HomeMy WebLinkAbout1313 HabayIn Re: Jeffrey Habay
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
01- 065 -C2
Order No. 1313
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 held. 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11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.
Habay 01- 065 -C2
Page 2
I. ALLEGATION:
That Jeffrey Habay, a (public official /public employee) in his capacity as a member of
the Pennsylvania House of Representatives violated the following provisions of the State
Ethics Act (Act 93 of 1998) when he used the authority of his office for the private pecuniary
benefit by utilizing Commonwealth employees, materials, equipment and office space in
furtherance of fundraising events for his re- election.
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.
II. FINDINGS:
A. Pleadings
1. The Investigative Complaint was mailed to the Respondent on November 1, 2002.
2. Jeffrey E. Habay has served as the Representative for the 30 District of the
Commonwealth of Pennsylvania since 1995.
3. Members of the Pennsylvania General Assembly are permitted to maintain district
offices, in addition to offices at the Main Capital.
a. Rule 14, Section 3, of the Rules of the House of Representatives provides that
allowable expenses include rent for legislative office space and equipment,
including telephones and other office equipment.
4. Jeffrey Habay has maintained a legislative district office at 1486 Butler Plank Road,
Glenshaw, PA, since April 1999.
a. Prior to April 1999, Habay's District Office was located at 1412 Mt. Royal
Boulevard, Glenshaw, PA 15116.
b. Equipment available for use in Habay's district office includes computers,
telephones, fax machines and copiers.
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5. Habay's district office hours are 8:30 a.m. to 5:00 p.m., Monday through Friday, and
9:00 a.m. to 11:00 a.m. on Saturdays.
6. Habay also maintains an office in the Capitol which is also staffed.
7. Rules of the House of Representatives, Rule 14, Section 2, also permits expenses for
the hiring of administrative, clerical and professional personnel, except for employment
of spouses or any relatives by blood or marriage.
8. Since assuming office, Habay has hired individuals for employment in his district office.
9. Since 1999, Habay's district office has been staffed by the following individuals who
are identified as legislative aides and /or interns:
Rebecca Collins
Jason Dailey
Rebecca Radich
Joseph Pulgini
Margery Dillenberg
Walter Lowrie
Melissa Slowik
Rich Wheland
Grant Stapleton
Alicia Kryzmanich
Jack Koehler (until 06/99)
10. On March 25, 2002, House Parliamentarian Clancy Myer issued a memo to House
members regarding the use of facilities and /or employees as follows:
"Members are advised that no legislative facilities or supplies are to be utilized for re-
election purposes. Also, if any legislative staff assist [sic] with campaign functions,
they cannot do so during normal work hours, unless leave time is taken. The
assistance cannot take place in Harrisburg or district offices."
11. Fundraising events on behalf of Habay have been held at various times since April
1999.
a. These events were held to fund Habay's campaign related expenses.
12. Although 1999 was a non - election year for the House of Representatives, Habay
wanted the fundraisers held to bolster his campaign account.
13. In 1999, fundraisers to benefit Habay were held on July 29, 1999, and November
18, 1999.
14. In or about July 1999 Dr. Vincent Morreale, a Habay supporter and contributor,
initiated actions to host a fundraiser for Habay.
15. The Adams Ridge Clubhouse is not located in Habay's legislative district but is within
the boundaries of the senatorial district.
16. Rebecca Collins was employed as a legislative aide in Habay's district office from June
30, 1999, until January 28, 2000.
17. Radich was employed in Habay's district from May 7, 1997, until June 27, 2000.
18. Dillenberg served as an intern during the summer months of 1999.
19. Collins arranged for the services of a caterer for the Adams Ridge fundraiser.
a. The order was placed by Rebecca Collins on Monday, July 26, 1999, the day
before the event.
Habay 01- 065 -C2
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b. Collins paid the catering bill with check no. 462 from the Habay 2000 Campaign
Account.
c. Catering Costs totaled $1,314.28.
20. Dillenberg's normal work hours at the legislative office were 9:00 a.m. to 5:00 p.m.,
Monday through Friday.
21. Contributions are identified in campaign finance reports filed on behalf of Habay.
22. A second fundraiser was held for Habay on November 18, 1999, at the Abate
Restaurant, Waterworks Mall location.
23. Contributions are identified on Habay's campaign expense reports for the Habay 2000
Committee.
24. Since serving as a member of the House of Representatives, Habay has maintained a
bank account, Committee to Elect Jeff Habay, which has been used for campaign
purposes.
a. In July 1999 the account name was changed to Habay 2000.
b. Signature authority for the account included Habay, Nubia Hager, Habay [sic]
and Habay's campaign treasurer.
25. Nominating petitions were circulated between January 4, 2000, and January 25, 2000.
26. In or about January 2001 Habay was soliciting support for the vacant 40 Senatorial
district seat.
a. Habay was one of three candidates being considered for the position.
27. On January 17, 2001, the Republican State Committee held a conferee meeting at the
North Campus of Allegheny Community College to elect a candidate to run in a special
election for the unexpired Senate seat.
28. Between February 1, 1998, and January 31, 1999, Habay's campaign paid $350 per
month rent for office space.
B. Testimony
29. Vincent Morreale is a doctor of chiropractic.
a. Morreale developed a professional, friendship, and legislative relationship with
Habay.
b. Morreale had involvement in holding a fundraiser for Habay at the Adams Ridge
Clubhouse.
(1) Morreale had conversations with Habay and /or his staff members about
the fundraiser.
(a) Morreale primarily dealt with Rebecca Collins in Habay's district
office.
Habay 01- 065 -C2
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(b) After someone in Habay's district office called Morreale about
having a larger scale party, Morreale then selected the Adams
Ridge Clubhouse.
c. Attorney General Mike Fisher was a dignitary at the event.
d. The purpose of the fundraiser was to raise money for Habay's re- election.
e. Some chiropractors from either of the two chiropractic associations made
political contributions to Habay's campaign.
