HomeMy WebLinkAbout1223 JacobsonIn Re: Melvyn Jacobson
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Daneen E. Reese, Chair
Louis W. Fryman, Vice Chair
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
Donald M. McCurdy
Michael Healey
00- 032 -C2
Order No. 1223
11/15/01
11/30/01
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted
an investigation regarding a possible violation of the Public Official and Employee Ethics
Act, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., as codified by Act 93 of 1998, Chapter 11,
65 Pa.C.S. §1101 et seq., by the above -named Respondent. 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 not filed and a hearing was waived. 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.
Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter
11 of Act 93 of 1998, 65 Pa.C.S. §1101 et seq., which essentially repeats Act 9 of 1989
and provides for the completion of pending matters under Act 93 of 1998.
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 Chapter 11 of Act
93 of 1998. 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.
Jacobson, 00- 032 -C2
Page 2
I. ALLEGATION:
That Melvyn Jacobson, a public official /public employee in his capacity as an
Architectural Supervisor, Pennsylvania Department of General Services, Bureau of
Engineer and Architecture, violated Section 1103(a) of the State Ethics Act (Act 93 of
1998) when he used the authority of his office for a private pecuniary benefit by
recommending that a mural be painted in the Pennsylvania State Lottery Building;
participating in the drafting of plans and determining costs for the mural; and when he
subsequently was compensated for services related to the painting of the mural.
II. FINDINGS:
1. Melvyn Jacobson was employed by the Commonwealth of Pennsylvania,
Department of General Services, Bureau of Architecture and Engineering, from
December 15, 1997, until May 19, 2000, as an Architectural Manager.
2. Mark Schwager, Chief of the Architectural Design Division was Jacobson's
immediate supervisor.
a. Schwager supervised Jacobson's work assignments.
3. Jacobson's general job duties as Architectural Manager included supervising a
group of architects engaged in the planning and design of new construction and
alterations to existing structures.
a. DGS's Personnel Department maintains a job description with the following
additional duties for the position of Architectural Manager:
1. Assignment of architects is accomplished in accordance with skill
required on the project. Work involves new construction or
remodeling, or alteration to present structures. Examples of such
work include repair, renovations and remodeling work to
Commonwealth -owned buildings and construction for the various
state agencies. Directs the preparation of the drawings, designs, cost
estimates, and specifications. Acts as coordinator of all design
disciplines, including engineering on all projects where architecture
involvement is dominant — Reviews all teamwork and all projects in
progress.
2. Makes field surveys or supervises architects in surveys. Contacts
using agency to determine intent of project and programs involved.
Sets up conference with agency and institutional representatives to
determine needs and to recommend changes to better accomplish
goals.
3. During life of project, incumbent is in contact with using agency
representatives, consulting engineering firms, architects, and
contractor representatives. As the lead authority for the project,
generally administers projects through using agency.
4. Consults with, and obtains approvals from allied agencies, such as
the Art Commission, Department of Health, and the Department of
Labor & Industry, on Architectural and Structural problems.
5. Provides preliminary sketches to draftsman to aid in their preparation
of plans.
Jacobson, 00- 032 -C2
Page 3
6. In reviewing plans and drawings, considers floor capacity and general
regulatory codes and standards. Follows appropriate Trade Institute
Standards. Maintains library of standards up -to -date to insure
accurate and current knowledge of the state -of- the -art for any trade
discipline.
7 Prepares comprehensive reports and recommendations on proposed
construction and initiates related correspondence.
4. Employees of the Department of General Services are permitted to have
supplemental employment with departmental approval provided the supplemental
employment does not constitute a conflict of interest or interfere with the
employee's responsibility to the Commonwealth.
5. Jacobson requested supplemental employment approval in December 1997 to
serve as a ski instructor at Doe Mountain and in April 1998 to perform design and
consultation services to private clients on a part -time basis.
a. No departmental approval was received for these requests.
6. In 1998 and continuing in 1999 and 2000 DGS's Bureau of Engineering and
Architecture became involved with a renovation project for the Pennsylvania State
Lottery.
7 The State Lottery Bureau is a division of the Pennsylvania Department of Revenue.
a. Lottery headquarters and executive offices are located at 2850 Turnpike
Industrial Drive, Middletown, PA 17057.
8. Lottery headquarters and executive offices in Middletown are located on property
leased from Heartland Properties limited Partnership t/a Cumberland Management,
75 Utley Drive, Camp Hill, Pennsylvania 17011.
a. Lottery has leased this property from Cumberland Management since at
least August 11, 1987.
b. The lease for the Lottery was entered into between the Commonwealth of
Pennsylvania acting through the Department of General Services, agent for
the Department of Revenue and Heartland Properties Limited Partnership,
t/a Cumberland Management.
