HomeMy WebLinkAbout1307 AdamsIn Re: Richard Adams
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Daneen E. Reese
Frank M. Brown
Donald M. McCurdy
Michael Healey
Paul M. Henry
03 -020
Order No. 1307
12/17/03
12/29/03
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
investi9ation, the Investigative Division served upon Respondent written notice of the specific
allegation(s). Upon completion of its investi9ation 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 deemed waived. The record is complete.
Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11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.
Adams 03 -020
Page 2
I. ALLEGATION:
That Richard Adams, a (public official /public employee) in his capacity as a member
and president of Tullytown Borough Council, Bucks County, violated the following provisions
of the State Ethics Act (Act 93 of 1998) when he used the authority of his office for a private
pecuniary [benefit] including but not limited to participating in discussions and actions of
council regarding Waste Management, Inc., at a time when Adams was receiving gifts in
excess of $500 annually from Waste Management; and when he failed to disclose on
Statements of Financial Interests filed for calendar years 1998, 1999, 2000 and 2001 gifts
and /or actual value of gifts received from Penn Warner Club.
Section 1103. Restricted activities.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. §1103(a).
Section 2. 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
f
of ce 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 Pa.C.S. §1102.
Section 1105. Statement of financial interests.
(b) Required information. - -The statement shall include the
following information for the prior calendar year with regard to the
person required to file the statement.
(6) The name and address of the source and the
amount of any gift or gifts valued in the aggregate at $250
or more and the circumstances of each gift. This
paragraph shall not apply to a gift or gifts received from a
spouse, parent, parent by marriage, sibling, child,
grandchild, other family member or friend when the
circumstances make it clear that the motivation for the
action was a personal or family relationship. However, for
the purposes of this paragraph, the term "friend" shall not
include a registered lobbyist or an employee of a
registered lobbyist.
65 Pa.C.S. §1105(b).
Adams 03 -020
Page 3
II. FINDINGS:
1. The Investigative Division of the State Ethics Commission received a signed, sworn
complaint alleging that Richard Adams violated provisions of the State Ethics Act (Act
93 of 1998).
2. Upon review of the complaint the Investigative Division initiated a preliminary inquiry on
March 6, 2003.
3. The preliminary inquiry was completed within sixty days.
4. On May 12, 2003, a letter was forwarded to Richard Adams, by the Investigative
Division of the State Ethics Commission informing him that a complaint against him
was received by the Investigative Division and that a full investigation was being
commenced.
a. Said letter was forwarded by certified mail, no. 7000 1670 0005 2766 5026.
b. The domestic return receipt bore the signature of Richard Adams, with a
delivery date of May 15, 2003.
5. On October 23, 2003, a letter was forwarded to Richard Adams by the Investigative
Division of the State Ethics Commission informing him that the allegations contained in
the notice letter of May 5, 2003, were being amended.
a. Said letter was sent by certified mail no. 7002 3150 0000 6075 4082.
6. Periodic notice letters were forwarded to Richard Adams in accordance with the
provisions of the Ethics Law advising him of the general status of the investigation.
7. The Investigative Complaint was mailed to the Respondent on November 5, 2003.
8. Richard Adams has served as a member of Tullytown Borough Council since 1998.
9. As a member of council, Richard Adams has served as the president of council for
2002 and 2003.
a. Adams also serves on the Finance Committee, Personnel Committee and the
Fire Safety Committee.
10. Adams is retired, having previously worked for U.S. Steel, Levittown, PA.
11. The following delineates Adam's salary as a council member for calendar years 1998-
2002 as codified by 1099 tax forms issued to Adams by Tullytown Borough Council.
a. 1998 $1,875.00
1999 $1,875.00
2000 $1,875.00
2001 $1,875.00
2002 $2,447.92
12. Tullytown Borough hosts two (2) landfills operated by Waste Management, Inc.
a. The Tullytown landfills have been in operation since 1987.
b. Landfill 1 is known as Tullytown Resource Recovery.
Club Plan
1998
1999
2000
2001
2002
Fami Membershi.
, I I.I0
nMETI]
', A 1.10
, .10
, .10
Individual /Com. Membershi.
.430.00
.465.00
'.480.00
.505.00
.505.00
Individual Membershi.
