HomeMy WebLinkAbout1310 BurnsIn Re: J. Bracken Burns, Sr.
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Daneen E. Reese
Donald M. McCurdy
Michael Healey
Paul M. Henry
Raquel K. Bergen
03 -030
Order No. 1310
March 11, 2004
March 26, 2004
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 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 Stipulation of Findings is quoted as the Findings in this Order. 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11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.
Burns 03 -030
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I. ALLEGATION:
That J. Bracken Burns, Sr. a (public official /public employee) in his capacity as a
Washington County Commissioner, violated Sections 1103(a) and 1103(b) of the State Ethics
Act (Act 93 of 1998) including but not limited to using staff of the county Commissioner's
Office, and facilities of the Commissioner's Office, including telephones for the purposes of
soliciting support for his re- election to the office of county commissioner.
II. FINDINGS:
1. J. Bracken Burns, Sr. has served as a Commissioner for Washington County since
January 2, 1996.
a. Burns served as the Vice - Chairman of the Board of Commissioners from May
3, 1997 through September 3, 1998.
b. Burns served as the Chairman of the Board of Commissioners from September
4, 1998 through December 31, 1999.
2. Burns was a candidate for re- election during the 2003 primary and general elections.
a. Burns opted to run a joint campaign with Larry Maggi regarding the 2003
election.
3. Larry Maggi has served as the Sheriff for Washington County since January 1998.
a. Maggi was elected to a second term as sheriff in the November 2001 general
election.
b. Maggi opted to run a joint campaign with Burns regarding the 2003 election.
4. Burns and Maggi established a joint campaign committee for the 2003 election.
a. The Political Committee Registration Statement was filed with the Washington
County Election Office on March 17, 2003.
b. The joint committee was titled "Burns -Maggi for Commissioners Committee."
5. Although a joint campaign committee was formed, both Burns and Maggi maintained
separate, individual campaign committees.
a. Burns' committee was titled, "Bracken Burns for Commissioner Committee."
b. Maggi's committee was titled, "Larry Maggi Election Committee."
6. Burns and Maggi did not maintain an office or other space for the purpose of a joint
campaign headquarters.
a. Both individuals utilized their home residence addresses for their campaign
headquarters.
b. Both candidates routinely utilized their respective home telephone numbers as
contact numbers regarding campaign related issues.
7. Burns' and Maggi's joint campaign committee was composed of members of each
candidate's independent committee.
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a. Additional individuals who were not members of the individual committees
occasionally assisted with joint campaign committee activities.
8. Within Burns' and Maggi's joint campaign committee, a "grassroots" committee was
formed.
a. The purpose of the grassroots committee was to generate support for the
candidates through a series of events held in different geographical areas of the
county.
9. The events organized by the grassroots committee were not fundraisers.
a. The events provided interested individuals with the opportunity to meet Burns
and Maggi and listen to a brief presentation.
10. Lewis Irwin, Joe Zupancic, Chris Wheat, and Todd Ashmore were the four core
members of the grassroots committee.
a. Other interested individuals occasionally assisted in the grassroots committee's
activities.
11. Early in its existence, the grassroots committee primarily met at Maggi's residence
regarding committee events, campaign planning, etc.
a. The grassroots committee did not initially meet on a regular basis.
12. After January 2003, the grassroots committee began meeting in the conference room
of the law firm of Rosenberg, Sewak, Pizzi, and Bell located in Washington, Pa.
a. Zupancic is an attorney employed at Rosenberg, Sewak, Pizzi, and Bell.
b. The frequency of meetings increased after January 2003.
13. The grassroots committee generated mailing lists of individuals in different
geographical areas who were known by Burns and Maggi for the purpose of sending
notification regarding the upcoming grassroots events.
a. Burns and Maggi assisted in compiling the lists.