(1) Some chiropractors' names were placed on the invitation list for the
Habay fundraiser at Adams Ridge.
(2) Any chiropractor on a list (Exhibit ID16) was added to the invitation list.
30. Margery Dillenberg was a legislative intern in Habay's legislative district office during
the summer of 1999.
a. Dillenberg performed various tasks such as filing, answering phones, stuffing
envelopes and accompanying Habay to events.
b. Dillenberg stuffed invitations into envelopes for a Habay fundraiser during
normal working hours at the legislative district office.
(1) Rebecca Collins assisted Dillenberg with the project.
(2) Dillenberg spent one to two hours stuffing the envelopes.
c. In preparation for the fundraiser, Dillenberg spent an afternoon setting up
chairs, laying down tablecloths, and performing other activities.
(1) Dillenberg performed the tasks either the day before or the day of the
event.
(2) Dillenberg spent a total of eight hours of time in getting flowers and
setting up for the event.
d. Election and campaign materials were stored in the district office.
e. In the district office Dillenberg heard Habay give Rebecca Collins directions
regarding the fundraiser sponsored by Dr. Morreale.
31. George Radich is an employee of the Port Authority of Allegheny County.
a. Radich volunteered for Habay; Radich's spouse worked for Habay as a
legislative aide.
b. Radich's spouse worked for Habay at the Mount Royal District Office and then
on Butler Plank Road after the district office was moved.
(1) Radich's spouse began employment with Habay in May of 1997.
(a) Radich's spouse volunteered for Habay's campaign and at his
district office for about a year before she began employment
there.
c. Through involvement with Habay's campaign activities, Radich personally
observed Habay's legislative employees engage in campaign related activity:
Habay 01- 065 -C2
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"They [legislative staff] would plan fund - raisers in the office. They would make
campaign phone calls for the fund - raisers from the office. Each election day
that Jeff was up for election, they would work the polls and he would close the
office. They would run whatever errands were necessary." (NT, 89)
d. The "Habay wave" was an activity that occurred the day before an election.
(1) Habay would take legislative staff and supporters to the highway and
wave Habay campaign signs to the passing motorists.
(a) The Habay wave started between 6:00 and 7:00 a.m. and
continued to 9:30 a.m.
(b) The Habay wave resumed at 3:00 p.m. and continued until 5:30
or 6:00 p.m.
(c) Radich personally observed his spouse and other legislative
employees doing the Habay wave during district office work
hours.
e. One of the activities Radich performed in helping Habay on campaign activities
was to create a database for the campaign.
(1) ID15 is a printout from the database Radich created.
(a) The database has a category called "source" to reflect the
origination of the names and addresses.
(b) The source category, PennDOT, was for individuals who
contacted Habay's legislative office to obtain assistance as to
PennDOT matters.
1. Habay knew that Radich was using the PennDOT
information because the two of them talked about it.
(c) The list (ID15) was used for campaign /re- election purposes.
1. The list (ID15) was used for Habay fundraising.
f. ID9 is a list of all the polling locations for the 30 Legislative District.
(1) The list contains the names and times for which individuals would man
the polls for Habay.
(a) The list would reflect whether any given polling location was
covered.
(2) For the 1998 primary, when Habay learned that the polls were not fully
manned, Habay directed Radich's spouse to do what was necessary to
ensure coverage at the polls.
(a) On a Thursday, Radich's spouse and legislative employee,
Jason Dailey, went to Habay's house to make calls to individuals
to man the polls.
(b) On a Friday, Radich, his spouse, and Jason Dailey went to
Radich's house to make calls to individuals to man the polls.
Habay 01- 065 -C2
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g.
1. This occurred from mid - morning into the evening.
Rebecca Collins worked as a legislative employee for Habay until January 2000.
(1) Habay visited Radich when Collins submitted her resignation.
(a) Habay indicated that in addition to Collins, legislative staff
employees, Joe Pulgini, Walter Lowrie, and Radich's spouse
"walked out."
h. After the Harrisburg office told the district office staff to clean out materials from
Habay's office, Habay directed the staff to retrieve the material from the
dumpster.
(1) Habay placed a garbage bag and material on Radich's spouse's chair in
the district office.
(2) Following the incident, Habay went to Radich's home and had a
discussion with Radich in Radich's spouse's presence.
(a) Radich told Habay: ". . . he [Habay] had to separate the two
[legislative and campaign/election related activity], because he
was wearing his staff out. They were burning the candle at both
ends." (NT, 104 -105)
(b) Habay acknowledged to Radich the commingling of legislative
and campaign related activities.
(1) Radich stated Habay's response ". . . he [Habay] was
going to get it straightened out, form a committee, a
campaign committee and have it separate so that his staff
and his campaign committee would be separate."
(NT,105)
Radich accompanied Habay in a vehicle to deliver plastic bags with "re -elect
Habay" logos to homes in Habay's legislative district.
(1) The bags contained tablets, a PennDOT map, and pamphlets such as
"fire safety."
Habay told Radich's spouse to leave his district office after an argument
occurred between them.
32. Rebecca Radich worked in the legislative district office of Habay as an administrative
assistant.
a. Radich volunteered to work for the Habay campaign when he ran for re- election.
(1) Volunteering occurred before Radich became employed in the district
office.
(2) After Habay won re- election, Radich did volunteer work in his district
office.
b. Radich became employed and worked in Habay's district office in the spring of
1997.
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(1) Radich was a full -time employee at the Mount Royal Boulevard district
office.
(2) The district office moved to Butler Plank Road in April of 1999.
(3) Radich's normal working hours were 8:30 a.m. to 5:00 p.m.