9. Cumberland Management has managed this property since about June 2, 1987.
a. Brett Crans has served as the property manager on behalf of Cumberland
Management at all times relevant to this investigation.
10. On or about March 20, 1998, Brett Crans, Property Manager for Cumberland
Management officially contacted Daniel Cook, Executive Director Lottery, inquiring
whether Lottery was interested in renewing its lease beyond December 2001 and
what improvements would need to be made by Cumberland Management for Lottery
to renew the lease.
a. The property Lottery was leasing from Cumberland Management needed
renovations if Lottery was to continue to occupy it.
b. Informal discussions about renovating the property occurred between
Cumberland Management and lottery officials as early as the latter part of
Jacobson, 00- 032 -C2
Page 4
1997.
11. Executive Director Cook discussed the Lottery's options regarding renovating their
current facilities or moving to a new location with Robert A Judge, Sr., Secretary of
Revenue.
a. Both Cook and Judge were of the opinion that they should have Cumberland
Management renovate Lottery's current leased facility instead of relocating
Lottery headquarters.
12. Robin Costenbader- Jacobson served as the Deputy Executive Director of Lottery
from December 1, 1997, until February 12, 1999.
a. Costenbader- Jacobson assumed an active role overseeing the renovation
project from the beginning.
b. Costenbader- Jacobson is the wife of Melvyn Jacobson.
13. A core group of Lottery employees, including Executive Director Cook, Deputy
Executive Director Robin Costenbader- Jacobson and Director of Administration
William Waddington had numerous discussions during the spring of 1998 with Brett
Crans of Cumberland Management regarding the project.
14. Robin Costenbader- Jacobson recommended seeking design changes for the layout
of the building from DGS's Bureau of Engineering and Architecture.
a. At the time of Costenbader - Jacobson's recommendation, her husband,
Melvyn Jacobson, had recently been hired as an architect by the
Architectural Design Division.
15. On January 14, 1998, William Waddington, Director of Administration for the Lottery
faxed an Agency Project Work Request form to DGS's Bureau of Professional
Selection and Administrative Services.
a. The scope of work included the renovation of existing office space with build
outs for new offices in areas currently occupied by warehouse replacement
of office cubicles, carpeting, furniture, etc., need floor plans, costs, etc.
16. On January 15, 1998, Lottery requested that the Bureau of Engineering conduct a
survey and cost estimate for the renovation of office space in Lottery headquarters.
a. This request was received by DGS's Bureau of Engineering and Architecture
on January 20, 1998.
17. It is unusual for the Architectural Design Division (ADD) to do the design layout for
space leased by the Commonwealth in privately owned buildings.
a. The ADD generally designs space for Commonwealth owned buildings.
b. According to Robert L. Glenn, Director Bureau of Engineering and
Architecture, it is not a standard practice for that bureau to perform design
work for renovations to buildings which are not state owned.
1. The department got involved because Melvyn Jacobson's wife was
employed as the Deputy Executive Director of Lottery and requested
their involvement.
Jacobson, 00- 032 -C2
Page 5
18. Schwager, in his capacity as Chief of the Architectural Design Division was
assigned the project of conducting a survey and cost estimate for the Lottery
renovations.
19. Schwager assigned Melvyn Jacobson, project supervisor, to conduct the survey and
cost estimates.
a. This was one of Jacobson's first projects for DGS.
b. Schwager assigned Jacobson to the project because of Robin Costenbader-
Jacobson's involvement with the project.
c. Jacobson completed the survey on or about April 15, 1998.
20. When completing the survey, Jacobson met with Steve Williams, Draftsman
Designer, DGS, Daniel Cook, William Waddington, William Fehl, Department of
Revenue, Chief of Facilities Management and Jacobson's wife, Robin Costenbader-
Jacobson.
a. Jacobson would keep Schwager apprised on the discussions and progress
made.
b. Schwager had oversight of Jacobson's actions and /or decisions made in the
planning process.
21. Melvyn Jacobson prepared renovation design drawings in his official capacity as an
Architectural Supervisor for DGS.
a. Jacobson's design left one wall at least 120 feet in length with nothing on it.
1. This was not immediately accessible to the general public.
b. This wall was located in a secured area of Lottery headquarters.
c. Jacobson's design work was supervised by Mark Schwager.
22. During design phase of the Lottery renovation project, Schwager and Jacobson
discussed various options to finish the 120 foot wall.
a. Both agreed that a mural depicting Pennsylvania was a good idea for the
unfinished wall.
b. Jacobson asked Schwager for an estimate as to costs of such a mural since
Schwager had previously painted a mural.
c. Schwager provided Jacobson's with an estimate of $10,000.
23. Neither Lottery officials nor Crans had any involvement with the mural design work
completed by Melvyn Jacobson and Mark Schwager.
a. Plans for the mural were created by Schwager and Jacobson.
b. Lottery did not request a mural as part of the project.