.340.00
.375.00
.390.00
.415.00
.415.00
Junior Membershi.
.65.00
.75.00
.75.00
.75.00
.75.00
Boat /Sail b Foot
.3.50
.3.50
.3.50
.3.50
.3.50
Boat /Power b Foot
,2.00
,2.50
,2 .50
,2 .50
,2 .50
Motor 125 h.
EilEgajital
,1 .25
,1 .25
,1 .25
Moorin. Service
,100.00
,100.00
,100.00
,100.00
,100.00
Hunting Privilege
.530.00
.540.00
.540.00
.640.00
.640.00
Adams 03 -020
Page 4
1. The landfill has been wholly owned by Waste Management since its
inception.
2. Tullytown Resource Recovery encompasses 401.4 acres of approved
landfill space.
c. Landfill 2 is known as Grows Landfill.
1. The landfill has been wholly owned by Waste Management since its
inception.
2. Grows Landfill encompasses 456.6 acres of approved landfill space.
13. Waste Management's landfill property flanks an approximate 3,000 acre recreational
facility known as the Penn Warner Club.
a. Two thousand (2,000) acres of the Penn Warner Club is lake area.
b. Waste Management owns a total of 5,920 acres.
14. The Penn Warner Club had been privately owned by the Warner Corporation until
1991 when the club was sold to Waste Management, Inc.
a. The Penn Warner Club has been in existence for over thirty years.
b. Waste Management retained the name of Penn Warner Club to maintain the
club's popularity within the community of Bucks County.
15. The Penn Warner Club offers the following amenities for its members.
a. Hunting
Fishing
Boating
Camping
Outdoor Hiking
16. The Penn Warner Club offers respective members full access to the club, with specific
amenities, based upon a fee schedule which is listed below for years 1998 -2002.
17. Prospective members are granted a yearly membership card for club privileges for
whatever member plan they chose, upon receipt of payment to Penn Warner.
18. Penn Warner Club sends renewal membership applications to existing members on an
annual basis.
a. These renewals would be sent to existing members in the month of January.
19. Penn Warner Club, prior to ownership by Waste Management, would make a practice
Adams 03 -020
Page 5
of granting complimentary memberships to specific individuals.
20. Prior to 1991, the Penn Warner Club issued complimentary memberships which
included but was not limited to, the following:
a. Law enforcement officers
Elected officials
Business owners
Warner Company employees
Warner employee families
21. Complimentary memberships were approved by Mr. Frank Branagan, club consultant.
a. Branagan had been a consultant for Penn Warner from 1983 until 2002.
b. Branagan inherited the responsibility of issuing complimentary memberships
from executives of Penn Warner, prior to 1983.
c. All complimentary memberships from 1983 until 2002 were approved by Frank
Branagan.
22. Upon acquisition of the Penn Warner Club by Waste Management in 2001, the
complimentary membership policy remained in effect until 2003.
a. Branagan remained an employee of the Penn Warner Club after Waste
Management assumed club ownership.
b. Branagan was authorized by Waste Management to continue to issue
complimentary memberships at his discretion.
23. Waste Management continued this practice of issuing complimentary memberships to
bolster their "good neighbor" policy.
a. "Good Neighbor" policies, while not documented, utilizes the promotion of (1)
financial assistance; (2) community aid; and (3) donations by operating of
landfills to pacify public concerns of landfill negativity.
24. Complimentary memberships issued by Branagan did not include the hunting privilege.
a. Individuals who desired a complimentary hunting privilege, would specify that
request by requesting the privilege in writing on the renewal application form.
b. Complimentary members would then be issued the hunting privilege at no
charge.
25. The following chart represents actual memberships, compared to complimentary
memberships issued by Branigan for the years 1998 to present.
Year Actual Paid Memberships Complimentar Memberships
1998 1,609 79
1999 1,497 58
2000 1,459 79
2001 1,410 74
2002 1,377 85
2003 1,291 56
26. Richard Adams was a personal friend to Frank Branagan.
Adams 03 -020
Page 6
27. Richard Adams had been receiving complimentary memberships, including hunting
privileges for at least fifteen (15) years.
a. This complimentary membership pre -dates Adams' appointment to council.
28. Adams would send renewal applications directly to Frank Branagan.
a.