(4) As to office organization, even though Habay had a chief of staff,
everything went through Habay.
c. At both the former district office on Mount Royal Boulevard and the current
office on Butler Plank Road, Mrs. Radich performed both legislative and
election /campaign activities. She stated: "The two were intertwined at all times.
The legislative office and the campaign. We did both." (NT, 137)
(1) In the legislative district office of Habay, facilities, equipment and staff
were used daily for campaign /election activities in addition to legislative
functions.
d. During her employment in Habay's district office, Mrs. Radich contacted
individuals to be poll workers for Habay's election.
(1) For one election, Radich went to her house which had two phone lines to
make calls for poll workers.
(a) Radich spent one or two days from late morning until 10 or 11 in
the evening making calls.
(b) This activity occurred on a workday(s) at the district office.
(c) Radich was not required to submit a leave slip and was not
docked any pay.
(d) Radich filled in the poll worker charts at her house to keep track
of the poll workers.
1. Staff in the district office had copies of the poll workers
chart.
a. Radich made the copies on the state copier in the
district office.
e. Radich performed various activities as to Habay's Adams Ridge fundraiser.
(1) Radich helped set up the fundraiser, set up tables, place tablecloths,
and decorate.
(2) Radich stuffed envelopes with invitations and affixed official labels and
stamps.
(a) This activity occurred at the district office.
(b) There were between 1,500 and 1,700 envelopes.
(c) This activity was done at the direction of Habay:
"Q. Do you [Mrs. Radich] know if Representative Habay was
aware of the fact that the staff members were stuffing these
envelopes and that you were making calls? Do you know if he
was aware that you were doing this?
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A. Yes, sir.
Q. And was he aware?
A. Yes, sir.
Q. And how do you know he was aware?
A. We were told to do it.
Q. By whom?
A. By the Representative.
Q. Was he ever around the premises when you were stuffing
envelopes or making telephone calls for this event?
A. I'm sure he was, yes. He was in and out of the office quite
frequently when we were doing things.
Q. And the time that you were spending making these
telephone calls and performing these functions in relation to the
invitations, was that during the normal course of your workday?
A. Yes, sir, it was.
Q. Were you required to submit any leave slips?
A. No. sir, I was not.
Q. Were you docked any of your pay as a Commonwealth
employee for performing that function?
A. No, sir, I was not.
Q. At the time that you were doing this, was there any separate
campaign office that was maintained by Representative Habay?
A. A separate building?
Q. Yes. A separate location?
A. Like what we had on Mount Royal Boulevard?
Q. Yes?
A. No, sir." (NT, 149 -150)
(3) Mrs. Radich observed Rebecca Collins in the district office working on
the Adams Ridge fundraiser.
(4) Mrs. Radich also set up the balloons, centerpieces, placed the re-
election signs, and readied the fundraiser rooms for the guests.
(a) Radich left the district office at 10:00 a.m. or 11:00 a.m. and went
to Adams Ridge and spent the rest of the day working and
preparing for the fundraiser.
(b) Rebecca Collins and Margery Dillenberg also helped.
(c) This occurred on state time with no leave or no docked pay.
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f. On the day before the election, Mrs. Radich was stationed along the highway to
do the "Habay Wave" with Habay's re- election signs to passing motorists.
(1) Radich did this activity during her normal district office workday without
submitting leave or being docked work time.
For constituents who came into the district office with PennDOT problems, Mrs.
Radich complied a list of their names and addresses.
(1) The list was used to send out some of the invitations to the Adams
Ridge fundraiser.
h. Mrs. Radich and her spouse attended the fundraiser at Adams Ridge.
(1) When Radich arrived earlier in the day, she spent the entire day on
preparing for the fundraiser, having only time to go home to change and
return for 7:00 p.m.
g.
Faxes were received at the district office from the "Post Office" and "Deli
Catering" concerning the Adam's Ridge fundraiser.
j. Another fundraiser for Habay in 1999 was the "Night in Rio."
(1) Mrs. Radich stuffed envelopes and helped get things ready for that
fundraiser.
a. There were over a thousand envelopes to be stuffed.
(2) Habay was aware that Collins, Dillenberg and Mrs. Radich worked on
the Night in Rio fundraiser:
"Q. Do you [Mrs. Radich] know whether he was aware of what you
were doing in relation to that event?
A. Yes, sir.
Q. How do you know he was aware of this?
A. Because he told us to do this." (NT, 159)
(3) Collins made up a list of people to be invited to the Night in Rio
fundraiser.
(a) Collins added names and information to the list during the normal
workday in the district office.
(b) Radich worked on the list by adding some names.
1. Radich did the work in the district office during the normal
workday using the Commonwealth computer.
2. Radich spent "a couple hours" on the project.
(4) Collins ordered the invitations for the Night in Rio fundraiser during
normal working hours in the district office.
Habay 01- 065 -C2
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k. Mrs. Radich was required on one occasion to drive from the district office to
Harrisburg to take documents relating to Habay's re- election.
(1) Radich performed the task on state time without taking leave or being
docked leave.
After Collins resigned, Habay came to the home of Mr. and Mrs. Radich.
(1) Habay asked Radich to stay on, offering her a raise.
(a) Mrs. Radich told Habay that he (Habay) would have to separate
the campaign activities from the district officer in order for her to
stay on.
1. Habay acknowledged the commingling of legislative and
campaign activities in his district office.
2. Habay told Radich he (Habay) would get a campaign
committee.
m. Campaign activities occurred on a daily basis in Habay's district office.
"Q. What was the frequency of the campaign - related fund - relating activities,
re- election - related activities in that office during the time frame [during Radich's
employment in Habay's district office] I mentioned?