14. Notification of individuals on the mailing list was to be accomplished with the
distribution of a letter detailing the upcoming election, the idea behind the grassroots
event, the location of the event, and the time of the event along with RSVP information
as shown below:
"Dear
As you know, a critical election will take place on May 20 as together we will
seek the Democratic Party nominations for County Commissioner in the primary
election that day. The truth is, this election will go a long way toward determining the
quality of life in Washington County for many years to come. Your next Washington
County Board of Commissioners will make crucial decisions regarding property taxes,
the county's efforts toward economic redevelopment, and the quality and efficiency of
the public services that our county provides. We believe that together we represent the
best chance of electing an experienced team that will work together to put the citizens
of the county ahead of the petty, personal politics of recent years.
With all this in mind, we are writing today to ask for your help with an initiative
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aimed at getting the word out to the democratic voters in your community. We are
enlisting the help of both Republican and Democratic friends in this effort, all of whom
have in common their service to the community and their desire for good, honest
government that works hard for all of us. Very simply, our efforts will be focused on
personal contacts over the next three months with people we know. To be specific,
were not doing any 'tele- marketing,' door -to -door canvassing, fund - raising, or the like.
Instead, on (Date) we're going to get together to talk about ways that we can help
spread the message 'quietly' to the people we already know. Given the quality and
character of the people who've already agreed to help us, we're confident that we can
get the word out in simple ways that we'll discuss that evening. Here are the details:
What: A chance to meet with Larry and Bracken and a brief presentation;
When: (Date), with light refreshments from (Time) and a short presentation
beginning promptly at (Time).
Where: (Applicable Location).
RSVP: Please RSVP as soon as possible to either Joy Sprowls at 724 -228-
6840 (Larry's Office) or to Sue Orrick at 724 -228 -6726 (Bracken's
office) AND feel free to bring additional guests.
Every single vote will matter in this primary election, and you can make a
difference! We hope very much that you will join us in this important effort, and thank
you for your friendship and your support.
Bracken Burns Larry Maggi"
a. Burns' and Maggi's signatures appeared above their printed names on the
majority of letters mailed.
b. Irwin was the author of the initial draft of the grassroots letter that was
distributed.
15. Sue Orrick is one of five full time administrative personnel employed by the
Washington County Commissioners' Office.
a. Three of the administrative staff individuals are employed as administrative
assistants to the three individual commissioners.
1. Sue Orrick is employed as Burns' administrative assistant /secretary.
2. Orrick is a member of Burns' independent campaign committee.
16. Joy Sprowls is one of four full time administrative personnel employed by the
Washington County Sheriff's Office.
a. Joy Sprowls is employed as Maggi's administrative assistant /secretary.
1. Sprowls is a member of Maggi's independent campaign committee.
17. The direct dial telephone number for the Washington County Commissioners Office is
724 - 228 -6724.
a. Telephone number 724 - 228 -6724 rings at the front reception area of the
commissioners office.
Burns 03 -030
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b. Calls received at the front desk can be routed to any telephone throughout the
commissioners office.
18. All three Washington County Commissioners have separate /independent offices.
a. Each commissioner's administrative assistant /personal secretary has an
independent office immediately adjacent to the commissioner for which they
work.
19. Each commissioner's office has a specific phone line which can be dialed directly
without routing through the county courthouse switchboard operator or the
commissioners office main telephone number.
a. Each commissioner's administrative assistant /personal secretary also has a
specific direct dial number.
20. The direct dial telephone number to Orrick's office is 724 - 228 -6726.
a. The RSVP number for Orrick recorded on the first four grassroots letters was
Orrick's county office telephone number.
21. The grassroots committee sent no letters and undertook no campaign action which was
not first presented to and /or approved by Burns and Maggi.
a. Burns and Maggi were aware of the information presented in the grassroots
letter.
b. Burns and Maggie were not aware that office telephone numbers were listed.
