a motion to approve STS's request to solicit students in Pennsylvania. Thereafter, at a July 19, 1985 Board meeting, Whittington voted to approve a list of out -of -state schools which included STS, new agent licensing for STS and the renewal of seven STS agents. Whittington voted to approve twelve STS agents in a September 13, 1985 Board meeting and finally moved and voted to approve the administration/ instructurial staff list which included five STS employees as well as the license renewal of two agents at the December 6, 1985 Board meeting. Parenthetically, although Whittington was not employed by STS in 1984 when he took certain actions as to that business, he was employed by NTI which along with STS were both owned by Continental Training Services, Inc. Subsequently, at four separate Board meetings during 1986, Whittington abstained from voting on matters pertaining to STS. In applying Section 3(a) of the Ethics Act to the instant matter, we find a technical violation. Whittington did make or second motions and vote which constitutes a use of office. A financial gain resulted as to the business with which he is associated through the licensure /re- licensure of agents of that business. Obviously such action enabled STS to continue to function and thereby received tuition or fees through their operation. The compensation is other than provided by law because there is no provision in law which allows for the voting to approve the licensing or re- licensing of agents or affiliated schools of the business with which the public official is associated. Burns, Order 776; McClov, Order 763. We do note that at several meetings, Whittington abstained. Additionally, Whittington did not realize a personal financial gain as a result of his actions. Lastly, the practice of voting on group listings of schools /agents occurred because the Pennsylvania Department of Education prepared and submitted the lists in that manner. In light of the above and the totality of the facts and circumstances in this case, we will take no further action. IV. Conclusions of Law: 1. Kenneth Whittington as a member of the Board of Private Correspondence Schools was a public official subject to the provisions of the Ethics Act. 2. A technical violation of Section 3(a) of the Ethics Act occurred when Whittington voted to approve the licensure /re- licensure of agents or affiliates of STS at a time when he was associated with that business. In re: Kenneth Whittington : File Docket: 86 -036 -C : Date Decided: February 14, 1991 : Date Mailed: February 28, 1991 ORDER No. 781 1. A technical violation of Section 3(a) of the Ethics Act occurred when Kenneth Whittington as a member of the Board of Private Correspondence Schools, voted to approve the licensure /re- licensure of agents or affiliates of STS at a time when he was associated with that business. 2. In light of the fact that there was no financial gain realized and the totality of the facts and circumstances, this Commission will take no further action in this case. BY THE COMMISSION, /4.Z./k) ROBERT W. BROWN, VICE CHAIR