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HomeMy WebLinkAbout1158 HopkinsIn Re: James Hopkins Before: Daneen E. Reese, Chair Louis W. Fryman, Vice Chair Julius Uehlein John J. Bolger Frank M. Brown Susan Mosites Bicket File Docket: 98- 068 -C2 X -ref: Order No. 1158 Date Decided: 06/20/00 Date Mailed: 07/07/00 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation as to the above -named Respondent regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., which inter alia provides for the completion of pending matters under that Act. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was held. The record is complete. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Consent Agreement was subsequently approved and the Stipulation of Findings appears as the Findings in this adjudication. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with the Ethics Act. 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. Confidentiality does not preclude discussing this case with an attorney at law. Hopkins, 98- 068 -C2 Page 2 I. ALLEGATION: That James Hopkins, a public official in his capacity as a Supervisor for Springfield Township, violated provisions of the State Ethics Act (Act 9 of 1989, 65 P.S. §401 et seq.) when he attempted to have the Board of Supervisors participate in a WRAP Grant wherein his company would be selected to conduct an environmental survey and subsequently be compensated by the Department of Environmental Resources. II. FINDINGS: 1. James P. Hopkins has served as a Springfield Township, Bucks County, supervisor from October of 1989 to the present. 2. Hopkins is a Professional Engineer employed as regional manager for Killam Associates, 245 W. Broad Street, Quakertown, PA 18951 -1242, since September of 1995. a. Killam Associates is an engineering firm with headquarters in Millburn, NJ. 3. In October of 1998 the Pennsylvania Department of Environmental Protection (PaDEP) notified governmental agencies, through their weekly newsletter, Update, of the availability of Watershed Restoration and Assistance Program (WRAP) grants for use in the prevention of pollution problems. a. Local municipalities, including Springfield Township received this document. b. The deadline for submitting WRAP grant proposals to the PaDEP was October 30, 1998. 4. On October 13, 1998, at the Springfield Township Board of Supervisors meeting, Hopkins informed other board members of the availability of the WRAP grants and suggested the township apply for a grant to protect Cooks Creek by developing a storm water and fire water retention plan at the Gemstar Tire Reclamation site. 5. The Gemstar Tire Reclamation site is a privately owned property which is the subject of a PaDEP financed clean up of waste tires stored at the site. a. The Gemstar Tire Reclamation site is located within the Cooks Creek watershed. 6. During the October 13, 1998, meeting, Hopkins informed the board that he would seek endorsements from elected officials and local public officials and would prepare the grant proposal for the next supervisors meeting. a. A motion was unanimously approved authorizing Hopkins to prepare the information needed for the WRAP grant proposal. 7 On October 23, 1998, Hopkins sent facsimile transmittals to Pennsylvania State Senator Joseph Conti, Pennsylvania State Representative Paul Clymer, Bucks County Commissioner Charles Martin, Bucks County Conservation District Director Suzanne Forbes, Bucks County Emergency Management Coordinator John Dougherty, Bucks County Planning Commission Director Robert Moore, and the Concerned Citizens of Hopkins, 98- 068 -C2 Page 3 Springfield Township, seeking endorsement letters in support of the township's application for the WRAP grant. a. The letters stated the Springfield Township Board of Supervisors have agreed to submit the application for the WRAP grant and authorized Hopkins to lead the effort. 8. State Senator Joseph Conti responded to the request with a letter of recommendation of Springfield Township's application for the WRAP grant to James M. Seif, Secretary of the Department of Environmental Protection. a. The letter of recommendation was copied to James Hopkins, Springfield Township Supervisor. 9. State Representative Paul Clymer responded with a letter of recommendation for the WRAP grant application addressed to Springfield Township Supervisor James Hopkins. 10. Bucks County Emergency Management Coordinator John Dougherty responded with a letter of recommendation addressed to James Hopkins, PE, at Killam of Quakertown. 11. The Cooks Creek Watershed Association responded with a letter of endorsement addressed to James Hopkins, Springfield Township Board of Supervisors. 12. The Springfield Township Concern Citizens responded with a letter rejecting the request for endorsement of the application for the WRAP grant which was addressed to Springfield Township Board of Supervisors, attention James Hopkins. This letter was first seen when presented to the township supervisors on October 27, 1998, immediately before the supervisors voted the WRAP grant application. 13. Hopkins prepared a draft of the Watershed Restoration and Assistance Program (WRAP) Grants Proposal which he submitted to other members of the Township Board of Supervisors prior to the October 27, 1998, Board of Supervisors meeting. 