22. A total of five grassroots events were organized for which notification letters were
distributed to various Washington County residents in specific geographic areas of the
county.
a. Letters distributed for the first four events requested RSVPs as shown below:
Date of Letter Date and Location of Event
March 16, 2003
March 23, 2003
March 30, 2003
April 3, 2003
April 1, 2003 — Charleroi, Pa
April 9, 2003 - Washington, Pa
April 16, 2003 — Burgettstown, Pa
April 23, 2003 — Bentleyville, Pa
23. The telephone numbers of Burns' and Maggi's offices and the names of their
subordinate staff were listed as contacts on letters dated March 16, 2003; March 23,
2003; and March 30, 2003.
24. On April 11, 2003, the Weekly Recorder, a local newspaper in the Washington, Pa
area, published a copy of the March 23, 2003 grassroots letter.
a. The article associated with the letter questioned the appropriateness of Burns
and Maggi instructing recipients to RSVP to their respective county offices.
b. The article incorrectly labeled the correspondence as a "campaign fundraising
letter."
25. As a result of the article appearing in the Weekly Recorder, the RSVP request was
omitted from the mailing of April 3, 2003.
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a. The work telephone numbers of Sprowls and Orrick were deleted.
b. The final mailing was dated April 14, 2003 for the event scheduled on April 28,
2003 in Canonsburg, Pa.
26. Although an RSVP was requested on the first four series of grassroots letters mailed,
only a nominal number of RSVPs were actually made to Orrick and Sprowls.
a. In a sworn statement provided to Ethics Commission investigators on
September 3, 2003, Orrick estimated that she received a total of seven RSVPs
regarding the March 23, 2003 mailing.
1. Orrick fielded six of the calls.
2. One was taken by an unknown administrative individual.
3. The amount of time utilized on each call was minimal.
b. In a sworn statement provided on September 3, 2003, Sprowls estimated that
she received a total of six to eight RSVPs regarding the March 23, 2003
mailing.
1. The amount of time utilized on each call was minimal.
27. Orrick received additional calls at her county office regarding the other grassroots
events.
a. Orrick estimated the number of additional calls received and amount of time
spent as minimal.
b. No documentation of total RSVPs received was maintained.
28. Sprowls did not recall receiving any RSVP calls for additional grassroots events.
a. Sprowls acknowledged that the number of additional calls received, if any, was
minimal.
b. No documentation of total RSVP's received was maintained.
29. In addition to fielding RSVP telephone calls for various events, Orrick participated in
additional campaign activities for Burns in her county office.
a. Orrick claimed the additional activities occurred either prior to or after regular
county office hours.
1. Regular county office hours for Orrick are 9:OOa- 4:30p.
30. Although not the joint campaign treasurer, Orrick maintained the checkbook and issued
checks for the joint campaign.
a. Orrick was asked to maintain the checkbook by Burns.
b. Orrick also maintained the checkbook for Burns' independent committee.
c. Orrick occasionally stayed at her office in the county building after 4:30p to
balance the checkbook(s).
Burns 03 -030
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d. Orrick routinely brought checks to the county building for signature by Burns or
Maggi.
1. Orrick primarily obtained the signature prior to or after normal working
hours and /or on her lunch hour.
31. Orrick utilized her county computer at her office for the purpose of generating
advertisements to be placed in local publications for the Burns -Maggi joint campaign.
a. Orrick estimated time utilized in the generation of the advertisements ranged
from five to fifteen minutes.
b. Once generated Orrick saved the various advertisements on her computer for
future use.
c. In a sworn statement provided on September 3, 2003, Orrick estimated
generating /printing one advertisement per week.
32. Orrick participated in at least one work session in Burns' office where envelopes were
labeled and filled with campaign mailings.
a. The session took place in Burns' office during Orricks' lunch hour.
b. All materials used (paper, envelopes, stamps, etc) were provided by the
committee.
