HomeMy WebLinkAbout376 RichardsMr. Roger Richards, Esquire
c/o Mr. Vincent X. Yakowicz
Commonwealth of Pennsylvania
Office of the State Treasurer
Finance Building
Harrisburg, Pennsylvania 17120
RE: No. 83- 182 -C
Dear Mr. Richards:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
April 18, 1985
Order No. 376
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. The individual allegations, conclusions and findings on which
those conclusions are based are as follows:
I. Allegation: That you are a "public official" and as such violated the
Ethics, 65 P.S. 403(a) or 401, by acting upon a matter before the
Pennsylvania Higher Educational Facilities Authority (PHEFA) as to the
appointment of a law firm (English and Richards) as bond counsel for a PHEFA
project at Gannon University when you are a partner in said law firm.
A. Findings:
1. The Treasurer of the Commonwealth of Pennsylvania, R. Budd Dwyer,
hereinafter, the Treasurer or Dwyer, serves as a member of the Board of the
Pennsylvania Higher Education Facilities Authority, hereinafter, the Authority
or PHEFA.
a. This Authority was created pursuant to the act of the
Legislature, P.L. 678, December 6, 1967, 24 P.S. 5501 -5517, hereinafter,
the Act.
b. The Authority, pursuant to this legislation, is created for the
purpose of acquiring, constructing, improving, maintaining, and operating
any educational facility as defined in the Act.
Mr. Roger Richards, Esquire April 18, 1985
Page 2
c. The Authority is composed of members designated in Section 4 of
the Act as follows:
§5504. Pennsylvania higher educational facilities
authority
The Governor, the State Treasurer, the Auditor General,
the Superintendent of Public Instruction, the Secretary of
Property and Supplies, the President pro tempore of the
Senate, the Speaker of the House of Representatives, the
Minority Leader of the Senate, the Minority Leader of the
House of Representatives and their respective successors
in office are hereby created as a body corporate and
politic, constituting a public corporation and public
instrumentality by the name of the "Pennsylvania Higher
Educational Facilities Authority." The President pro
tempore of the Senate and Minority Leader of the Senate
and the Speaker of the House of Representatives and
Minority Leader of the House of Representatives may
designate any member of the Senate or House, respectively,
to act in their stead to serve at the discretion of the
respective President pro tempore and Speaker of the House
of Representatives or Minority Leader. Said members shall
be entitled to reimbursement for all necessary expenses
incurred in connection with the performance of their
duties as members. The President pro tempore of the
Senate, the Speaker of the House of Representatives, the
Minority Leader of the Senate and the Minority Leader of
the House of Representatives shall continue as members of
the authority until their respective successors in office
assume such office, regardless of whether or not they
shall have ceased to be members of the Senate or the House
of Representatives. 24 P.S. 5504.
d. Further, Section 4 of the Act, states that the members of the
Authority may:
The members of the authority may authorize by written
proxy or authorization a personal deputy to appear and act
for them at a meeting and for the purpose specified in
such written proxy or authorization, provided that a
separate written authorization or proxy shall be required
for each separate meeting. 24 P.S. 5504.
2. By a letter dated May 8, 1981, addressed to Wayne D. Gerhold,
Executive Director of the State Public School Building Authority, Dwyer
designated you as his "designee" to the PHEFA.
Mr. Roger Richards, Esquire April 18, 1985
Page 3
a. This letter stated "Roger will attend meetings with me (Dwyer)
when they are held and represent me and vote for me at meetings of the
authority (PHEFA) when I am not able to be present."
b. This designation has not been revoked to date, nor has any
other separate proxy or authorization for each separate meeting been
provided to us.
3. Under the terms of this designation and letter, you essentially, act
as a "citizen volunteer" and when you attend meetings and act as set forth in
this letter you received no payment or compensation, except that you are
reimbursed for expenses actually incurred while acting as Dwyer's designee to
the Authority.
4. You are, by profession, an attorney and are engaged in the practice
of law in the firm of English and Richards, hereinafter, the Firm or English.
5. The Authority, during 1983, considered the question of authorizing
the issuance of bonds associated with undertaking a project at or on behalf of
Gannon University, referred to herein as the project or the bond issue.
a. This project was originally to finance the acquisition and
renovation of an existing building for use as an education center and of
three existing apartment buildings for student housing.
b. The maximum amount to be financed was approximately $2
mil lion.
6. The minutes of the Authority for 1983 and with relation to this
project confirm the following with respect to the dates, meetings, and minutes
indicated:
a.(1) March 23, 1983 - You were present and listed as "Proxy for
R. Budd Dwyer.
(2) After other business, the members of the Authority present were
informed that this project had been approved by the Department of
Education.
(3) A motion was made to adopt a Resolution undertaking this
project and this motion passed unanimously.
(4) The costs of bond counsel were, as set forth in the Resolution,
so adopted; to be paid from the proceeds of the bonds issued to support
this project.
b.(1) April 27, 1983 - Both you and Dwyer were present at the
Authority meeting.
Mr. Roger Richards, Esquire
Page 4
April 18, 1985
(2) The Authority amended the Resolution as to the project, as
outlined above, to enlarge the scope of the project and the amount.
thereof.