A. It always went on. It was part of - - - part of your day." (NT, 175)
n. When Mrs. Radich left the district office to go to the Adams Ridge Clubhouse to
set -up for the fundraiser, she did not take lunch time.
o. Mrs. Radich made up Habay packets in the district office stuffed with, inter alia,
PA publications, pamphlets and a map.
(1) The packets would be distributed at various locations and events, such
as schools or the Lincoln Day drive, a Republican fundraising event.
(2) Habay had the packets made up for any event he attended.
Habay controlled the district office.
(1) Mrs. Radich stated: "Mr. Habay ran that office. Everything was to go
through him." (NT, 185)
q. Instead of being at the district office, Radich worked all day at the polls on the
day before the election.
(1) The district office was closed on Election Day.
r. Radich feared losing her job if she did not perform campaign activities for Habay:
"Q. Sure. My question to you [Mrs. Radich] is, if the Representative came to
you and said, I want you to perform these whatever activities on behalf of my re-
election campaign and you refused to do it - - -?
A. You didn't refuse to do it.
Q. My question to you is, did you believe that you would lose your job?
A. Yes, sir." (NT, 189)
P.
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33. Janet Martin has been a school director and a Republican committee person in Shaler.
a. Martin, as a committee person, would render assistance generally as to Habay's
re- election campaign.
b. When Habay offered or sought help as to campaigns, he stated that contact
should be made to his district office.
c. Martin received calls relating to election /campaign activities from Mrs. Radich,
Collins, or Melissa Slowik in Habay's district office.
(1) Martin would be asked for help as to manning the polls, making phone
calls, or placing campaign signs.
d. On one occasion when Martin was at Habay's district office, she observed the
staff engaging in fundraising activities for Habay as to the Adams Ridge
Fundraiser.
(1) Collins and Dillenberg were stuffing envelopes for the fundraiser.
(2) This occurred during normal work hours at Habay's district office.
(3) Martin subsequently received an invitation in the mail.
e. On one occasion, Martin manned the district office phone while Habay had a
meeting with staff.
(1) Staff indicated to Habay that much time was spent on campaign and
community fundraisers.
(2) Habay responded that it was part of their jobs.
f. Habay handed out packages with state publications at community events and at
the election polls.
(1) Martin told Habay that he should not be handing out the packets for
election purposes.
(2) Habay rejected Martin's concern.
(a) Martin stated Habay's response: "He [Habay] told me that I was
a Republican committee member and to keep my mouth shut."
(NT, 211)
When Habay was a candidate for the Republican party's nominee for
Pennsylvania Senate, Habay supplied to the conferees a packet of information
inside a folder (ID27b).
(1) The packets were handed out by Stapleton, an employee of Habay's
district office, in Habay's presence.
(2) Conferees expressed concern that the packet might be state materials.
h. Habay was aware that non - legislative election /campaign activity took place in
his district office.
g.
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Martin talked to Habay about commingling of legislative and campaign /re-
election activities in his district office: ' I talked to him about it concerning it
because of the staff problems that were there that I was aware of and how it
was causing a friction in the office. And I told him that the staff members - - - he
was going to continue to lose staff members. He had to make that break. That's
what I talked to him about." (NT, 219 -220)
(1) Habay did not correct the problem after the conversation with Martin.
34. Robert Owsiany was employed as an attorney with the firm of Plummer, Harty &
Owsiany, LLP.
a. Habay and another individual retained Owsiany to file a challenge to a
nominating petition of Bobbie Jo Wagner in the spring primary of 2002.
(1) Grant Stapleton, an employee in Habay's district office, performed
review functions in aid of the lawsuit.
(a) The research related to whether signatures on the petition were
registered voters in Habay's legislative district.
(b) Stapleton was an active participant in relation to the lawsuit.
(2) The meetings between Owsiany and Stapleton occurred during normal
business hours.
35. David Libengood is the owner of Welsh Printing Company, a commercial printing
company.
a. Welsh Printing Company printed campaign material, invitations, letterhead, and
envelopes for Habay.
b. Rebecca Collins from Habay's district office called Libengood to print invitations
for the Habay fundraiser.
(1) The materials in ID22 relate to the fundraiser printing job.
(a) The order comprised 1,700 sets of invitations, three different
reply cards totaling 2,000 units, 2,000 sets of direction inserts,
and 1,750 envelopes.
(b) Collins laid out how she wanted the printing to appear for the
project.
(c) The faxes for the fundraiser printing project were sent from
Habay's district office.
(d) Libengood would in turn fax documents to Rebecca Collins at the
fax number 492 -5108, Habay's district office.
(e) The total cost of the printing job was over $800.
(f) The print job would have been shipped by July 16, 1999.
c. ID19 relates to another fundraiser by Habay.
(1) 850 invitations were to be printed for $563.00 [sic].
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(2) The ship date was November 18, 1999 [sic].
(3) Libengood dealt with Collins from Habay's district office as to the print
job.
d. When Libengood talked to Collins on the telephone, it was during normal
working hours, 8:00 to 5:00, Monday through Friday.
36. Pamela Fortney was employed by the Pennsylvania House of Representatives and
assigned to Habay.
a. Fortney began employment in the House in May of 1996 where she was
assigned to a "float pool" of new secretaries.
(1) During training, Fortney was told that she, as a legislative employee, was not
allowed to engage in political activity on state time in state facilities.
b. Fortney received a permanent assignment with Habay in June of 1997 and
worked until September of 1998.
(1) Her work hours were 9:00 to 4:30.
(2) Rebecca Radich was Fortney's counterpart in the district office of Habay.
c. Habay directed Fortney to create polling tables for him.
(1) The chart was designed to show the polling places together with the
individuals and times for manning the polls.
(2) Fortney did the work during normal state working hours without taking
leave.
(3) Habay gave Fortney a chart with his handwriting showing her how he
wanted the chart prepared.
