Loading...
HomeMy WebLinkAbout154 HatchardMr. George Hatchard c/o Mr. Daniel Corvelyn 712 Monroe Street Stroudsburg, PA 18360 RE: 80 -23 -C Dear Mr. Hatchard: are: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 July 29, 1982 ORDER OF THE COMMISSION No, 154 The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation into these allegations. The individual allegations and findings on which our conclusion is based I. Allegation: 1. That you, as Chairman of Pocono Mountain Municipal Airport Authority, appointed yourself as Inspecting Engineer on runway construction. 2. That you used your position as Authority Chairman to secure the personal gain described in No. 1 above. II. Findings: 1. You served as Chairman of the Pocono Mountain Municipal Airport Authority, hereinafter, the Authority. The Authority operates the Mount Pocono Airport, hereinafter, the Airport. 2. You are not compensated for serving the Authority. 3. You are a professional engineer and are associated with Woodlane Engineering Inc. as its president. 4. The Authority contracted with Thomas M. Durkin and Sons Inc. for the reconstruction of runway 13/31 at the Airport and the engineers on this project were L. R. Kimball Engineers. 5. Kimball Engineers sub - contracted with Woodlane to perform resident engineering /inspecting services on this runway project. Mr. George Hatchard July 29, 1982 Page 2 a. This sub - contract was approved by the Federal Aviation Admini- stration and the Pennsylvania Department of Transportation. b. Your resume and credentials were submitted and approved as the Wood - lane engineer who would actually operate as resident inspector. c. The compensation under this sub - contract was to be $12,500 versus the $51,000 and $33,000 proposals the Authority had received from two other engi- neering firms. d. There was no public bid process involved in the award or creation of this sub - contract agreement. e. You participated in the Authority's decisions relating to this sub- contract. f. This project and therefore your participation as resident engineer/ inspector ended on or about August 20, 1980. III. Discussion: At one point in time the question of whether municipal authorities were generally subject to the Ethics Act was an open one being litigated in the courts. As of February 10, 1981, however, when the Common- wealth Court issued its ruling in Forney v. State Ethics Commission, 425 A.2d 66, this issue was resolved. Municipal authorities were generally held to be agencies of the Commonwealth and paid members of such authorities were held to be "public officials" subject to the Ethics Act. The initial question to be answered in your case, however, is whether unpaid members of such authorities are similarly subject to the Ethics Act so that their conduct would be subject to the requirement of the Ethics Act. To answer this question we review the definition of "public official" in the Act which states: "Public official." Any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. "Public official" shall not include any appointed official who receives no compensation other than reimbursement for actual expenses. 65 P.S. 402 Mr. George Hatchard July 29, 1982 Page 3 While appointed, non - compensated persons might be said to be clearly excluded from coverage, the definition must also be reviewed in light of the recent ruling in Snider v. Thornburgh, Pa. , 436 A.2d 593 (1981). In that ruling, issued September 29, 1981, the Supreme Court appeared to alter the definition of "public official" by removing the exclusion relating to appointed, non- compensated persons. While this case related to school board directors, it may affect the scope of the entire definition of "public official" by including non - compensated appointed persons previously excluded from the Ethics Act's definition of that term. The State Ethics Commission is currently ilssessing the impact of this ruling and if appointed, non - compensated persons other than school directors are to be affected by this decision, regulations will be promulgated to implement this portion of the Snider ruling. In any event, even assuming that persons such as unpaid authority members previously excluded from the "public official" definition as it stood prior to the September 29, 1981 Snider ruling will eventually, by regulations, be held within the purview of this definition, we are unwilling to apply this Snider ruling retroactively to apply to and to affect your conduct during 1979 -1980. During this period you were not covered by the Ethics Act and we will not review or judge your conduct at this point when such action /conduct was under- taken at a point in time when your inclusion within the definition of "public official" was not clear. IV. Conclusion: The State Ethics Commission will take no further action in the matter because it has now been determined that you were not subject to the Ethics Act at the time the conduct /action in question occurred. We will not apply this subsequent court ruling retroactively. This conclusion is not meant to condone or condemn your conduct. Should you clearly be within the defini- tion of "public official" as established by the Ethics Act or existing or future regulations of the State Ethics Commission and should you face a similar situation in the future, you should solicit the advice of the State Ethics Commission in relation to conforming your conduct to the requirements of the Ethics Act. Our files in this case will remain confidential in accordance with Section 3(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will become available as a public document within 15 days unless you file documentation with the Commission which justifies reconsideration and /or challenges pertinent factual findings. During this 15 -day period, no one, including the Respondent unless he waives his right to challenge this Under, may violate this confidentiality by releasing, discussing or circulating this Order. Mr. George Hatchard July 29, 1982 Page 4 Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). SSC /rdp Sincerely, r Paul J. /'mith Chairma