14. The draft contained information indicating it was to be submitted by the Board of Supervisors, Springfield Township, Bucks County, 2320 Township Road, Quakertown, PA 18951, with a signature line for signing by Authorized Representative Donald C. Kucher, Chairman of the Board of Supervisors. a. The draft identified Hopkins as a township supervisor who would serve as the contact person for Springfield Township and would manage and coordinate the project on a volunteer basis. b. Killam Associates was proposed as the firm providing consultant services for the storm water and firewater management plans. 15. On October 27, 1998, Hopkins submitted a memorandum to the Springfield Township Board of Supervisors informing them of the Board's need to approve the WRAP grant application at that night's meeting and to submit it to the PaDEP by the following Friday. Hopkins, 98- 068 -C2 Page 4 a. Hopkins explained in the memorandum that he has proposed to utilize the services of Killam Associates storm water planning group and as a result will be obligated to abstain from voting on the proposal. b. Killam Associates would be compensated for providing these services. 16. Hopkins discussed the WRAP grant application with Township Solicitor James McNamara and informed McNamara he would not vote on the issue because of Killam Associates' work on the project. a. Hopkins did not seek, and was not given, a written opinion from McNamara on what actions he could take in reference to the proposed grant application. 17. During the October 27, 1998, Springfield Township Board of Supervisors meeting the WRAP grant proposal was reviewed. a. Hopkins provided information on the WRAP grant proposal to the Board of Supervisors and answered questions from the Board and citizens who attended the meeting. b. Supervisor Peter Lamana requested that Board Chairman Donald Kucher bring the matter of submitting the WRAP grant proposal up for a vote and the motion was seconded by Supervisor Kucher. c. Supervisors Donald Kucher and Charles Mease voted in favor of submitting the proposal while Supervisors Peter Lamana and Rod Wiener voted against the motion. d. Hopkins declined to vote on the motion because engineering services were being provided by his company, Killam Associates, as identified in his memo to the Board. e. Hopkins then stated he could vote on the issue mistakenly believing because of the tie vote and because of a prior experience with a three member board that he could cast the deciding vote authorizing submission of the WRAP grant proposal to the PaDEP. f. Hopkins' vote was expressly conditioned upon the approval of the township solicitor who was not in attendance at the meeting. 18. Lamana questioned the legality of Hopkins' vote and asked Chairman Kucher to determine if the vote was legal. a. Kucher and Hopkins directed the Township Secretary, Barbara Smith, to contact Solicitor James McNamara and request an opinion. b. Kucher and Hopkins directed Smith not to submit the grant proposal until McNamara provided a ruling on Hopkins' vote. 19. On October 28, 1998, both Hopkins and Smith contacted Solicitor McNamara and presented him with an outline of the events that took place at the October 27, 1998, meeting. 20. McNamara researched the State Ethics Act and informed the board of supervisors, both verbally and by memorandum, that Hopkins should not have voted on the matter, therefore the application for the grant did not Hopkins, 98- 068 -C2 Page 5 receive sufficient votes for approval. McNamara indicated that he, too, was confused by the voting requirement of the Act. 21. Hopkins informed the Board of Supervisors, by memorandum dated October 28, 1998, of McNamara's opinion. a. Hopkins added he was wrong in his understanding of the conflict issue and that the township WRAP grant application would end. 22. The WRAP grant application submitted at the October 27, 1998, Board of Supervisors meeting contained, in part, the following information: a. That James P. Hopkins, P.E., a Springfield Township Supervisor, would be involved in managing and coordinating the work at the Gemstar site, on a volunteer basis, and estimated Hopkins would spend 100 hours on the project with a value of $100 per hour. Total estimated value of Hopkins' volunteer work was set at $10,000. b. That Killam Associates would be paid $12,500 for their work on the project. c. That a local surveyor would be paid $2,500 for work on the project. 23. On October 28, 1998, Hopkins sent facsimile transmittals to Pennsylvania State Senator Joseph Conti, Pennsylvania State Representative Paul Clymer, Bucks County Commissioner Charles Martin, Bucks County Conservation District Director Suzanne Forbes, Bucks County Emergency Management Coordinator John Doughtery, Bucks County planning Commission Director Robert Moore, and Cooks Creek Watershed Association President James Orben, informing them of the Board of Supervisors actions at the October 27, 1998, meeting, and that the WRAP grant applications would not be submitted. 24. On October 28, 1998, Hopkins contacted Cooks Creek Watershed Association President James Orben, by telephone, and asked him if the Cooks Creek Watershed Association would be interested in submitting the grant application in their name. a. Hopkins felt the Cooks Creek Watershed Association was eligible to submit the grant application because of their status as a non - profit corporation. 25. Orben agreed to submit the application in the Cooks Creek Watershed Association's name and met with Hopkins, at the Killam Association's Quakertown office, on October 29, 1998, to discuss the application. 