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HomeMy WebLinkAbout1049 Brooks (2)In re: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 David Brooks File Docket: X -ref: Date Decided: Date Mailed: 96- 050 -C2 96- 067 -C2 Order No. 1049 -R 8/14/97 8/26/97 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn Boyd E. Wolff Julius Uehlein The State Ethics Commission received a request for reconsideration on July 9, 1997, with respect to Order No. 1049 issued on June 11, 1997. Pursuant to Section 21.29 of the Regulations of the Commission, the discretion of the State Ethics Commission to grant reconsideration is properly invoked as follows: §21.29. Finality: reconsideration. (b) Any party may ask the Commission to reconsider an order or opinion within 15 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (c) A request for reconsideration filed with the Commission will delay the public release of an order, but will not suspend the final order unless reconsideration is granted by the Commission. (d) A request for reconsideration may include a request for a hearing before the Commission. (e) Reconsideration may be granted at the discretion of the Commission if: (1) A material error of law has been made. (2) A material error of fact has been made. (3) New facts or evidence are provided which would lead to reversal or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. 51 Pa. Code §21.29(b), (c), (d), (e). This adjudication of the Commission is hereby issued which sets forth the Discussion and Reconsideration Order. This Reconsideration Order and Order 1049 are final and shall be made available as public documents on the fifth (5th) business day following the date of issuance of this Order. Brooks, 96- 050- C2/96- 067 -C2 Page 2 DISCUSSION On June 11, 1997, we issued Brooks, Order No. 1049, following our review of the record in the case. The allegation was that Brooks, as Superintendent of the Vanport Township Municipal Authority, violated Section 3(a) of the Ethics Law when he used the authority of his office for a private pecuniary benefit by using the facilities of the Authority for storage of personal items including but not limited to a Jetski and trailer, boat and trailer and a personal automobile and that he violated Section 8(k) of the Ethics Law when he disclosed or acknowledged to other persons, information relating to a complaint, preliminary inquiry and investigation before the Commission involving Dana Lengyel, an employee of the Vanport Township Municipal Authority. In applying the allegation to the facts of record, we found that: 1. Brooks did not violate Section 3(a) of Act 9 of 1989 regarding the storage of a car and boat with trailer at the VTMA garages in that such activity began prior to the enactment of Act 9 of 1989. 2. Brooks violated Section 3(a) of Act 9 of 1989 when he stored a Jetski with trailer at the VTMA garages without Board approval which constituted a private pecuniary benefit consisting of storage costs which Brooks did not have to pay. 3. Brooks did not violate Section 8(k) of Act 9 of 1989 regarding the disclosure of certain confidential proceedings as to VTMA officials in that the record did not establish any confidentiality breach as to Dana Lengyel. 4. Restitution in the amount of $816.20 was warranted as to the violation of Section 3(a) of Act 9 of 1989 regarding the storage of the Jetski and trailer. Following the issuance of Order No. 1049, Brooks timely filed a Petition for Reconsideration as to our finding of a violation of Section 3(a) as to the storage of the Jetski and trailer. The Investigative Division filed an Answer with New Matter to the Petition for Reconsideration arguing that Brooks provided no legal or factual errors to meet the regulatory requirement for the exercise of our discretion to grant reconsideration. Brooks has raised fourteen points in support of his request for reconsideration. Brooks' first argument is that if there were any violation of the Ethics Law, it was de minimis. As we noted in Schweinsberq, Order 900, the de minimis exclusion is determined on a case by case basis. In this case we did not find the pecuniary benefit to be de minimis. Brooks' next three arguments allege he had authorization to store his personal property: he was given permission by prior VTMA Boards to store personal items in surplus VTMA garage space so long as his personal items did not displace VTMA equipment; the Board's permission was not limited to the car and boat /trailer, but included other personal items such as the Jetski, which VTMA Board Members knew were present in the garage areas along with items belonging to other employees; and neither Brooks nor any member of the VTMA Board considered that the Board should Brooks, 96- 050- C2/96- 067 -C2 Page 3 act formally to approve the storage arrangement until it was brought to their attention by the State Ethics Commission Investigator. The record factually established that there was no Board action to authorize storage for the Jetski and trailer. Brooks, Order No. 1049, Fact Finding 28. Brooks used his position to obtain a private pecuniary benefit for himself consisting of the cost of the storage of his personal property. Brooks in his fifth argument states that no one considered his use of surplus garage space to be income because the understanding was that Brooks' personal items would not displace VTMA equipment. Since Brooks did not have any out -of- pocket payments as to the storage of his personal property, his saving of such payments constituted a private pecuniary benefit. In his sixth argument, Brooks states that he does not consider that he received a pecuniary benefit from using surplus garage space because he would not have paid for commercial space. This argument is speculative and irrelevant since Brooks received a private pecuniary benefit by storing his personal property at VTMA without any payment for such storage. Brooks' seventh argument is that the VTMA Board could have formally approved the storage. Brooks asserts that there is no inherent conflict in the arrangement if it is disclosed through formal action at public meetings and that the only issues are whether part of the arrangement should have been formally adopted and, if so, whether failure to do so is a violation that is more than de minimis. This argument is pointless in that there was no Board approval of the storage of the Jetski and trailer for Brooks. The eighth argument proffered by Brooks is that after the State Ethics Commission Investigator raised the question, Brooks moved his personal items out of the surplus garage space and stored them at his own residence under tarps. Brooks asserts that if the garage storage were considered a pecuniary benefit, he would have chosen not to receive that benefit. This argument is speculative as to what Brooks might have done. Further, any actions by Brooks, after the fact, are irrelevant. Brooks' last five arguments relate to the value of the garage space. Brooks argues that the value assigned to the garage space in Order 1049 is based upon the most expensive storage facility in Beaver County which Brooks would not use because it is far from his home and more costly than other alternatives. Brooks states that storage at Gateway Commercial Storage, located closer to his residence, would cost $145 for six months and $36 for additional months for space to store the Jetski. Brooks states that this facility is heated and humidity - controlled and is better storage than the unheated garage space at VTMA. Brooks further states that outdoor storage at the Yacht Club in Fallston would cost $50 per season and the boat /trailer and Jetski would be at the river's edge. Brooks argues that it was an error to value the pecuniary benefit derived from the surplus storage based upon the most expensive commercial space. Brooks states that VTMA is not in the storage business, the space was surplus, and the space was not used by him for a pecuniary benefit. Brooks asserts that he did not value the storage space enough to pay for it himself. All of these arguments are premised on a challenge to the facts of record which are final and not subject to collateral attack at this procedural juncture. No argument has been raised by the Brooks which would meet the requisite standard for reconsideration. No material error of law has been established. No material error of fact has been established. No new facts or evidence has been Brooks, 96- 050- C2/96- 067 -C2 Page 4 provided which would lead to a reversal or modification of the Order. Brooks has failed to meet his burden of proof to establish any need for reconsideration. The Petition for Reconsideration is denied. In re: David Brooks File Docket: 96- 050 -C2 96- 067 -C2 Date Decided: 8/14/97 Date Mailed: 8/26/97 RECONSIDERATION ORDER NO. 1049 -R 1. The Petition for Reconsideration of Brooks, Order No. 1049, is denied. BY THE COMMISSION, 6 a t L v i u E a DANEEN E. REESE, CHAIR