(3) The scope of the project was extended to include the financing
of new construction of a Student Recreation Center and the acquisition
and renovation of a building to be used as a lecture hall, classrooms,
and by the faculty.
(4) The amount to be financed was increased to a maximum of $6
million.
(5) This amendment was unanimously adopted, but the minutes do not
reflect whether you or Dwyer voted.
c.(1) June 22, 1983 - the Authority met and both you and Dwyer
were present.
(2) The representative of the Auditor General who was present, Mr.
Imber, asked who had been named bond counsel for the project and was
advised that English had been appointed as bond counsel for the project
by the Governor's Office of General Counsel.
(3) You described English's duties as bond counsel to insure
compliance of the bond issue with all legal requirements, including the
tax - exempt status of the bonds.
(4) Following a discussion of your status with respect to the
Authority and that of English as bond counsel, a motion was made to
consider the Resolution passed March 23, 1983 and April 27, 1983 with
respect to this project as remaining "in full force and effect."
(5) All present voted, including Dwyer, and all except Mr. 'Amber,
voted in favor of this Motion.
d.(1) June 29, 1983 - A meeting of the Authority was held at which
Dwyer was present, but you were not present.
(2) Also present was John English, Esquire - of the Firm.
(3) This meeting was held for the purpose of confirming the actions
taken with respect to the project at the March 23, 1983 and April 2.7,
1983 meetings, described above.
(4) A Resolution consolidating, restating and ratifying the
Resolutions, adopted and described above with respect to the project, was
introduced and unanimously approved.
Mr. Roger Richards, Esquire
Page 5
April 18, 1985
e. September 28, 1983 - The Authority met and both you and Dwyer
were present, but no business with respect to the project is recorded.
f. October 19, 1983 - The Authority met and Dwyer was present, but
you were not present; no business with respect to the project is
recorded.
g. December 14, 1983 - The Authority met and Dwyer was not
present; you were present, but no business with respect to the project is
recorded.
7. State Treasurer, R. Budd Dwyer, informed the Commission that although
he arrived late for the March 23, 1983 PHEFA board meeting, he did arrive in
time to "participate in the motion regarding the Gannon University project."
8. You informed the Commission that you did not vote as a designee for
the State Treasurer on the Gannon University bond issue.
9. The firm of English and Richards was appointed as bond counsel for
the project.
a. This appointment was made by the Office of the General Counsel
to the Governor.
b. This appointment was made on or before June 22, 1983.
c. This Firm acts as bound counsel for the project pursuant to
this appointment.
10. There is no evidence that you were or the Firm was offered, given,
or accepted anything of value on the understanding that your conduct as a
representative of Dwyer on the Authority at the meetings where you voted, as
outlined above, would be influenced thereby.
11. There is no evidence that you used your status as a representative
of Dwyer, in the votes outlined above, to obtain financial gain for yourself
or for a business with which you are associated.
B. Discussion: The Ethics Act governs the conduct of "public officials" and
"public employees" and requires in part, that:
Section 1. Purpose.
The Legislature hereby declares that puhlic office is a
public trust and that any effort to realize personal
financial gain through puhlic office other than
compensation provided by law is a violation of that trust.
In order to strengthen the faith and confidence of the
Mr. Roger Richards, Esquire April 18, 1985
Page 6
people of the State in their government, the Legislature
further declares that the people have a right to be
assured that the financial interests of holders of or
candidates for public office present neither a conflict
nor the appearance of a conflict with the public trust.
Because public confidence in government can best be
sustained by assuring the people of the impartiality and
honesty of public officials, this act shall be liberally
construed to promote complete disclosure. 65 P.S. 401.
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
others than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated.
(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 he influenced thereby.
65 P.S. 403(a) and (b).
While we are aware of the fact that the question of whether you are a
public official, and therefore within the purview of the State Ethics Act is
a matter of jurisdictional importance, we need not, at this time, decide that
matter in light of the reasons hereinafter set forth.
The Commission has found no evidence that you voted either at the March
23, 1983, April 27, 1983, or the June 22, 1983 meeting of the PHEFA Board of
Directors. The records reflect that State Treasurer Dwyer was present at each
of the meetings when the Gannon project was discussed and approved. In
addition, we found no evidence that at the time of these votes, you or your
firm had accepted or been offered or promised the appointment of bond counsel
for this project. It can hardly be established, therefore, that a violation
of Section 3(a) or 3(h) of the Ethics Act exists under these circumstances.
C. Conclusion: Tinder these circumstances, there was no violation of Section
3(a) or (b) of the Ethics Act.
Mr. Roger Richards, Esquire
Page 7
Our files in this case will remain confidential in accordance with Section
8(a) of the Ethics Act, 65 a.S. 408(a). however, this Order is final and will
be made available as a public document 15 days after service (defined as •'
mailing) unless you file documentation with the Commission 4ich justifies
reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code
2.38. Durin this 15-day period, no one, including the Respondent unless he
waives his right to challenge this Order, may violate this confidentiality by
releasing, discussing or circulating this Order.
Any person who violates the confidentiality of a proceeding is
guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned
for not more than one yea:° or both, see 65 P.S. 409(e).
HBC /na
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By,th- C.►miss
erbe B. Conner
Chai man
April 18, 1985