Year
1998
1999
2000
2001
Branagan would in turn approve the complimentary membership.
29. Adams, who is an avid hunter, has specifically requested the hunting privilege in writing
on his renewal applications since at least 1998.
a. Branagan would approve the privilege, and order a membership card to be
issued to Adams.
b. The membership card was produced by club manager Ginger McAllister and
sent to Adams by her on an annual basis.
c. The value of the hunting membership varied in cost from $530 in 1998 to $640
in 2001 and 2002.
30. As an elected member of Tullytown Borough Council, Adams has annually completed
Statements of Financial Interests which require the disclosure of financial information,
including the receipt of gifts, which in the aggregate total $250 or more.
31. Adams has filed Statements of Financial Interests for the 1998 through 2002 calendar
year as follows:
Calendar Year Date Filed
1998 02/23/99
1999 03/01/00
2000 02/13/01
2001 01/22/02
2002 01/22/03
32. Adams disclosed the receipt of the Penn Warner Club complimentary membership on
Statements of Financial Interests filed for the 1998, 1999, 2001 and 2002 calendar
years.
a. Adams did not disclose Penn Warner Club on the form filed for the 2000
calendar year.
b. The membership was valued at $930.00, including a $540.00 hunting privilege.
33. Adams under reported the value of the Penn Warner Club memberships when filing
Statements of Financial Interests.
Amount Reported
$ 550.00
$ 550.00
$ 550.00
$ 1,000.00
Value
$ 960.00
$ 1,005.00
$ 1,155.00
$ 1,145.00
34. In or about February 2003 questions were publicly raised in local newspapers that
Adams did not disclose Penn Warner Club on his calendar year 2000 Statement of
Financial Interests.
Date
Purpose
Official Action
04/18/00
Discussion on landfill expansion
Present
02/06/01
Votes on Waste Management Parcel
Subdivision
In Favor
10/02/01
Land Acquisition
In Favor
02/04/03
Vote on Waste Management Subdivision
In Favor
Adams 03 -020
Page 7
35. Adams, as a result of the publicity, filed an amended form for calendar year 2000,
disclosing Penn Warner with a gratuity value of $800.00.
a. Adams filed the amended form for calendar year 2000 on February 19, 2003.
b. The actual value of the membership in 2000 was $930.00.
36. Adams did not amend SFIs for calendar years 1998, 1999, 2001 or 2002 to reflect the
actual value of the Penn Warner Club membership.
37. Beginning in 2003, Penn Warner Club no longer extended gratuities to government
officials within the Commonwealth of PA, the State of New Jersey, the State of
Delaware and the State of Maryland.
38. Waste Management has had issues before Tullytown Council regarding matters
involving landfill expansions, parcel subdivisions, land acquisitions and open space
plans to further enhance their landfill enterprise.
39. Adams, in his capacity as Councilman voted on at least four (4) times since 2000
concerning matters involving Waste Management, while receiving complimentary
memberships to the Penn Warner Club, which is owned by Waste Management.
a. Votes to approve matters and openly participated [sic] in discussions involving
Waste Management by Adams had financially benefited Waste Management in
their landfill enterprise.
40. The following chart represents votes by Adams relating to matters involving Waste
Management.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Richard Adams, hereinafter
Adams, 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 se ., as codified by the Public
Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 6 Pa.C.S. § 1101 et seq.,
which Acts are referred to herein as the "Ethics Act."
The allegations are that Adams, as a member and president of Tullytown Borough
Council, violated Sections of 3(a)/1103(a) and 5(b)(6)/1105(b)(6) of the Ethics Act when he
participated in discussions and actions of council regarding Waste Management, Inc., at a
time when he was receiving gifts in excess of $250 annually from Waste Management; and
failed to disclose on Statements of Financial Interests (SFIs) filed for calendar years 1998,
1999, 2000 and 2001 gifts or actual value of gifts received from Penn Warner Club.
Pursuant to Section 3(a)/1103(a) of the Ethics Act quoted above, a public official/
public employee is prohibited from engaging in conduct that constitutes a conflict of interest.
Adams 03 -020
Page 8
Section 5(b)(6)/1105(b)(6) of Act 9 of 1989 quoted in the allegation requires that every
public official /public employee and candidate list the name and address of the source and
amount of any gift valued in the aggregate of $250 or more and the circumstances of each gift.