33. In a sworn statement provided to Ethics Commission investigators on October 31,
2003, Burns acknowledged having campaign related materials occasionally delivered
to his county office.
a. Burns claimed the delivery to his county office was a matter of convenience.
b. Materials delivered to Burns' county office included note tablets, and other small
items with "Burns -Maggi Good Government" printed on the items.
34. Small items and materials printed with the slogan "Burns -Maggi Good Government"
were made available to the public in Orrick's office.
a. Items displayed for distribution included small note tablets, and Pittsburgh
Steelers football schedules.
b. The items were openly displayed alongside other non - campaign related county
information.
c. No other campaign related materials were stored or displayed in Orrick's or
Burns' office with the exception of flyers and /or stationary in Burns' briefcase.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, J. Bracken Burns, Sr., hereinafter
Burns, 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."
Burns 03 -030
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The allegations are that Burns, as a Washington County Commissioner, violated
Section 1103(a) of the Ethics Act when he used the authority of office as to staff and facilities
of the Commissioner's Office, including telephones, for the purposes of soliciting support for
his re- election to the office of county commissioner.
Pursuant to Section 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 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
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 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.
Burns has served as a commissioner of Washington County since 1996. Burns was a
candidate for county commissioner in the 2003 election. Although Burns and Sheriff Maggi
established a joint campaign committee for the 2003 election, named the "Burns -Maggi for
Commissioners Committee," they maintained separate, individual campaign committees. Both
individuals utilized their residences and home telephone numbers for campaign headquarters.
The Burns and Maggi campaign committee was comprised of members from each candidate's
independent committee.
A "grassroots" committee was formed for the purpose of generating support for the
candidates through a series of events held in different areas of the county. The grassroots
committee was not organized for fundraisers but rather for mailing lists to individuals in
different geographical areas. Such individuals were known by Burns and Maggi and were
sent notification letters regarding the upcoming events. Interested individuals could go and
meet Burns and Maggi and listen to their presentations. The format for the notification letter
appears as Fact Finding 14.
Burns and Maggi did not review the contents of the notification letter prior to its printing.
A total of five grassroots event letters were distributed to various Washington County
residents targeted at specific geographic areas. For the first four events the letters requested
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RSVPs to the telephone numbers of Burns' and Maggi's county offices. The names of their
subordinate staff were listed as contacts on letters dated March 16, 2003; March 23, 2003;
and March 30, 2003. On April 11, 2003, the Weekly Recorder, a local newspaper, published
a copy of the March 23, 2003 grassroots letter and questioned the appropriateness of Burns
and Maggi instructing recipients to RSVP their respective county offices. As a result of the
article appearing in the Weekly Recorder, the RSVP request was omitted from the April 3,
2003 mailing.
Joy Sprowls, who is one of four full -time administrative personnel employed by the
Washington County Sheriff's Office, is Maggi's administrative assistant /secretary and a
member of his independent campaign committee. Sue Orrick is one of five full -time
administrative personnel employed by the Washington County Commissioner's Office, three
of whom are employed as administrative assistants to the three individual county
commissioners. Orrick is Burns' administrative assistant /secretary and is a member of his
independent campaign committee. The direct dial telephone number for the county
commissioner's office has incoming calls to the front reception area which can be routed to
any telephone in the office.
Although an RSVP was requested on the first four series of grassroots letters mailed,
only a nominal number of RSVPs were actually made to Orrick and Sprowls. Orrick estimated
that she received a total of seven RSVPs regarding the March 23, 2003 mailing. The amount
of time utilized on each call was minimal. Orrick received additional calls at her county office
regarding the other grassroots events. Orrick estimates the number of additional calls
received and amount of time spent was minimal. Sprowls did not recall receiving any RSVP
calls for additional grassroots events.
In addition to fielding RSVP telephone calls for various events, Orrick participated in
additional campaign activities for Burns in the county offices. The additional activities
occurred either prior to or after regular county office hours.