24. The $10,000 estimate for the mural was included in the project cost and budget
developed by Jacobson.
Jacobson, 00- 032 -C2
Page 6
25. The project expense summaries dated September 18, 1998, and October 18, 1998,
which included the mural costs were reviewed and approved by Schwager and
Jacobson in their official capacities as DGS employees.
a. Jacobson participated in preparing the pricing while Schwager approved
Jacobson's work.
26. During the summer and fall months of 1998 Schwager and Jacobson discussed the
Lottery project during the normal course of business.
a. Schwager inquired as to whether Cumberland Management ever selected a
vendor to paint the mural.
b. As of October 1998 no vendor was selected.
27. By November 1998 Schwager became more interested in painting the mural.
a. Jacobson and Schwager had previously discussed Schwager doing the job.
28. On or about November 12, 1998, Schwager approached Robert Glenn seeking
permission to paint the mural for the Lottery renovation project and receive
compensation for the same.
a. Schwager did not inform Glenn that he was going to enter into a contract
with Cumberland Management to paint the mural.
b. Schwager did not advise Glenn that he and Jacobson had originated the
concept of the mural as part of their office's duties.
c. Glenn would not have granted permission to Schwager's request if
Schwager had informed him that he would be contracting with Cumberland
Management.
d. Glenn took Schwager's request to Nora Doyle, Assistant Counsel, DGS for
approval.
29. Schwager did not submit a supplemental employment request seeking specific
approval to paint the mural.
a. Schwager believed the request approved in 1997 by McCarty would include
the painting of the mural.
30. On November 12, 1998, Nora Doyle, Assistant Counsel DGS, provided advice via
e -mail to Bob Glenn, Mark Schwager's supervisor, relating to Schwager painting the
mural. Doyle's' advice to Glenn contained the following information:
a. "I spoke to Gary (Ankerbrandt). He said that it would be ok for Mark to do
the work so long as he is not being paid by DGS to do it. It's a close call, but
so long as it really isn't the type of work that he does normally, and it is
another agency paying for it, Gary said to tell him to go ahead."
31. At the time she issued the e-mail advice, Norma Doyle believed that Schwager was
going to perform paint work for the Department of Revenue, not a private contractor
dealing with the state.
a. Doyle did not know that the paint work was part of a renovation project
Schwager was overseeing in his official capacity as a state employee.
Jacobson, 00- 032 -C2
Page 7
b. Schwager did not advise Doyle of his oversight role in the Lottery project.
c. Doyle was unaware that Melvyn Jacobson was going to be involved with the
mural painting at all.
d. Doyle did not provide any legal advice to Jacobson.
32. Schwager and Jacobson, in their official capacities as DGS employees were
responsible for the review and approval of project cost estimates prior to the
commitment of any state funding.
33. The Department of Revenue approved funding for the Lottery Revenue project in an
amount of $640,094.00 on or about July 3, 1999.
34. On July 6, 1999, DGS, as agent for the Department of Revenue, entered into lease
amendment ID #99069 -3 with Heartland Properties Limited Partnership t/a
Cumberland Management.
a. The purpose for the lease amendment was to provide funding for
renovations to Lottery's leased headquarters and extend the lease for an
additional five (5) year period commencing on December 1, 2001.
35. Completion of the wall mural was not needed until all construction was completed.
36. A project expense summary included as part of the lease amendment dated July 6,
1999, contained a budgeted amount of $10,000 for a mural.
a. This is the estimated mural cost developed by Schwager and Jacobson.
37. Project funding came primarily from the Department of Revenue with Cumberland
Management contributing a portion.
a. Projected project financial liability was:
1. Department of Revenue: $640,093.00
2. Cumberland Management: $173,815.00
38. Cumberland Management's contribution to the project included funding for general
painting, carpeting and ceiling installation.
a. General painting did not cover or include the graphic wall mural.
39. Department of Revenue funding was used for all other portions of the project
including the graphic wall mural.
40. Schwager and Jacobson both had the responsibility of reviewing projected expense
summaries and design layout in their official capacities as employees of DGS's
Bureau of Engineering and Architecture.
41. The design layout which was the basis for the renovation work and lease
amendment with cost estimates approved by the Commonwealth and Cumberland
Management in June 1999 was prepared by Jacobson and reviewed and approved
by Schwager.
a. Jacobson's design and cost estimates were prepared in his official capacity
Jacobson, 00- 032 -C2
Page 8
as a DGS employee.
b. Schwager oversaw and approved Jacobson's work as his immediate
supervisor on the project.
c. The layout included the mural and associated costs of $10,000.