(4) The document had no legislative purpose.
d. ID15 is a report created in Access by the legislative computer department.
(1) Fortney processed data into the table as to people who had problems
with the PennDOT licenses /titles.
(a) The information was received from the district office in
handwritten form.
(b) Fortney did the work during normal state working hours using the
state computer.
(2) Habay directed Fortney to print out all the PennDOT names/ addresses
and send them to the district office.
e. Fortney assisted in filing Habay's nominating petitions.
f. On one occasion, Fortney met Rebecca Radich at the turnpike exit and the two
of them then drove to Harrisburg.
(1) Campaign forms were filed by Fortney and Mrs. Radich with the
Department of State.
Habay 01- 065 -C2
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g.
(2) The work was done on state time without taking leave.
ID14 contains a tablet, bookmark and Commonwealth pamphlets that were
provided free of charge by the Commonwealth party printing office.
(1) Sticky labels identifying Habay were affixed to the pamphlets.
(2) Habay directed Fortney to periodically obtain various items, 2,000 to
3,000 envelopes (ID14), and about 1,500 pamphlets at a time, and as
many maps as possible.
Boxes of the pamphlets would be loaded into Habay's vehicle.
(3)
37. Grant Stapleton was employed as a legislative aide in Habay's district office for over
three years ending in December of 2003.
a. Stapleton was required to do non - legislative activities in addition to legislative
work in Habay's district office.
(1) One example of such activities involved traveling to Habay's house to
make or assemble election signs.
(a) This was done during normal district office hours at Habay's
request.
(2) Another example of performing non - legislative activities for Habay would
be to call lobbyists about upcoming fundraising events by Habay.
(a) The calls were reminder calls as to fundraiser invitations that had
been sent.
(b) Calls were made from Habay's home.
(c) Habay told Stapleton to use a different name (other than his real
name) so that he would not be recognized.
b. Although there were no fundraisers held at Habay's district office, there were
political /election activities conducted there.
(1) Habay knew that such activities were occurring.
(a) Stapleton stated: " ... he [Habay ] was aware, yes. In some
cases, Young Republicans were cal ed in and tables were set up.
And some of the young republicans were in there making
packets for him until late hours." (NT, 315)
c. Habay's fundraising activities using the district office and staff occurred even
after the SEC investigation of Habay was common knowledge in the district
office.
d. In 2002, Stapleton assisted Habay in a legal challenge to an opposition
candidate's nominating petition.
(1) Stapleton picked up street lists from the county voter's office and
examined them at the district office and at Owsiany's law office for
invalid signatures in order to invalidate Bobby Jo Wagner's petition.
Habay 01- 065 -C2
Page 16
(a) Stapleton checked signatures to determine whether the
individuals were residents within Habay's legislative district.
(b) Stapleton performed the work during state working hours.
(c) Habay knew that Stapleton was engaged in such political
activities.
1. Habay transported Stapleton to most meetings with
Attorney Owsiany.
2. Habay, not Attorney Owsiany, directed Stapleton's work.
e. Stapleton assisted in the district office by putting together a packet for the 2000
conference process relating to selecting a Republican candidate for the
Pennsylvania Senate seat.
(1) Other legislative staff assisted.
(2) This activity started during the day in the district office and continued
into the evening.
f. Stapleton feared the loss of his job if he did not do political /election activities for
Habay:
Did you [Stapleton] ever fear for loss of your job? Did you personally?
Did you have that mental thought or mental impression based upon your
experiences there if you had refused to perform these non - legislative
duties?
A. Very clearly.
Q. Your answer is yes?
A. My answer is yes. The thoughts were quite well communicated." (NT,
323 -324)
38. Rebecca Collins (Coleman) was employed in Habay's district office beginning in June
of 1999 and ending January 28, 2000.
a. Collins held the position of executive director in Habay's district office.
(1) Collins was directly supervised by Habay.
b. When Collins began to work for Habay, her first assignment was the Adams
Ridge fundraiser.
(1) Habay asked Collins to make calls to organize the fundraiser.
(2) From the inception of her employment until the fundraiser on July 29,
1999, Collins spent the majority of every day working on the fundraiser.
(a) For at least 3.75 hours a day from June 30, 1999 to July 29,
1999, Collins worked on the Adams Ridge fundraiser in Habay's
district office during normal work hours without taking any leave
time.
Habay 01- 065 -C2
Page 17
(3) Habay knew that Collins was working on the fundraiser because she
worked at his direction.
(4) Collins used the district phones during district office hours to make calls
regarding various aspects of the fundraiser.
(5) Collins designed the invitations for the fundraiser and sent by fax to the
printer a sketch of a map to the fundraiser location.
(6) Collins talked to Dr. Morreale, the host of the fundraiser, on several
occasions about logistics.
(7) Collins faxed materials relating to the fundraiser to the printer on the
state fax machine in Habay's district office.
(a) Faxes continued back and forth between Collins at Habay's
district office and the printer during the process of working on a
final draft.
(8) Collins worked on various aspects and logistics of the fundraiser in the
course of a day.
(9) When the printing job was done, Collins and Margery Dillenberg stuffed
the envelopes during the normal workday in Habay's district office.
(10) During the day of the event, Collins ran errands such as getting the
fundraiser signs at Kinko's and then went to the facility to set -up for the
fundraiser so that the hall looked attractive.
(11) After the event, Collins deposited the contributions into Habay's
campaign account.
(12) Collins used a supplied list of names to make calls to people as to the
fundraiser.
c. Collins and several others were authorized to sign for Habay's campaign/
election account.
(1) Collins or Jason Dailey, another employee in Habay's district office,
maintained the ledger, the books and deposits.
d. Collins maintained Habay's campaign account for the entire term of her
employment in Habay's district office.
e. After Habay told Collins it was time for another fundraiser, Collins became
involved in organizing the event which was called "Night in Rio."
