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HomeMy WebLinkAbout739 FinkenbinerMr. William G. Finkenbiner c/o Smith B. Gephart, Esquire Killian and Gephart 218 Pine Street P.O. Box 886 Harrisburg, PA 17108 -0886 Re: Finkenbiner, 87 -103 -C STATE ETHICS COMMISSION 3021 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 739 Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair W. Thomas Andrews G. Sieber Pancoast Dennis C. Harrington James M. Howley Date Decided: February 22, 199Q Date Mailed: March 6, 1990 Dear Mr. Finkenbiner: The State Ethics Commission received a complaint regarding you and a possible violation of the State Ethics Act, No. 170 of 1978, 65 P.S. 401 et. seq. You were notified in writing as to the commencement of the investigation and as to the specific allegation(s). The investigation has now been completed and a Findings Report was issued to you which constituted the Complaint by the Investigation Division of the State Ethics Commission. An Answer was filed and a hearing was waived. The record is now completed. This Order of the Commission is hereby issued which sets forth the individual allegations, findings, discussion and conclusion as follows: I. Allegation: That you, a Mifflin County Commissioner and an ex- officio member of the Mifflin County Housing Authority, violated the following provisions of the Ethics Act (Act 170 of 1978), when you, as a candidate for re- election in the 1987 Primary Election, obtained from the Mifflin County Housing Authority a confidential loan file of one of your opponents and circulated the contents of that file to party committee members to be shown to voters in an attempt by you to discredit your opponent. Mr. William G. Finkenbiner Page 2 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. 6403(a). 1. You served as an Elected County Commissioner in Mifflin County, Pennsylvania during the year of 1987. 2. You were a candidate for Re- election to the position of County Commissioner during the 1987 primary election. a. One of the other candidates for the post of County Commissioner during that election was Frank H. Berrier. 3. Records of the Mifflin County Housing Authority indicate that on June 26, 1979 Frank H. Berrier, Jr. submitted an application to the authority to participate in the community development program, Valley Neighborhood Rehabilitation Project. a. As part of the application process it was required that information be submitted regarding income and assets of the applicant. b. Mr. Berrier submitted income verification as part of the application process. c. The Housing Authority records further show that on February 8, 1980, Mr. Berrier purchased certain property for $20,000.00. d. As a result of inquiries regarding Mr. Berrier's eligibility to receive a grant and his recent purchase of the above referenced property, further communication with Mr. Berrier was conducted. e. As a result of this communication, it was determined that a transfer of 15,000.00 was made to his savings passbook from Mifflin County Savings and Loans in January, 1979. f. In August of 1980, Mr. Berrier informed the Housing Authority that he did, in fact, have a money market certificate which had not been listed on his application for participation in the Community Development Program as an Mr. William G. Finkenbiner Page 3 asset. This money market certificate was determined to be valued at $10,000.00. g. A second money market certificate was also determined to be unreported. Said certificate was in the amount of $15,000.00. h. As a result of the discovery of these items, it was determined that Mr. Berrier was no longer eligible to participate in the incentive grant program. i. Mr. Berrier subsequently obtained a personal loan to reimburse the Authority for the grant funds that he had obtained for which he was later determined to be ineligible. 4. Records of the Mifflin County Housing Authority contained a log of events which outlined the scenario in relation to the instant situation: a. February 18, 1987 Mr. Finkenbiner came to the Housing Authority office and requested to see the file for Frank Berrier from the Borough's last housing rehab program. The Director advised the files from that program are in storage at Burgard Apartments. She would have the file brought to Lawler Place and would notify Mr. Finkenbiner when it was available. b. March 6, 1987 The Director instructed Cindy Mattern to retrieve the file from Burgard Apartments and notify Mr. Finkenbiner when it was at Lawler Place. Cindy Mattern got the file from Burgard Apartments and notified Mr. Finkenbiner the file he requested from Mrs. Druckenmiller was available. Mr. Finkenbiner picked up the file during the afternoon of this date. Mr. Finkenbiner telephoned this date to state he has reviewed the Frank Berrier rehab file. He questioned if Mr. Berrier repaid the grant which he should not have received. Cindy Mattern replied that Mr. Berrier did repay the grant, Mr. William G. Finkenbiner Page 4 that the Deposit Fund Agreement executed by Mr. Berrier would show the amount of a new loan secured by Mr. Berrier and it was used to repay the