42. The renovation work began in July 1999 and lasted until approximately May 2000.
43. Each phase of the project was monitored by DGS's Bureau of Engineering and
Architecture.
a. Melvyn Jacobson had supervisory responsibility over the project's progress.
b. Schwager had the ultimate responsibility for the Architectural Design
Division of the Bureau of Engineering monitoring role in the Lottery
renovation project.
c. Periodic reports were submitted by Architectural Design Division's
monitoring the project.
44. On March 11, 1999, Schwager authored a memo to Lottery Executive Director
Daniel Cook advising that Melvyn Jacobson would not be able to continue on the
project.
a. Schwager advised that the project would be directly managed by him with
support from Jacobson as required.
45. Although Schwager advised that Jacobson would not be directly involved with the
Lottery project, he continued to delegate responsibility for the project to Jacobson.
46. Jacobson continued to be directly involved with the project during the construction
phase but avoided personal dealings with representatives of Lottery.
a. Jacobson approved cost estimates.
b. Jacobson reviewed and approved Brenda DiSante's work including
architectural field reports prepared by DiSante between July 8, 1999, and
May 3, 2000.
c. Jacobson continued to deal directly with Brett Crans, the project general
contractor.
47. Brenda DiSante, Architectural Designer, DGS, was assigned to oversee the day -to-
day operations of the project around May or June 1999.
a. DiSante completed architectural field reports based on project meetings and
site visits on either a weekly or bi- weekly basis between July 8, 1999, and
May 3, 2000.
b. DiSante provided Jacobson and Schwager with regular project updates.
1. DiSante's immediate supervisor was Jacobson.
2. Jacobson had the responsibility to approve all actions taken by
DiSante.
Jacobson, 00- 032 -C2
Page 9
48. Jacobson sent or received the following pieces of correspondence relating to the
project after March 11, 1999.
a 06/02/99: Received fax transmission from Crans regarding revised
construction schedule.
b 06/02/99: Sent memo to fifteen (15) recipients, including Schwager,
detailing construction schedule.
c. 06/10/99: Sent memo to sixteen (16) recipients including Schwager
identifying the modified construction schedule.
d. 06/13/99: Sent memo to Jennings Ward approving construction costs
and construction schedule.
e. 06/14/99: Sent memo to Jennings Ward regarding budget adjustment.
f. 07/08/99: Received fax transmission from Brett Crans regarding need for
Labor & Industry approved plans for permit for demolition to be
issued by township.
g. 7/22/99: Received memo from Brett Crans regarding conduit drops for
telephone and computer cabling.
h. 08/02/99: Received memo from Brett Crans regarding need for
authorization from Architectural Design Division to allow
general contractor to close up walls left open for conduit drops.
08/30/99: Received memo from Brett Crans regarding change orders
including added charges of $2,366.00 to install MDO board on
mural wall.
j. 09/13/99: Received memo from Brett Crans regarding breakdown of
Cumberland Managements project contribution of $173,815.
k. 10/04/99: Received memo from Brett Crans detailing the completion of
Phase I of the project.
01/14/00: Received memo from Brett Crans regarding credit for change
order to delete the wall mural from the project.
49. The 06/14/99 Jacobson memo to Jennings Ward (Finding No. 48(e)), DGS Real
Estate Division, provided as follows:
"I have reviewed the additional costs indicated by Brett Crans of Cumberland
Management and am in agreement with the additional charges. I have attached a
signed budget adjustment sheet and will send you the hard copy through the mail."
a. Attached budget adjustment dated 06/09/99 increases:
Phase I Temporary Electric $ 6,120.92
Phase 11 Ramp Access $10,364.26
Phase IV Floor $ 6,767.82
$23,253.00
b. The budget adjustment was signed and approved by Melvyn Jacobson,
Architectural Designer Supervisor 06/14/99.
Jacobson, 00- 032 -C2
Page 10
c. These approvals resulted in the final approval of amendment 3 to lease No.
99069 -3 on July 6, 1999.
50. In or around July 1, 1999, following Jacobson's participation in the approval of the
lease amendment and the initiation of the project, Schwager and Jacobson
discussed the mural aspect of the project.
a. Schwager discussed with Jacobson the vendor to be selected.
b. Schwager informed Jacobson that he was interested in painting the mural.
51. Crans delegated authorization in July of 1999 to Jacobson to secure the services of
a vendor to paint the mural.
a. Brett Crans obtained bids for all other portions of the project with the
exception of the wall mural on behalf of Cumberland Management.
b. Crans, as Property Manager for Cumberland Management, served as the
general contractor on the project.
52. Around July 1999, following his meeting with Schwager, Jacobson informed Brett
Crans that he knew an employee who could handle the task.
a. Jacobson did not initially identify Mark Schwager as the employee who
would be able to handle the task.