(1) Collins needed to consider matters such as location, menu, a band,
invitations and similar matters that were involved in the prior fundraiser.
(2) The event was for November 18, 1999, at the Abate Restaurant.
(3) Collins spent a couple hours per day in the district office working on the
event.
(a) Collins' preparation began six to eight weeks prior to the event.
Habay 01- 065 -C2
Page 18
g.
(c) On the day of the event, after Collins checked the office mail, she
spent the day on the event.
(4) For the invitations to the Night in Rio fundraiser, Collins organized the
database which was comprised of local Republicans and past
contributors.
(5)
(
(
(b) The day before the event, Collins spent the whole day working on
the fundraiser.
(a) Collins combined different databases into one organized
database.
(b) Collins worked on the database during normal state working
hours.
As to the Night in Rio fundraiser, Collins made follow -up calls from her
phone in Habay's district office.
(a) The calls were placed to determine if the invitees were coming to
the fundraiser.
(6) Habay knew that Collins was working on the fundraiser because they
discussed the matter.
Collins, during normal working hours, secured a band for the fundraiser
and signed the contract.
(8) Collins was involved as to the purchase of balloons, obtaining stickers,
badges, and picture film for the fundraiser.
Collins deposited the checks received from the fundraiser into Habay's
campaign checking account.
f. Collins on one occasion at Habay's direction circulated nominating petitions for
Habay in neighborhoods during normal office hours. Collins testified: "One day
Representative Habay just said that a couple of us were going to go out and
circulate petitions." (NT, 410)
Collins voluntarily resigned her position in Habay's district office.
(1) Her involvement in Habay's fundraising /campaign /election activities as
opposed to legislative activities was a cause in her terminating
employment.
h. The postage for the Adams Ridge fundraiser was paid from Habay's campaign
account.
The call lists for the Adams Ridge fundraiser were given to callers by both
Jason Dailey and Habay.
j. Some events that Collins went to on behalf of Habay were legislative in nature.
k. Habay's handwriting appears on the top of the map used for directions to the
fundraiser relative to the Welsh Printing contract.
Habay 01- 065 -C2
Page 19
39. Habay's actions in directing Commonwealth paid legislative staff to perform
campaign /election /fundraising activities during normal state office hours was deliberate
and intentional.
40. Robert Caruso is Deputy Executive Director and Director of Investigations for the State
Ethics Commission.
a. A preliminary inquiry was instituted on September 10, 2001, as to Habay by the
Executive Director.
b. A full investigation as to Habay was instituted on November 8, 2001.
(1) A full investigation as to Habay was sent by certified mail which was
returned as unclaimed after the U.S. Post Office left three notices.
(2) Caruso had discussions with Habay in January of 2002 where Habay
came to the State Ethics Commission offices in January 29, 2002, to
accept personal service.
c. The Investigative Division applied for and received two 90 -day extensions as to
the Habay investigation.
d. The Investigative Complaint was issued on November 1, 2002.
e. The Investigative Division formulated a chart (ID25) determining contributions to
Habay's campaign for the Adams Ridge fundraiser from July 21, 1999, to
September 12, 1999, totaling $8,670.00.
(1) The Investigative Division's computation for the Night in Rio fundraiser
reflects contributions totaling $2,400.00.
(2) The Investigative Division computed expenses for the Adams Ridge
fundraiser at $2,326.93.
(3) The Investigative Division determined a net Toss of $511.56 for the Night
in Rio fundraiser with a net total given of $5,831.53 for both fundraisers.
f. The Investigative Division used several factors in determining which checks
were attributable as contributions to the Adams Ridge fundraiser: proximity to
the event, chiropractors as per an interview with Dr. Vlorreale, lack of any other
fundraisers around that time as per Habay campaign finance reports, and
notations on checks that the contributions were for the fundraiser.
(1) Proximity of contributions to the time of the event were also used as to
the Night in Rio fundraiser.
(2) No contributions were considered that were prior to the fundraiser
invitations being "in hand."
41. Habay is the Representative of the State House from the 30 District.
a. Habay testified that the "Habay wave" was done for only an hour between 6:00
and 7:00 a.m. and for a time after 6:00 p.m.
b. As to the PennDOT list, Habay stated that it is a tracking mechanism to ensure
that constituents will get their licenses quickly.
Habay 01- 065 -C2
Page 20
(1) Habay averred that he did not direct staff nor would he use the
PennDOT list for soliciting campaign contributions because it would
generate ill will.
c. Habay testified that he did not ask or direct Rebecca Collins to obtain names for
his nominating petition.
d. Habay stated that in 1999 and early 2000 Jason Dailey was his campaign
treasurer who kept financial records and filed campaign reports.
e. Habay's district office takes complaints from people and tries to resolve them.
f. Office hours in the district office are weekdays, 8:30 a.m. to 5:00 p.m. and
Saturday morning, 9:00 to 11:00 a.m.
g. Habay disputes that the information pack taken by Stapleton to the Republican
conferee's meeting on the vacant Senate seat was ID27B and asserts the
packet was R -1.
h. Habay testified that he terminated Stapleton because he performed private
business activities.
Habay stated that the Night in Rio was not designed to be a fundraiser in that
some people were outside his area and the list of people was not geared for
fundraising.
(1) Habay testified that Night in Rio was to be "a fun night."
(2) Habay stated that Victor Saun, one of the owners of Abate, wanted to
throw an event for Habay's supporters.
(3) Habay stated that he and his spouse worked with Saun as to the menu.
(4) Habay stated that the Abate wait staff provided help for the event.
(5) Habay asserts that the envelopes were stuffed at his own and his
parent's homes.
j. Habay testified that he and Janet Martin have become political adversaries.
k. As to the invitations for the Adams Ridge fundraiser, Habay testified that they
were assembled at his own and his parent's homes.