Having noted the issues and applicable law, we shall now summarize the relevant facts.
Given that Adams did not file an Answer to the Investigative Complaint, all of the averments in
the Investigative Complaint are deemed admitted so that the averments are now treated as
definitive facts and hence the Fact Findings in the order.
Adams has been a Tullytown Borough Council member since 1998.
Two landfills are operated by Waste Management, Inc. within the borough. The landfill
property is near or contiguous to a 3,000 acre recreational facility known as the Penn Warner
Club which offers hunting, fishing, boating, camping and outdoor hiking to its members.
Waste Management, Inc. acquired the Penn Warner Club from the Warner Corporation in
1991. Membership privileges for the Penn Warner Club are based upon a fee schedule as
delineated in Fact Finding 16. Memberships at Penn Warner Club are granted on a yearly
basis with the privileges dependant upon the club plan that is chosen.
Prior to 1991, the Penn Warner Club issued complimentary memberships to law
enforcement officers, elected officials, business owners, Warner company employees and
their families. The complimentary memberships were approved by Frank Branagan, a club
consultant. The policy of issuing complimentary memberships continued after Waste
Management, Inc. purchased the Penn Warner Club. Waste Management, Inc. authorized
Branagan to issue complimentary memberships at his discretion as a basis for bolstering its
image as a "good neighbor." For the years 1998 through 2003, the total complimentary
memberships that were issued varied from a low of 56 to a high of 85. The paid memberships
in that same time period varied from a low of 1,291 to a high of 1,609.
In that Adams is a ersonal friend of Frank Branagan and the recipient of
complimentary memberships for at least the past 15 years, Adams annually would send his
renewal applications to Frank Branagan who would approve the complimentary memberships.
Since Adams is an avid hunter, he requested that his memberships include hunting privileges
which added an extra $530 in 1998 up to $640 in 2001 and 2002 to the value of the gifts.
Waste Management, Inc. discontinued its policy of providing Penn Warner Club guest
memberships to government officials in the Commonwealth in 2003.
Waste Management, Inc. had issues before council regarding landfill expansion, parcel
subdivisions, land acquisitions, and open space plans to further enhance its landfill enterprise.
Adams, as a council member, voted on at least four occasions on issues involving Waste
Management, Inc. while receiving complimentary memberships at the Penn Warner Club.
See, Fact Finding 39.
Turning to the SFI allegations, Adams is required to annually file SFI's as a member of
the Tullytown Borough Council. Adams listed the Penn Warner Club memberships on at least
his 1998, 1999, 2001, and 2002 SFI's. A factual issue exists as to whether Adams listed
Penn Warner Penn Club in his 2000 calendar year SFI. See, Fact Findings 32, 32a, 33, and
35. To resolve this matter, we will apply a construction that is favorable to the Respondent
and hence determine that he did in fact list Penn Warner Club on his 2000 calendar year SFI.
However, Adams understated the value of the memberships for the four years in issue. See,
Fact Finding 33. Adams subsequently filed an amended SFI for the calendar year 2000 and
disclosed the Penn Warner Club membership as a gift valued at $800.00 rather than $550 as
originally reported. The value listed in the amended SFI for calendar year 2000 was still below
the actual value of $1,155.00 for the membership in that year.
In applying Section 3(a)/1103(a) of the Ethics Act to the allegation concerning actions
taken by Adams as a Tullytown Borough Council member as to Waste Management, Inc. from
Adams 03 -020
Page 9
which he received guest memberships for the Penn Warner Club, we find no violation of
Section 3(a)/1103(a) of the Ethics Act. Since Adams participated in actions as to Waste
Management, Inc. at the times when he was the recipient of guest memberships for the Penn
Warner Club, such actions were uses of authority of office. See, Juliante, Order 809.
However, in order to establish a violation of Section 3(a)/1103(a) of the Ethics Act, it is
necessary to show that such uses of authority of office by Adams resulted in a private
pecuniary benefit to either himself, an immediate family member, or a business with which he
or an immediate family member is associated. Since Adams had no financial connection with
Waste Management, Inc., it is clear that it is not a business with which he is associated.
Hence, the question becomes whether Adams uses of authority of office as to matters
involving Waste Management, Inc. resulted in private pecuniary benefits to himself.