grant. Mr. Finkenbiner was advised to review the Deposit Fund Agreement in the file. Mr. Finkenbiner reported he would be returning the file that day and if he was unable to find this information, he would review the file with Cindy Mattern when he brought it back. Mr. Finkenbiner later returned the file on this date. Cindy Mattern was out of the office at that time and he left the file at the Rental Office. No comment made regarding the file. 5. Records of the Mifflin County Housing Authority Community Development Program, Valley Neighborhood Rehabilitation Project Applications indicate that "information contained herein shall be kept confidential." a. The application to the Authority by Frank H. Berrier, Jr. was completed on this form. 6. If called to testify, Rocco J. Soccio, a member of the Mifflin County Housing Authority from December 1985 to present, would testify as follows: a. In late February, 1987, County Commissioner William Finkenbiner contacted him and had in his possession approximately six pages of the loan file from the authority's application relating to Mr. Frank Berrier. b. Mr. Finkenbiner had at least one paper which had a number of figures on it. c. After he finished reading the file, he advised Mr. Finkenbiner that he did not believe the information was damaging to Mr. Berrier. This was so because Mr. Berrier had repaid the loan he received from the Authority. d. He tried to dissuade Mr. Finkenbiner from using this information in the re- election campaign. 7. If called to testify, Ken Kochenderfer, a Mifflin County Commissioner from January, 1984 to the present, would testify as follows: Mr. William G. Finkenbiner Page 5 a. During February of 1987, Mr. Finkenbiner had access to a loan file of the Mifflin County Housing Authority pertaining to Frank Berrier. b. Finkenbiner showed him a copy of the loan file in the hallway of their courthouse offices. c. At the time that he saw the file, he advised Mr. Finkenbiner that he did not want any part of activity related to this and he further refused to look at the information in the possession of Mr. Finkenbiner. d. Mr. Finkenbiner, several days later, gave him a letter and more than one page which were copies of the Berrier loan file. e. He was unaware of whether Party Committeeman Steve Dunkle ever had possession of the file. 8. If called to testify, Doris P. Druckenmiller, Executive Director of the Mifflin County Housing Authority would testify as follows: a. She released the file to Mr. Finkenbiner. b. Until that incident occurred, she was under the impression that such records were public information. Finkenbiner requested the information as a County Commissioner. c. Various studies were ongoing at that time and she saw no significance in his request for the file. She authorized the employee of the Authority, Cindy Mattern to allow Mr. Finkenbiner to see the file, however, there was a misunderstanding and Ms. Mattern allowed him to actually take the file. 9. Lois J. Kuffman was shown a copy of the Berrier loan file by Mr. Finkenbiner sometime before the May, 1987, primary. Various Mifflin County residents acknowledged that they either were advised of the Housing Authority's transactions with Mr. Barrier or received copies of a letter indicating such or copies of portions of the loan file relating to Mr. Berrier. 10. If called to testify, you would testify as follows: a. During 1987, you served as a Mifflin County Commissioner. b. You were not an ex- officio member of the Mifflin County Housing Authority. Mr. William G. Finkenbiner Page 6 c. You were a candidate for re- election in the 1987 Primary Election. d. You did obtain, from the Mifflin County Housing Authority, a loan file of one of your opponents. You believed the loan file was not confidential, but a public record. e. You were told by the Director of the Housing Authority that the information in the loan file was public. f. You did not recall a conversation with Cindy Mattern of the Housing Authority regarding the loan file. You contacted Mr. Soccio and had in your possession copies of several pages of the Berrier file. You can not recall the date of such contact. h. You do not recall that Mr. Soccio tried to dissuade you from using the Berrier information in the re- election campaign. If Mr. Soccio had tried to dissuade you, you would have recalled this. i. You showed Mr. Kochenderfer only a few pages of the loan file, in the small Commissioners' office in the Courthouse. Mr. Kochenderfer did not advise you that he did not want any part of activity related to the Berrier file and that he refused to look at the information. j. You showed a copy of the Berrier loan file to Ms. Lois J. Kuffman sometime before the May, 1987 Primary. B. Discussion As a Mifflin County Commissioner and ex- officio member of the Mifflin County Housing Authority, you are a "public official" as that term is defined under the Ethics Act. 65 P.S. S402; 51 Pa. Code 5101. As such, you are subject to the provisions of the Ethics Law and the restrictions therein are applicable to you. In the instant matter, we must determine whether you have used public office or confidential information by obtaining and circulating the contents of a confidential loan file of a political opponent to discredit him. 