Although not the joint campaign treasurer, Orrick maintained the checkbook and issued
checks for the joint campaign at the request of Burns. Orrick occasionally stayed at her office
in the county building after 4:30 p.m. to balance the checkbook(s). Orrick routinely brought
checks to the county building for signature by Burns or Maggi prior to or after normal working
hours and /or on her lunch hour.
Orrick utilized her county computer at her office for the purpose of generating
advertisements for the Burns -Maggi joint campaign. Orrick estimated time utilized in the
generation of the advertisements ranged from five to fifteen minutes in generating /printing one
advertisement per week. Orrick participated in at least one work session in Burns' office
where envelopes were labeled and filled with campaign mailings. The session took place in
Burns' office during Orrick's' lunch hour. All materials used were provided by the committee.
Burns acknowledged having campaign related materials occasionally delivered to his
county office. Materials delivered to Burns' county office included note tablets, and other
small items with "Burns -Maggi Good Government' printed on the items. Small items and
materials printed with the slogan "Burns -Maggi Good Government" were made available to the
public in Orrick's office.
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 that
a de minimis violation of Section 1103(a) of the Ethics Act occurred when employees of the
Commissioner's Office received telephone calls related to Burns' re- election campaign due to
the limited number of calls received by support staff; and an unintentional violation of Section
1103(b) [sic] occurred when Burns listed office telephone numbers on campaign letters.
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In applying Section 1103(a) of the Ethics Act to the instant matter, there was a use of
authority of office by Burns. In particular, there was a utilization of county telephones for
campaign purposes, albeit for very minimal times. Such action necessitated that county staff
would have to answer the RSVP telephone calls. Such actions were uses of authority of
office. See, Juliante, Order 809. The uses of authority of office inured to the benefit of Burns
in that he or his campaign had no out of pocket expenditures for such utilization of county
offices, staff, and telephones. Lastly, the private pecuniary benefit inured to Burns himself.
Accordingly, Burns unintentionally violated Section 1103([a]) of the Ethics Act when he used
the authority of office to list his county office telephone number on campaign letters that had
been mailed. See, Rockefeller, Order 1004.
Regarding the use of county employees for receiving telephone calls relative to Burns'
re- election, the stipulated facts reflect that the calls received by support staff were of a limited
number so as to constitute "a de minimis violation of Section 1103(a) of the Ethics Act" as per
the Consent Agreement of the parties. Accordingly, a "de minimis violation" of Section
1103(a) of the Ethics Act occurred when Burns utilized county employees to receive
telephone calls for his re- election campaign where the calls received by staff were of a limited
number. See, Terrizzi, Order 1090; Clinemyer, Order 1235.
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 and
the totality of the facts and circumstances.
IV. CONCLUSIONS OF LAW:
1. Burns, as a Commissioner of Washington County, is a public official subject to the
provisions of Act 9 of 1989 as codified by Act 93 of 1998.
2. Burns unintentionally violated Section 1103([a]) of the Ethics Act when he used the
authority of office to list his county office telephone number on mailed campaign letters.
3. A "de minimis violation" of Section 1103(a) of the Ethics Act occurred when Burns
utilized county employees to receive telephone calls for his re- election campaign where
the calls received by staff were of a limited number.
In Re: J. Bracken Burns, Sr.
ORDER NO. 1310
File Docket: 03 -030
Date Decided: March 11, 2004
Date Mailed: March 26, 2004
1. Burns, as a Commissioner of Washington County, unintentionally violated Section
1103([a]) of the Ethics Act when he used the authority of office to list his county office
telephone number on mailed campaign letters.
2. A "de minimis violation" of Section 1103(a) of the Ethics Act occurred when Burns
utilized county employees to receive telephone calls for his re- election campaign where
the calls received by staff were of a limited number.
BY THE COMMISSION,
Louis W. Fryman, Chair
Commissioner Michael Healey, Esquire, did not participate in the consideration of this matter.