53. Jacobson informed Crans that the mural could be traced, painted in sections and
assembled like a puzzle.
a. Jacobson discussed using MDO board for the mural to be painted on.
54. Cumberland Management purchased thirty -nine (39) pieces of MDO board from
Home Depot, 6000 Carlisle Pike, Mechanicsburg, PA 17055, on July 15, 1999.
a. Cumberland Management bore the entire cost of the MDO board which
totaled $450.50 delivered.
55. Sometime around July 15, 1999, Jacobson and Schwager again discussed
Schwager starting the mural design.
a. At that time, neither Schwager nor Jacobson had any formal agreements
with Cumberland Management to paint the mural.
56. Jacobson did not solicit bids for any potential contractor for the mural portion of the
project.
a. Jacobson was aware that the mural estimated costs would be at least
$10,000.
57. Project art associated with DGS projects is normally handled by way of request for
proposals submitted by artists.
a. DGS employees do not perform art design work as part of their normal job
functions.
58. Between July 15, 1999, and October 5, 1999, Jacobson informed Crans that he
Jacobson, 00- 032 -C2
Page 11
selected Mark Schwager to paint the mural.
59. On October 20, 1999, Brett Crans, as agent for Cumberland Management, accepted
a written proposal submitted by G. Mark Schwager, 821 Ohio Avenue, Lemoyne,
Pennsylvania 17043, to paint a mural eight (8) feet high by 120 feet long.
a. Terms of the contract provided for Schwager to be compensated $10,000 to
paint the mural away from the construction zone, have it completed and
ready to install at the end of phase four of the project and handle any
touchup work required as part of the installation.
b. Cumberland Management was responsible for providing MDO board for the
mural to be painted on and physically attaching the painted mural panels to
the wall.
c. A $3,000 retainer fee was required upon Cumberland Management's
acceptance of the proposal.
d. Melvyn Jacobson prepared this contract for Cumberland Management on
Schwager's behalf.
60. Schwager informed Crans that he had approval to paint the mural from Schwager's
supervisor, Robert Glenn.
61. Between July 1999 and November 1999, both Mark Schwager and Brenda DiSante
performed mural design sketches on state time in the offices of Engineering and
Architecture.
a. Schwager spent approximately seven (7) days tracing the mural on state
time.
1. Schwager was compensated by the Commonwealth at a rate of
$36.62 per hour during this period.
2. Schwager received gross compensation from the State in the amount
of $1,922.55 for the time he spent tracing the mural on State time.
a. Gross compensation based on 52.50 hours at $36.62 per hour.
b. DiSante spent approximately two (2) days adjusting
Schwager's design to scale.
1 DiSante's hourly wage at the time was $17.31.
2. DiSante received gross compensation in the amount of $259.65 for
15 hours she spent adjusting the drawing to scale on state time.
62. On November 3, 1999, Cumberland Management issued check number 25189 in
the amount of $3,000 to G. Mark Schwager.
a. This payment represented the retainer required for the mural contract
accepted by Crans on October 20, 1999.
b. Schwager deposited this payment into his personal account at the
Pennsylvania State Employees Credit Union on November 9, 1999.
63. At the time Schwager advised Jacobson he was interested in painting the mural,
Jacobson, 00- 032 -C2
Page 12
Schwager informed Jacobson he would need help.
a. Jacobson agreed to assist with the project.
64. On November 9, 1999, Schwager issued personal check number 4254 in the
amount of $1,000 from his PSECU account to Melvyn Jacobson.
a. A notation in the memo portion of the check states "partial on mural lottery."
b. Jacobson deposited this payment into his National Penn Bank personal
account on or about November 11, 1999.
65. On December 8, 1999, Michael E. Adams, Director, Bureau of Real Estate, DGS,
sent a notice to Brett Crans advising Cumberland Management to suspend work on
the mural portion of the project.
a. No specific reason for this was given.
66. On December 9, 1999, Barry T. Drew, Deputy Secretary for Administration,
Department of Revenue, sent a memo to Michael E. Adams, Director, Bureau of
Real Estate, DGS, requesting that the $10,000 amount budgeted for the mural at
Lottery headquarter be cancelled.
a. No specific reason is given for the change other than the department does
not wish to have this wall mural."
67. On December 14, 1999, Michael E. Adams, Director, DGS, Bureau of Real Estate,
sent official notice to Brett Crans advising him that the mural was canceled from the
project.
a. No specific reason for the cancellation was given.
68. On July 31, 2000, Schwager received a written reprimand from Merle H. Ryan,
Deputy Secretary for Public Works for his role in obtaining the contract with
Cumberland Management to paint the mural.
69. As part of the aforementioned disciplinary action, Schwager was directed to
repay any financial gain he received after expenses to the Department of
Revenue.