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 Mr. William G. Finkenbiner Page 7 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 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. During 1987 you were a candidate for re- election to the position of county commissioner. One of the other candidates for the post of county commissioner was Frank H. Berrier who had submitted an application to the Mifflin County Housing Authority, hereinafter Authority, to participate in the community development program, Valley Neighborhood Rehabilitation Project. Mr. Berrier completed the application, which required information regarding income, and received grant funds. After it was determined that Mr. Berrier had one money market certificate valued at $10,000 and a second certificate valued at $15,000, Mr. Berrier was deemed ineligible to participate in the grant program. He thereafter obtained a personal loan to reimburse the Authority for the grant funds. The Authority log reflects that on February 18, 1987 you appeared at the Authority office and requested the file for Mr. Berrier which was then unavailable due to its storage in another facility. After the file was retrieved, you picked up the file on that date. Thereafter, on March 6, 1987, you telephoned and inquired as to whether Mr. Berrier had repaid the grant. You were advised by Cindy Mattern that Mr. Berrier did repay the grant. You returned the file on that date. The application which was completed by Mr. Barrier reflects a notation that the "information-- contanued herein shall be kept confidential." Mr. William G. Finkenbiner Page 8 During February, 1987 you contacted Authority member Rocco J. Soccio regarding the Berrier application; you had approximately six pages of the loan file with you. Upon review, Mr. Soccio advised that he did not believe the information was damaging and sought to dissuade you from using this information in the re- election campaign. Similarly, you contacted County Commissioner Kochenderfer in February of 1987 regarding the Berrier loan file. Mr. Kochenderfer advised that he wanted no part of such activity and refused to look at any of the information in your possession. Authority Executive Director Doris P. Druckenmiller acknowledged that she released the file to you but did so because she believed the information was a matter of public record. Finally, an indeterminate number of various Mifflin County residents have acknowledged that they were either advised or received copies of the Berrier loan file. Although you acknowledge that you did receive the file, you assert that you believed the information was of public record and not confidential. In order to establish a violation of Section 3(a) of the Ethics Act quoted above, there must be evidence of a use of office or confidential information received through holding public office for a financial gain other than compensation provided for by law. In this case, we do not find that there is evidence of a use of public office on your part. Although you did obtain the loan file of Mr. Berrier, it appears that you did so as a private citizen without attempting to exert any influence or pressure to obtain that particular file. Although there is no question that the information in the loan file is confidential, the question before us is whether you have obtained that confidential information through holding public office. For the reason noted above, the evidence presented does not reflect the obtainment of the confidential information through public office. Accordingly, we find under the facts and circumstances noted above that you have not violated Section 3(a) of the Ethics Act. C. Conclusion and Order 1. As a Mifflin County Commissioner and a ex- officio member of the Mifflin County Housing Authority, you are a public official subject to the provisions of the Ethics Act. 2. You did not violate Section 3(a) of the Ethics Act regarding the obtainment or circulation of the contents of the loan file of one of your opponents since the evidence presented does not reflect a use of public office or the use of confidential information gained through holding public office. This Order is final and will be made available as a public document fifteen days after issuance. However, you may request reconsideration which will defer public release of this Order pending action on your request by the Commission. A request for Mr. William G. Finkenbiner Page 9 reconsideration, however, does not affect the finality of this Order. A reconsideration request must be received at this Commission within fifteen days of issuance and must include a detailed explanation of your 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, including yourself, unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude you from discussing this case with your attorney at law. Any person who violates confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year or both, 65 P.S. 409(e). By t Commissio Helena G. Hughes Chair a