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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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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 Page 2 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. Burns 03 -030 Page 3 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 Burns 03 -030 Page 4 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 Page 5 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. Burns 03 -030 Page 6 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 Page 7 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 Page 8 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 Burns 03 -030 Page 9 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. Burns 03 -030 Page 10 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.