70. Schwager issued a cashier's check dated January 8, 2001, from PSECU in the
amount of $1,488.00 to the Commonwealth of PA, Department of Revenue.
a. Schwager returned this money to the State through Gregory Santoro,
Esquire, Chief Counsel, DGS.
71. Jacobson did not reimburse the Commonwealth the $1,000.00 he received from
Schwager for his role in the mural project.
72. Schwager contacted Jacobson about returning the $1,000.00 paid to Jacobson.
a. Jacobson refused.
73. Jacobson thereafter terminated his employment with the Commonwealth.
74. Jacobson believed that he was acting in accord with all applicable laws and with the
approval of DGS officials, in relation to the lottery project, including the painting of
Jacobson, 00- 032 -C2
Page 13
the mural.
75. Jacobson believed that any action in violation of the Ethics Law was unintentional.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Melvyn Jacobson, hereinafter
Jacobson, has been a public employee 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, Act 93 of 1998, Chapter 11, 65 Pa.C.S.
§1101 et seq., which Acts are referred to herein as the "Ethics Act."
The allegation is that Jacobson violated Section 1103(a) of the Ethics Act when he
recommended that a mural be painted in the Pennsylvania State Lottery Building,
participated in the drafting of plans, determined the cost for the mural, and received
compensation for services related to the painting of the mural.
Pursuant to Section 3(a)/1103(a) of the Ethics Act, a public official /public employee
is prohibited from engaging in conduct that constitutes a conflict of interest.
The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as
follows:
Section 2/1102. 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. "Conflict" or "conflict of interest" 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. § 402/65 Pa.C.S. §1102.
Section 3(a)/1103(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.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are reproduced above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
Jacobson was employed as an Architectural Manager in the Bureau of Engineering
and Architecture (BEA) with the Department of General Services (DGS) from December
15, 1997 until May 19, 2000. As an Architectural Manager, Jacobson's duties included
supervising a group of architects engaged in the planning and design of new construction
Jacobson, 00- 032 -C2
Page 14
and alterations to existing structures. Jacobson's immediate supervisor was Mark
Schwager (Schwager), Chief of the Architectural Design Division (ADD).
Between 1998 and 2000, BEA became involved with a renovation project for the
Lottery Bureau (LB) which is a division of the Pennsylvania Department of Revenue (PDR).
The LB is housed in Middletown in premises leased from Heartland Properties, a limited
partnership trading as Cumberland Management (CM).
When Brett Crans (Crans), the property manager of CM, contacted LB officials in
March of 1998 regarding the possibility of the lease renewal, it was determined that the
property would need to be renovated if LB would continue there and renew the lease.
Following discussions between LB employees and CM, a decision was made to seek
design changes from BEA for the layout of the building.
On January 14, 1998, the Director of Administration of LB submitted a work request
to DGS, which entailed the renovation of the office space for LB. Although it is unusual for
ADD to design layouts for Commonwealth space in privately owned buildings, DGS
became involved because Robin Costenbader- Jacobson, the Deputy Executive Director of
LB and spouse of Melvyn Jacobson, requested such involvement. Schwager was
assigned the project, which included conducting a survey and cost estimate for the LB
renovations. Because Jacobson's spouse was involved in the project, Schwager assigned
Jacobson as the project supervisor to conduct the survey and provide the cost estimates.
Jacobson, with the supervision of Schwager, completed the renovation design
drawings in April of 1998 as Architectural Supervisor for DGS. Jacobson's design included
one barren wall, which was at least 120 feet in length. Schwager and Jacobson discussed
various options to finish the 120 -foot wall and decided that a mural depicting Pennsylvania
would be a viable option. Jacobson asked for a cost estimate of a mural from Schwager
who provided a rough estimate of $10,000. The $10,000 estimate for the mural was
included in the project cost developed by Jacobson. Project expense summaries including
the mural costs were prepared by Jacobson and reviewed and approved by Schwager in
their official capacities as DGS employees.
During the summer and fall of 1998, Schwager and Jacobson discussed the LB
project during the normal course of business. As of October 1998, CM had not selected a
vendor to paint the mural. In November 1998, Schwager approached his supervisor,
Bureau Director Robert Glenn (Glenn), for permission to paint the mural for the LB
renovation project and receive compensation. Schwager did not inform Glenn that he was
going to contract with CM to paint the mural. Had Glenn known this fact, he would not
have granted his permission to Schwager. An assistant counsel at DGS gave a qualified
approval as to Schwager's request, being unaware that Schwager was going to perform
the work for a private contractor rather than the Commonwealth and also unaware that
Jacobson was going to be involved with the mural painting.