Although Adams received private pecuniary benefits consisting of the gifts that he
received as complimentary memberships in the Penn Warner Club, those financial gains did
not occur as to his uses of authority of office regarding Waste Management, Inc. To the
contrary, the record reflects that Adams received the complimentary memberships for a
number of reasons which did not relate to his uses of authority of office as to Waste
Management, Inc.: his receipt of club memberships for over 15 years, his friendship with
Frank Branagan who approved the complimentary memberships, and his inclusion in the
group of government officials within Pennsylvania, New Jersey, Delaware and Maryland who
received such memberships. There is not clear and convincing proof that Adams' uses of
authority of office as to Waste Management, Inc. matters before Tullytown Borough Council
resulted in private pecuniary benefits to him from Waste Management, Inc. Accordingly,
Adams did not violate Section 3(a)/1103(a) of the Ethics Act as to his participation in matters
before council involving Waste Management, Inc. vis -a -vis his receipt of complimentary
memberships in the Penn Warner Club from Waste Management, Inc., based upon a lack of
clear and convincing proof. See, Reed, Order 896.
Regarding the SFI's Adams filed with Tullytown Borough, he listed the Penn Warner
Club gift memberships in the calendar years 1998 through 2001 but understated the value of
the gifts by listing them at $550.00 for calendar ear 1998 through 2000 and at $1,000.00 for
2001. As noted, Adams filed an amended SFI for 2000 and listed the value at $800.00 which
was still understated. Accordingly, Adams violated Section 5(b)(6)/1105(b)(6) of the Ethics
Act when he undervalued the gifts of club memberships for the 1998 through 2001 calendar
year SFI's filed with Tullytown Borough.
Adams is directed within 30 days of the mailing of this order to file amended SFI's
listing the gifts of the Penn Warner Club membership together with its source, Waste
Management, Inc., the address, the true amount of the gifts, that is, $960.00, $1,005.00,
$1,155.00, and $1,145.00 for years 1998 through 2001 respectively, together with the
circumstances of the gifts. Copies of the amended SFI's should be sent to this Commission
for compliance verification purposes. Failure to comply with the foregoing will result in the
institution of an order enforcement action.
IV. CONCLUSIONS OF LAW:
1. Richard Adams, as a councilman for Tullytown Borough, is a public official subject to
the provisions of Act 9 of 1989 as codified by Act 93 of 1998.
2. Adams did not violate Section 3(a)/1103(a) of the Ethics Act as to his participation in
matters before borough council involving Waste Management, Inc. vis -a -vis his receipt
of complimentary memberships in the Penn Warner Club from Waste Management,
Inc. based upon a lack of clear and convincing proof.
3. Adams violated Section 5(b)(6)/1105(b)(6) of the Ethics Act when he understated gifts
of Penn Warner Club memberships for the 1998 through 2001 calendar year SFI's
filed with Tullytown Borough.
Adams 03 -020
Page 10
In Re: Richard Adams
File Docket: 03 -021
Date Decided: 12/17/03
Date Mailed: 12/29/03
ORDER NO. 1307
1. Richard Adams, as a councilman for Tullytown Borough did not violate Section
3(a)/1103 (a) of the Ethics Act as to his participation in matters before borough council
involving Waste Management, Inc. vis -a -vis his receipt of complimentary memberships
in the Penn Warner Club from Waste Management, Inc. based upon a lack of clear
and convincing proof.
2. Adams violated Section 5(b)(6)/1105(b)(6) of the Ethics Act when he understated gifts
of Penn Warner Club memberships for the 1998 through 2001 calendar year SFI's
filed with Tullytown Borough.
3. Adams is directed within 30 days of the mailing of this order to file amended SFI's with
Tullytown Borough listing the gifts of the Penn Warner Club membership together with
its source, Waste Management, Inc., the address, the true amount of the gifts, that is,
$960.00, $1,005.00, $1,155.00, and $1,145.00 for years 1998 through 2001
respectively, together with the circumstances of the gifts. Copies of the amended SFI's
should be sent to this Commission for compliance verification purposes.
a. Failure to comply with the foregoing will result in the institution of an order
enforcement action.
BY THE COMMISSION,
Louis W. Fryman, Chair