26. Hopkins revised the application he prepared for Springfield Township by changing the name of the agency submitting the application to Cooks Creek Watershed Association, P.O. Box 45, Springtown, PA 18081 (A Non - Profit Corporation). a. Hopkins changed the name of the Authorized Representative to James K. Orben, President. b. Hopkins continued to list himself as the contact person for the project but deleted Township Supervisor which had been next to his name. Hopkins, 98- 068 -C2 Page 6 27. Hopkins continued to identify himself as a township supervisor in the Abstract and Project Team sections of the application, expressly citing his inclusion because of his years of experience with the site. 28. The WRAP grant application was signed by James Orben on October 29, 1998, while inside KiIlam Associates' Quakertown office. 29. The WRAP grant application was sent by Hopkins, via Federal Express Overnight Delivery, to the Pennsylvania Department of Environmental Protection in order to meet the October 30, 1998, deadline. a. Hopkins attached the letters of endorsement received from State Senator Joseph Conti and State Representative Paul Clymer to the application submitted in the Cooks Creek Watershed Association name but that the letters of endorsement were solicited and received by Hopkins in his capacity as a Springfield Township Supervisor and were sought and received on behalf of the Township Board of Supervisors was expressly disclosed in the application. b. Hopkins also submitted a copy of his October 28, 1998, facsimile transmittal. 30. On November 2, 1998, Hopkins, in a memorandum to the Township Board of Supervisors, stated the Cooks Creek Watershed Association intended to address the Board of Supervisors at the November 10, 1998, meeting for the purpose of having the Board reconsider managing the program should the grant be awarded to Association. a. The Association did not address the board of supervisors at that meeting. 31. The WRAP grant application submitted by Hopkins on behalf of the Cooks Creek Watershed Association was reviewed and not selected by the Pennsylvania Department of Environmental Protection. 32. No payments were made to Killam Associates as a result of the non - selection by Pa. Department of Environmental Protection. III. DISCUSSION: At all times relevant to this matter, the Respondent, James Hopkins (Hopkins), has been a public official subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401 et seq., as codified by the Public Official and Employee Ethics Act, as now codified by Act 93 of 1998. The issue is whether Hopkins violated Section 3(a) of the Ethics Act as to the allegations that he attempted to have the Board of Supervisors participate in a WRAP Grant wherein his company would be selected to conduct an environmental survey and subsequently be compensated by the Department of Environmental Protection. Section 403. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. Hopkins, 98- 068 -C2 Page 7 65 P.S. §403(a). The term "conflict of interest" is defined under the Ethics Act as follows: Section 402. Definitions. "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. §402. Section 3(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Having noted the issues and applicable law, we shall now summarize the relevant facts. Since October, 1989, Hopkins has served as a Springfield Township Supervisor. In a private capacity, Hopkins is a professional engineer employed as the Regional Manager for Killam Associates. In October, 1998, the Pennsylvania Department of Environmental Protection (DEP) notified governmental agencies of the availability of Watershed Restoration and Assistance Program (WRAP) grants for use in the prevention of pollution problems. Since the deadline to submit an application for a WRAP grant to DEP was October 30, 1998, Hopkins informed the other board members at the October 13, 1998, meeting of the availability of WRAP grants and suggested that Springfield Township apply for a grant to develop a plan for the Gemstar Tire Reclamation site. Hopkins informed the other board members that he would seek endorsements from various elected public officials and would prepare a WRAP grant proposal for the next meeting. On October 23, 1998, Hopkins sent out transmittals to various officials seeking letters of endorsement in support of the Township's application to DEP for the WRAP grant. Although a number of state and county officials responded favorably with letters of recommendation, the Springfield Township Concerned Citizens responded with a letter rejecting the endorsement request. Hopkins prepared a draft of the WRAP proposal which identified himself as the supervisor who would be the contact person to manage and coordinate the project on a volunteer basis with Killam Associates as the firm providing consultant services for the stormwater and firewater management plans. At the October 27, 1998, Board meeting, Hopkins submitted a memorandum to the Township Board advocating approval of the WRAP grant application. In addition, Hopkins explained Hopkins, 98- 068 -C2 Page 8 that because the proposal would utilize the compensated services of Killam Associates, he was obligated to abstain from voting on the proposal. At the October 27, 1998, meeting of the Township Board, the WRAP grant proposal was reviewed. A motion