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HomeMy WebLinkAbout1263R HawesIn re: James Hawes, III File Docket: X -ref: Date Decided: Date Mailed: 98- 046 -C2 Order No. 1263 -R 2/27/03 3/3/03 Before: Daneen E. Reese, Chair Louis W. Fryman, Vice Chair John J. Bolger Frank M. Brown Susan Mosites Bicket Donald M. McCurdy Michael Healey The State Ethics Commission received a request for reconsideration on January 8, 2003, with respect to Order No. 1263 issued on December 16, 2002. 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 fora 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 is final and shall be made available with Order No. 1263 as public documents on the fifth (5th) business day following the date of issuance of this Order. Hawes, 98- 046 -C2 Page 2 DISCUSSION On December 16, 2002, we issued Hawes, Order No. 1263, following our reviewofthe record in this case. The allegations were that James Hawes, as President and CEO of the Philadelphia Gas Works (PGW) violated Section 3(a)/1103(a) of the Ethics Act when he: used the authority of his position for private pecuniary benefits by accepting gifts from the Transcontinental Gas Pipeline Corporation in the form of all expense paid trips to golf tournaments; claimed and received reimbursement for expenses in excess of moving expenses approved by contract; used PGW funds to make a contribution to his alma mater; and billed personal expenses for himself and his family to PGW. The parties filed a Stipulation of Findings and a Consent Agreement. After review and due consideration, we accepted the Consent Agreement and held that: 1. Hawes, as President and CEO of the Philadelphia Gas Works for the relevant time period, was a public employee subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Hawes violated Section 3(a)/1103(a) of Ethics Act when he used his position to obtain reimbursement for relocation expenses ($28,677) in excess of the $90,000 provided for in his agreement of employment. 3. Hawes did not violate Section 3(a)/1103(a) of the Ethics Act when he received reimbursements for meals as there was insufficient evidence to establish that such expenses were not related to official PGW business. 4. Hawes violated Section 3(a)/1103(a) of the Ethics Act when he received reimbursements for miscellaneous expenses in the amount of $5,019.09 that were personal in nature including but not limited to fitness club memberships, transportation to his college alma mater and miscellaneous personal expenses. 5. Hawes violated Section 3(a)/1103(a) of the Ethics Act when he used his position to donate $5,000 of PGW/PFMC funds to his alma mater, when such donation was unrelated to any official business of PGW /PFMC. 6. Hawes violated Section 3(a)/1103(a) of the Ethics Act when he received reimbursement in the amount of $1,676 for transportation, lodging and hospitality expenses relating to his attendance at a golf outing in Florida and at the Masters Golf Tournament in April of 1996, which expenses were paid for by Transcontinental Gas Pipeline Corporation (Transco) which was then negotiating the renewal of a contract relating to certain services. 7. Hawes did not violate of Section 3(a)/1103(a) of the Ethics Act when he received reimbursement for transportation, lodging and hospitality expenses relating to his attendance at the 1997 Master's Golf Tournament, which expenses were paid for by Transco, a business with which PGW had an ongoing contract, as such reimbursement occurred at a time when no current contract negotiations or renewals were ongoing. Following the issuance of Order No. 1263, Respondent filed a Petition for Reconsideration. Respondent does not object to the result but merely the phraseology of one paragraph in the Order wherein we made commentary as to the Respondent's conduct. Respondent asserts that the paragraph is unfair and unjust because he did not believe that he was a public official subject to the Ethics Act until the final decision of the Supreme Court. Hawes, 98- 046 -C2 Page 3 Since the private sector has different corporate ethics from the public sector, Respondent asserts that he acted as if he were a Chief Executive Officer of a private company. The Investigative Division filed an Answer in Opposition to the Reconsideration request. The Investigative Division raises the following arguments in support of its Answer: although there was no udicial precedent regarding whether an individual in Respondent's position was a public official, there was Commission precedent which is accorded substantial weight under the case law; although Respondent seems to argue ignorance of the law, that is not an excuse; despite Respondent's claim that he acted in accordance with corporate or private sector rules of conduct, the record shows that he acted in disregard of PGW's policies and procedures; and, although the State Ethics Commission regulations allow for the grant of reconsideration if certain criteria are met, the Respondent failed to meet such criteria. No argument has been raised by Respondent 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 provided which would lead to a reversal or modification of the Order. In fact, Respondent has not even alleged any material error of fact, law or new evidence. Rather, Respondent's sole basis for reconsideration is that he objects to the phraseology of one paragraph in the adjudication. Respondent has failed to meet his burden of proof to establish any need for reconsideration. The Petition for Reconsideration is denied. In Re: James Hawes, III RECONSIDERATION ORDER NO. 1263 -R 1. The Petition for Reconsideration of Hawes, Order No. 1263, is denied. BY THE COMMISSION, Louis W. Fryman, Chair File Docket: 98- 046 -C2 Date Decided: 2/27/03 Date Mailed: 3/3/03