Both Schwager and Jacobson, as DGS employees, were responsible for the review
and approval of project cost estimates for the LB project prior to the commitment of any
Commonwealth funding. After PDR approved funding for the LB project in the amount of
approximately $640,000 in July of 1999, DGS, as agent for PDR, entered into a lease with
CM, the purpose of which was to provide funding for the renovations to LB's leased
headquarters and extend the lease for a five year period. The completion of the wall mural
was not needed until all construction was completed. The project expense summary
contained a budget in the amount of $10,000 for the mural, which cost was included in
PDR's financial liability for the project. Jacobson, as the lead architect, had primary
responsibility for the project expense summaries and design layout, and over the project's
progress while Schwager, as Jacobson's immediate supervisor, had supervisory
responsibility over Jacobson's work. The renovation project began in July of 1999 and
ended in May of 2000. Each phase of the project was monitored by BEA.
Jacobson, 00- 032 -C2
Page 15
In March of 1999, Schwager wrote a memo to LB Executive Director Daniel Cook
(Cook) advising that Jacobson would not be able to continue on the project and that
Schwager would manage the project directly with support from Jacobson as required.
However, Schwager continued to delegate responsibility to Jacobson and Jacobson
continued to have direct involvement with the project during the construction phase by
approving cost estimates resulting in approval of the final lease, reviewing DGS
Architectural Designer Brenda DiSante's (DiSante) work, and communicating directly with
Crans. Jacobson, however, avoided personal dealings with representatives of LB.
In July 1999, Schwager and Jacobson again discussed the mural project. After
Schwager and Jacobson discussed the vendor for the mural, Schwager stated that he was
interested in painting the mural. In July of 1999, Crans, CM's Property Manager and the
General Contractor for the project, delegated the authorization to Jacobson to secure the
services of a vendor to paint the mural. Jacobson informed Crans that he knew an
employee who could handle the task, but did not initially identify Schwager as that
employee. After it was determined that the mural could be traced, painted in sections, and
assembled like a puzzle, Jacobson discussed using MDO board with Crans. The MDO
board was obtained at a cost of $450, which was paid by CM. Jacobson and Schwager
had further discussions regarding Schwager being involved with the mural design, even
though there was no formal agreement with CM as to painting the mural.
Although project art associated with DGS normally requires proposals submitted by
artists, Jacobson did not solicit bids for the mural project even though he was aware that
the cost of the mural would at least be $10,000. Jacobson informed Crans that he
selected Schwager to paint the mural. On October 20, 1999, Crans, as agent for CM,
accepted a written contract prepared by Jacobson and submitted by Schwager to paint a
mural 8' x 120' for a fee of $10,000. Schwager informed Crans that he had approval to
paint the mural from his supervisor, Glenn.
Between July and November of 1999, Schwager and DiSante performed mural
design sketches on Commonwealth time in BEA offices. The details of such work activities
are set forth in Fact Finding 61.
In November of 1999, CM issued a $3,000 retainer check to Schwager as per the
mural contract. Schwager informed Jacobson that he needed help with the mural painting
project. Jacobson agreed to assist with the project. On November 9, 1999, Schwager
issued a check in the amount of $1,000 to Jacobson with a notation, "partial on mural
lottery." The check issued to Jacobson by Schwager was an advance for future layout
work by Jacobson. Jacobson deposited the $1,000 payment into his personal bank
account on November 11, 1999.
In early December of 1999, Michael Adams (Adams), the Real Estate Bureau
Director of DGS sent notice, without specifying any reason, to Crans advising CM to
suspend work on the mural. Shortly thereafter, the Deputy Secretary for Administration of
PDR wrote to Adams requesting that the $10,000 budgeted for the mural be canceled,
stating, "[T]he department does not wish to have this mural." Adams then sent official
notice to Crans advising that the mural was canceled as part of the project.
Schwager received a written reprimand from the Director of Public Works for his
role in obtaining the contract with CM to paint the mural. At the direction of the Director of
Public Works to repay any financial gain Schwager received to PDR, Schwager, on
January 8, 2001, issued a check in the amount of $1,488 to PDR. Jacobson did not
reimburse the Commonwealth the $1,000 he received from Schwager for his role in the
mural project and subsequently terminated his employment with the Commonwealth.
Jacobson believed that he was acting in accord with all applicable laws and with the
Jacobson, 00- 032 -C2
Page 16
approval of DGS officials. Jacobson believed that any action he took in violation of the
Ethics Law was unintentional.
Having highlighted the Stipulated Findings and issues before us, we shall now apply
the Ethics Act to determine the proper disposition of this case.
The parties' Consent Agreement sets forth a proposed resolution of the allegations.
The Consent Agreement proposes that this Commission find that: Jacobson violated
Section 1103(a) of the Ethics Act by recommending that a mural be painted in the
Pennsylvania State Lottery Building, participating in the drafting of mural plans,
determining costs and the amount to be budgeted for the mural, selecting the vendor to
paint the mural, and receiving compensation for services related to painting of the mural;
and that Jacobson will make a payment of $1,500 through this Commission to the
Commonwealth of Pennsylvania within 30 days of the date of the mailing of this Order.
