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HomeMy WebLinkAbout776 BurnsIn re: Gerald E. Burns STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: : Date Decided: : Date Mailed: Before: Robert W. Brown, Vice G. Sieber Pancoast Dennis C. Harrington James M. Howley 86 -035 -C December 6, 1990 December 7. 1990 Chair 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 S2.38. 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: Gerald E. Burns as a member of the Board of Private Correspondence Schools violated Section 3A of the State Ethics Act, Act 170 of 1978 which prohibits a 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 re- licensing of various schools operated by firms with which you are associated as well as the licensing and re- licensing of administrative and instructional staff of said firms. II. Findings: 1. You served as a member of the PA State Board of Private Correspondence Schools during 1983 and 1986. a. The State Board of Private Correspondence Schools merged with the State Board of Private Business Schools and State Board of Private Trade Schools effective January, 1987. b. Upon the merger of these three boards, the State Board of Private Trade Schools was created. 2. You have served on the State Board of Private Trade Schools from 1987 through the present. 3. You have been employed by ICS (International Correspondence schools) since 1976. a. ICS is a subsidiary of NEC (National Education Center). b. NEC operates the following Pennsylvania based trade /technical schools: Vale Technical Institute, Blairsville, PA and the Thompson Institute, Philadelphia and Harrisburg, PA. 4. The responsibilities of the members of the State Board of Private Correspondence Schools and the State Board of_ Private Trade Schools include but are not limited too: a. Voting for the licensure and re- licensure of trade, technical and correspondence schools. b. Voting for the licensure and re- licensure of agents and instruction administrative staff for the same. 5. The PA Department of Education compiles lists of agents, ad- ministrative and instructional staff which are presented to the board and voted on in their entirety. Mr. Gerald E. Burns Page 2 a. Board members have no involvement in the preparation of these lists. b. Director of Post Secondary Education, Dr. Warren Evans would verify the information in Finding #5. 6. You participated in meetings of the PA State Board of Private Correspondence Schools by voting in favor of issues which pertained to yourself or ICS. July 20, 1984: You voted: 1. For the re- licensure of yourself ICS Center for degree studies. 2. In favor of approving Daniel R. representing ICS. b. December 7, 1984: You voted to approve a list of administrative and instructional staff. The following ICS employees were included on that list: Mark Butler, Rebecca Warnick, William Cusick and John M. Shaffer. c. July 19, 1985: You voted on the following related to ICS: a. representing the Kazmierksi; 1. Approval of the licensing of Henry S. Stasiak representing the ICS Center for degree study. 2. Approval of three ICS Newport /Pacific High School representatives; Marian Gretzula, Barbara Warnick, and Patricia Manville. 3. Approval of John Loveland representing ICS's North American School of Drafting. 4. Approval of Frank Capobianco to represent ICS North American Firearms and Police Science Schools. 5. Approval to renew the licenses of twelve (12) ICS affiliated schools. d. December 6, 1985: You voted in favor of the list of instructional and administrative staff. This list included Frank G. Addleman of ICS. 7. At the State Board of Private Correspondence Schools meeting of February 13, 1986, you were asked to reconsider your votes of December 6, 1985. Mr. Gerald E. Burns Page 3 8. At the State Board of Private Correspondence Schools meeting of May 16, 1986, you abstained from all voting and reconsiderations related to ICS. 9. You abstained from ICS matters before the State Board of Private Correspondence Schools: a. February 17, 1984: You abstained twice on voting for ICS schools. b. July 20, 1984: You abstained twice on matters which involved ICS. c. December 4, 1984: You abstained from voting on ICS programs. d. December 6, 1985: You excused yourself from ICS related talks twice. 10. Voting for the re- licensure of yourself on July 20, 1984 was an unintentional error. a. Voting for the re- licensure of agents, schools, administrative and instructional staff was done as part of your Board responsibilities. There was no financial or other benefit to you for voting in favor of ICS matters. III. Discussion: As a member of the Board of Private Correspondence Schools, Gerald E. Burns, hereinafter Burns, was a public official as that term is defined under the Ethics Act, 65 P.S. 402; 51 Pa. Code S1.1. 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." Since the occurrences in this case transpired prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions Mr. Gerald E. Burns Page 4 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 Burns 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, Burns served on the Board of Private Correspondence Schools between 1983 and 1986 when that Board merged with the State Board of Private Business Schools and State Boards of Private Trades Schools which merger became effective in 1987. Part of Burn'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 International Correspondence School (ICS) by which Burns has been employed since 1976 is a "business with which...[Burns] 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. Factually, at a July 20, 1984 meeting of the Board, Burns voted in favor of his own re- licensure and that of Daniel R. Kazmierksi as Mr. Gerald E. Burns Page 5 representatives of ICS. Thereafter, at a December 7, 1984 meeting Burns voted to approve a list of instructional staffers, four of whom were ICS employees. In a July 19, 1985 Board meeting, Burns voted to approve the following schools and individuals who were associated with ICS: Henry S. Stasiak as representative of the ICS Center for degree study; Marion Gretzula, Barbara Warnick and Patricia Manville as representatives of ICS Newport /Pacific High School; John Loveland as ICS's North American Firearms and Police Science Schools and twelve ICS affiliated schools. Finally, Burns voted in favor of a list at a December 6, 1985 meeting which included Frank G. Addleman of ICS. At a February 13, 1986 Board meeting, Burns was asked to reconsider his voting at the December 6, 1988 meeting; thereafter, at the May 16, 1986, meeting, Burns did abstain from voting on the "reconsideration ". Burns did abstain on matters relating to ICS at the following Board meetings: February 17, 1984, July 20, 1984, December 4, 1984 and December 6, 1985. In applying Section 3(a) of the Ethics Act to the instant matter, we find a technical violation. Burns did 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 ICS affiliates 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 relicensing of agents or affiliated schools of the business with which the public official is associated. We do note that at several meetings, Burns abstained. In addition, he abstained on the "re-address" of the action taken at the May 10, 1986 meeting. Additionally, Burns 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 and circumstances in this case, we will take no further action. IV. Conclusions of Law: 1. Gerald E. Burns 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 Burns voted to approve the licensure /re- licensure of agents or affiliates of ICS at a time when he was associated with that business. In re: Gerald E. Burns : File Docket: 86 -035 -C : Date Decided: December 6, 1990 : Date Mailed: ORDER No. 776 1. A technical violation of Section 3(a) of the Ethics Act occurred when Gerald E. Burns as a member of the Board of Private Correspondence Schools, voted to approve the licensure /re- licensure of agents or affiliates of ICS 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, ROBERT W. BROWN, VICE CHAIR