was made to submit the grant proposal which failed in a 2 -2 vote. Hopkins then stated he would vote on the issue based upon the mistaken belief that he could vote in the event of a tie. Hopkins' vote to break the tie was conditioned upon the approval of the township's solicitor who was not in attendance at that meeting. After the legality of Hopkins's vote was questioned, Hopkins and the Township Secretary contacted the solicitor and outlined the events that had occurred. The solicitor researched the matter and concluded that Hopkins should not have voted. By memo of October 28, 1998, Hopkins informed the Board that he was wrong in his understanding of the conflict issue and therefore the Township WRAP grant application would not be submitted. Hopkins then contacted the Cook's Creek Watershed Association President to inquire if the Association would be interested in submitting the grant application in its name, given its status as a non - profit corporation. After it was agreed to submit the application in the Association's name, Hopkins revised the application. Although the President of the Association was listed as the authorized representative, Hopkins continued to list himself as the contact person for the project. Hopkins then sent the application to DEP to meet the October 30, 1998, deadline. In a November 2, 1998, memo, Hopkins outlined to the Board that the Association wanted the Board to reconsider managing the program in the event that the WRAP grant would be awarded to the Association. However, the WRAP grant was not selected by DEP and no payments were made to Killam Associates. The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein it is proposed to resolve the case by finding a technical violation of Section 3(a) of the Ethics Act by Hopkins when he used his position as a Supervisor for Springfield Township, upon the mistaken belief that he was permitted to do so, by participating in board actions to have a business with which he is associated awarded a contract with the township, pending acceptance of the grant application by DEP; and a payment of $650.00 within 30 days of the issuance of this Order by Hopkins through this Commission to Commonwealth of Pennsylvania. In applying the provisions of Section 3(a) of the Ethics Act to the instant matter, there was a use of authority of office on the part of Hopkins as a public official relative to the WRAP grant. Hopkins brought the WRAP grant matter to the attention of the Board, prepared the WRAP application, solicited recommendations from officials, listed himself as the contact person, and included Killam Associates as the engineering firm to do the work for compensation. In addition, Hopkins cast the vote to break the tie on the second vote after the first motion did not carry. Such actions were uses of authority of office. See, Juliante, Order 809. Such actions would have resulted in a private pecuniary benefit consisting of the payment for the services that Killam Associates would have provided. Killam Associates is a business with which Hopkins is associated as that term is defined under the Ethics Act in that Hopkins is an employee of that firm. However, DEP did not award the WRAP grant to the Township or the Association. Accordingly, a technical violation of Section 3(a) of the Ethics Act by Hopkins occurred when he used his position as a Supervisor for Springfield Township, upon the mistaken belief that he was permitted to do so, by participating in board actions to have a business with which he is associated awarded a contract with the township, pending acceptance of the grant application by DEP. Hopkins, 98- 068 -C2 Page 9 As to the Stipulation of Findings and Consent Agreement, we believe that the Consent Agreement is the proper disposition for this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, Hopkins is directed to make the payment of $650.00 to the Commonwealth of Pennsylvania within 30 days of the date of this Order. Compliance with the foregoing will result in the closing of this case with no further action. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. James Hopkins, as a Supervisor in Springfield Township, is a public official subject to the provisions of Act 9 of 1989 as now codified by Act 93 of 1998. 2. Hopkins technically violated Section 3(a) of the Ethics Act when he used his position as a Supervisor for Springfield Township, upon the mistaken belief that he was permitted to do so, by participating in board actions to have a business with which he is associated awarded a contract with the township, pending acceptance of the grant application by DEP. In Re: James Hopkins ORDER NO. 1158 File Docket: 98- 068 -C2 Date Decided: 06/20/00 Date Mailed: 07/07/00 1. James Hopkins, as a Supervisor in Springfield Township, technically violated Section 3(a) of the Ethics Act when he used his position as a Supervisor for Springfield Township, upon the mistaken belief that he was permitted to do so, by participating in board actions to have a business with which he is associated awarded a contract with the township, pending acceptance of the grant application by DEP. 2. Per the Consent Agreement of the parties, Hopkins is directed to make payment in the amount $650.00 through this Commission to the Commonwealth of Pennsylvania within 30 days of the date of issuance of this Order. a. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, DANEEN E. REESE, CHAIR