In applying 3(a)/1103(a) of the Ethics Act to the instant matter, there were numerous
uses of authority of office on the part of Jacobson. Jacobson, as Architectural Manager for
DGS, and project supervisor, was directly involved in the LB renovation project. Such
involvement entailed various aspects of the project such as conducting the survey;
providing, reviewing, and approving project cost estimates; completing the renovation
design drawings; and reviewing architectural design work by another DGS architect.
As to the mural painting project, Jacobson prepared the renovation design
drawings, which included the 120 -foot long barren wall located within LB headquarters.
After discussing with Schwager various options to finish the 120 -foot wall, Jacobson and
Schwager settled upon the idea of a mural depicting Pennsylvania. During discussions
between Jacobson and Schwager in late 1998, Schwager expressed an interest in painting
the mural and advised Jacobson that he would need help with that aspect of the project.
Jacobson agreed to assist Schwager. Jacobson obtained a $10,000 cost estimate from
Schwager and included that cost into the project budget he developed. The project
budget, design layout, and expense summaries were prepared and reviewed by Jacobson
in his official capacity as a DGS employee. Even after March 1999, when Schwager
advised the LB Executive that Jacobson would no longer be directly involved in the project,
Jacobson continued to approve cost estimates and communicate directly with Crans and
Schwager regarding the mural. Between July and October 1999, Jacobson informed
Crans that he had selected Schwager to paint the mural and proceeded to prepare the
contract providing for CM to pay Schwager $10,000 to paint the mural. In November 1999,
both Schwager and Jacobson received compensation for their roles in the mural project.
Jacobson received $1,000 as "partial payment on mural lottery," which he deposited into
his personal bank account on November 11, 1999. Jacobson refused to reimburse the
Commonwealth the $1,000, based upon his belief that he was, at all times, acting
accordingly and with the approval of DGS officials.
Jacobson's actions with regard to the mural, particularly his role in recommending
that a mural be painted in the LB Building, drafting plans related to the mural, determining
costs to be budgeted for the mural, and selecting the vendor to paint the mural constitute
uses of authority of office by Jacobson. See, Juliante, Order 809. Such uses of authority
resulted in a pecuniary benefit to Jacobson consisting of the $1,000 payment he received
from Schwager for his role in the mural project. The pecuniary benefit was private
because there was no authorization in law for Jacobson to receive such a payment. See,
Akerly, Order 976. Accordingly, Jacobson violated 3(a)/1103(a) of the Ethics Act when he
recommended that a mural be painted in the LB Building, drafted plans and determined
costs to be budgeted for the mural, selected the vendor to paint the mural, and received
$1,000 for his role in the mural project.
We determine that the Consent Agreement submitted by the parties sets forth the
proper disposition for this case, based upon our review as reflected in the above analysis
Jacobson, 00- 032 -C2
Page 17
and the totality of the facts and circumstances. Accordingly, Jacobson is directed make a
payment of $1,500 through this Commission to the Commonwealth of Pennsylvania within
30 days of the date of the mailing of this Order. Compliance with the foregoing will result
in the closing of this case with no further action by this Commission. Noncompliance will
result in the institution of an order enforcement action.
IV. CONCLUSIONS OF LAW:
1. Jacobson, as an Architectural Manager in the Pennsylvania Department of General
Services, Bureau of Engineering and Architecture, was a public employee subject to
the provisions of Act 9 of 1989/Act 93 of 1998.
2. Jacobson violated Section 3(a)/1103(a) of the Ethics Act when he recommended
that a mural be painted in the Lottery Building, drafted plans and determined costs
to be budgeted for the mural, selected the vendor to paint the mural, and received
$1,000 for his role in the mural project.
In Re: Melvyn Jacobson
ORDER NO. 1223
File Docket: 00- 032 -C2
Date Decided: 11/15/01
Date Mailed: 11/30/01
1 Jacobson, as an Architectural Manager in the Pennsylvania Department of General
Services, Bureau of Engineering and Architecture, violated Section 3(a)/1103(a) of
the Ethics Act when he recommended that a mural be painted in the Lottery
Building, drafted plans and determined costs to be budgeted for the mural, selected
the vendor to paint the mural, and received $1,000 for his role in the mural project.
2. Per the Consent Agreement of the parties, Jacobson is directed to make payment in
the amount of $1,500 payable to the Commonwealth of Pennsylvania and forwarded
to the Pennsylvania State Ethics Commission within 30 days of the mailing date of
the final adjudication in this matter.
a. Compliance with the foregoing will result in the closing of this case with no
further action by this Commission.
b. Non - compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
DANEEN E. REESE, CHAIR