Habay stated that he did not authorize or direct Rebecca Collins to make follow -
up calls to invitees of the fundraiser.
(1) Local calls out of the district office are not itemized on the phone bill.
m. According to Habay, Mrs. Radich quit after he heard her engage in a
"continuing diatribe for about 15 minutes" and he confronted her.
(1) Habay stated that Mr. Radich threatened him (Habay) after Radich's
spouse quit employment at the district office.
n. Habay testified that in addition to campaign contributions from the Adams Ridge
and Night in Rio fundraisers, PAC's will send checks in the mail in a cyclical
fashion.
Habay 01- 065 -C2
Page 21
(1) Habay stated that contributions are also received from certain
supporters and friends.
o. ID15, the PennDOT list contains names and addresses but no information
about processing license requests.
p. As to Habay's statement that Jason Dailey was the campaign treasurer in 1998
who handled the checking account /campaign finance reports, ID10 reflects that
the campaign finance report lists Habay's spouse as treasurer with no mention
of Jason Dailey.
(1) Habay then testified that his spouse was treasurer for a brief period of
time.
q.
(2) Habay admitted that Dailey's name is not on any of the campaign
finance reports in the record.
Regarding Habay's testimony that Rebecca Collins only had occasional access
to the campaign account, the following checks from that account were signed
by Collins: No.'s 454, 455, 456, 457, 459, 462, 463, 465, 481, 552, 555, 558,
560, 561, and 566.
r. Habay denies that he used Grant Stapleton to work on the Bobbie Jo Wagner
petition challenge, asserting that his (Habay's) spouse did 90% of that work.
(a) When shown Attorney Owsiany's legal bills with several references to
Habay and Stapleton or just Stapleton, Habay responded that he did not
recall or was unsure what Stapleton was doing.
s. As to the Republican conferee meeting for the vacant Pennsylvania Senate
seat, Habay testified that he used exhibit R -1 as his submission.
(1) Habay stated that Janet Martin and Grant Stapleton testified falsely
when they stated that Habay's submission was ID27b and not R -1.
t. Mr. Radich had given Habay a rather large campaign contribution of $2,000 in
the past.
u. Habay initially testified that it is not probable that an invitee to a fundraiser who
did not attend would nevertheless make campaign contributions:
You would accept contributions from someone who chose to give it to
you had they received an invitation even if they didn't come?
A. It's possible, but not probable." (NT, 563)
(1) On further cross - examination, Habay contradicted himself by conceding
such contributions would be accepted:
And they have a sorry, I cannot attend but I do wish to help Jeff.
Enclosed is my contribution of blank dollars, they fill it in, is that correct,
is that how it works?
A. That's correct.
Q. So you did envision a potential that someone might not attend but they
would give you a contribution, you envisioned that possibility?
A. Well, yeah. - - - " (NT, 564)
Habay 01- 065 -C2
Page 22
42. Habay is not a credible witness.
a. During cross - examination Habay either did not answer questions posed by the
Investigative Division or gave evasive or non - responsive answers.
b. Contrary to Habay's assertion that he did not use his Capitol /legislative district
office, employees or equipment for campaign /election activities, seven credible
witnesses (Margery Dillenberg, George Radich, Rebecca Radich, Janet Martin,
Pamela Fortney, Grant Stapleton, Rebecca Collins) testified that Habay
directed non - legislative campaign /election activities out of his legislative offices
and used Commonwealth employees and equipment in furtherance of such
activities.
(1) Dr. Morreale, a Habay political supporter, testified that he had
conversations with Habay's staff and in particular Rebecca Collins in the
district office as to a fundraiser.
(2) David Libengood had phone calls and exchanged several faxes with
Collins in the district office about a printing job for a Habay fundraiser.
c. The fax machine /records in Habay's district office provides a paper and
electronic trail of fundraising activities out of Habay's district office, contrary to
Habay's claim that no such activities occurred.
d. Despite Habay's contention that his legislative staff did not engage in
campaign /political activities, the attorney billing sheets as to Habay's legal
action to remove an opposition candidate from the ballot reflect work time of
legislative aide Grant Stapleton as to the lawsuit.
e. The PennDOT list, ID15, contradicts Habay's assertion that it is used to track
the progress of constituent's requests for licenses in that it only contains names
and addresses that can be used for mailings.
f. Habay's testimony that the Habay wave was done between 6:00 and 7:00 a.m.
and after 6:00 p.m. is contradicted by the testimony of his staff and is
nonsensical as allegedly being limited to such brief times which were pre- and
post rush hour.
Contrary to Habay's testimony that Jason Dailey as treasurer did most of the
work as to the campaign books, ledgers and deposits, Dailey was not listed on
the campaign finance report in evidence and numerous checks out of the
campaign account were signed by Collins.
h. Although Habay testified that stuffing the envelopes for the fundraisers
occurred at his own and his parent's homes, there was testimony from multiple
witnesses who either observed or actually stuffed the envelopes at Habay's
district office.
g.
Despite Habay's contention that he routinely received contributions from PAC's,
contributors, and friends which would not be attributable to the two fundraisers,
the evidence negates Habay's assertion. See, Finding 57.c.
j. Habay flip - flopped on his testimony as to the acceptance of campaign
contributions from political fundraiser invitees who did not attend but sent
contributions.
43. Habay received the following quantifiable financial gains in using district office
equipment and personnel for campaign /election activities:
Habay 01- 065 -C2
Page 23
OPTION
a. Use of district office for campaign /fundraising /election purposes - rent of $350
per month times 17 months = $5,950. See, Fact Findings 28, 32.c., 32.m.
b. Compensation for staff paid by the Commonwealth during normal district office
hours for quantifiable campaign /election activities.
c. Contributions received through the use of district office, equipment, staff, for
campaign fundraising activities: $5,232.01. See, Fact Finding 57.d.
d. Total quantifiable financial gain from Fact Finding 43.a., b., and c.:
$5,950 + $1,814.34 + 5,232.01 = $12,996.35
C. Documents
44. ID5, p1 is a memo of the Executive Director of the SEC dated September 10, 2001,
authorizing the initiation of a preliminary inquiry as to Habay.
45. ID5, p2 is a memo of the Executive Director of the SEC dated November 8, 2001,
authorizing the initiation of a full investigation as to Habay.
a. Notice of investigation was sent to Habay on November 8, 2001, by First Class
Certified U. S. Mail. ID1, pp 1 -5.
(1) The notice was returned as unclaimed. ID2, p2.
(2) Personal service was effectuated on January 29, 2002. ID 2, p1.
46. ID3 and 4 consist of photocopies of two ninety -day extensions by the Investigative
Division dated April 15, 2002, and June 24, 2002, and two orders of the SEC dated
May 2, 2002, and July 1, 2002, approving the extensions.
47. ID7, pp 1 -9 consists of photocopies of 90 -day status letters as to the investigation of
Habay.
Time
Reference
of Pa RPa y
Pay
(1) Collins
20 days in 7/99 at
3.75 hours per day
= 75 hours
38.b.(2)
$11.26
$1,520.10
2 hours x 5 days
per week x 6 weeks
= 60 hours
38.e.(3)
(2) Dillenberg
1.0 hour
8.0 hours
30.b.(2)
30.c.(2)
$5.52
$49.68
9.0 hours
(3) Radich
5.0 hours
6.0 hours
2.0 hours
7.5 hours
32.d.1 )(a)
32.e. 4)(a
32.j.( )(b)2 )
32.q.
$11.93
$244.56
20.5 hours
Total
$1,814.34
Habay 01- 065 -C2
Page 23
OPTION
a. Use of district office for campaign /fundraising /election purposes - rent of $350
per month times 17 months = $5,950. See, Fact Findings 28, 32.c., 32.m.
b. Compensation for staff paid by the Commonwealth during normal district office
hours for quantifiable campaign /election activities.
c. Contributions received through the use of district office, equipment, staff, for
campaign fundraising activities: $5,232.01. See, Fact Finding 57.d.
d. Total quantifiable financial gain from Fact Finding 43.a., b., and c.:
$5,950 + $1,814.34 + 5,232.01 = $12,996.35
C. Documents
44. ID5, p1 is a memo of the Executive Director of the SEC dated September 10, 2001,
authorizing the initiation of a preliminary inquiry as to Habay.
45. ID5, p2 is a memo of the Executive Director of the SEC dated November 8, 2001,
authorizing the initiation of a full investigation as to Habay.
a. Notice of investigation was sent to Habay on November 8, 2001, by First Class
Certified U. S. Mail. ID1, pp 1 -5.
(1) The notice was returned as unclaimed. ID2, p2.
(2) Personal service was effectuated on January 29, 2002. ID 2, p1.
46. ID3 and 4 consist of photocopies of two ninety -day extensions by the Investigative
Division dated April 15, 2002, and June 24, 2002, and two orders of the SEC dated
May 2, 2002, and July 1, 2002, approving the extensions.
47. ID7, pp 1 -9 consists of photocopies of 90 -day status letters as to the investigation of
Habay.
Habay 01- 065 -C2
Page 24
48. The Investigative Division issued the Investigative Complaint on November 1, 2000.
49. The Investigative Division complied with the statutory time requirements of the Ethics
Act as to completion of the preliminary inquiry, investigation, notices, and issuance of
the Investigative Complaint.
50. ID8 in part consists of rates of pay for Commonwealth employees of Habay:
a. The annual salary for Rebecca Collins (Coleman) was $22,640.02 or $11.26
hourly from 6/30/99 to 1/28/00.
b. The annual salary for Rebecca Radich was $23,972.00 or $11.93 hourly from
5/7/97 to 6/27/00
c. The annual salary for Grant Stapleton was $33,589.40 from 11/8/00 with a salary
increase thereafter to $34,450.00 until termination on 12/9/03.
d. The contract salary for Margery Dillenberg was $2,318.40 or $5.52 hourly for
35 hours per week from 6/2/99 to 8/24/99.
51. ID8 in part consists of the start and termination dates for the following Commonwealth
employees of Habay.
a. Rebecca Collins (Coleman) 6/30/99 - 1/28/00
b. Rebecca Radich 5/7/97 - 6/27/00
c. Grant Stapleton 11/8/00 - 12/9/03
d. Margery Dillenberg 6/2/99 - 8/24/99
52. ID9 in part consists of photocopies of polling place schedules at specified locations
with a listing of individuals, their phone numbers and the times at which they would be
present at polling locations on behalf of Habay.
53. ID10 consists in part of photocopies of Campaign Finance Reports for Habay.
a. ID10, p27 for item #455 reflects a payment of $29.92 on 8/2/99 for
reimbursement of supplies.
b. ID10, p28 for item #453 reflects a payment of $16.96 on 8/3/99 for
photocopies.
c. ID10, p28 for item #462 reflects a payment of $1,314.28 on 8/23/99 for
fundraiser.
d. ID10, p33 for item #682 reflects a payment of $37.62 on 11/2/99 for
invitations /labels.
e. ID10, p33 for item #576 reflects a payment of $231.00 on 11/3/99 for stamps.
f. ID10, p34 for item #692 reflects a payment of $300.00 on 11/22/99 for
fundraiser.
g. ID10, p34 for item #687 reflects a payment of $48.14 on 11/23/99 for campaign
office supplies.
h. ID10, pg34 for item #688 reflects a payment of $43.43 on 11/23/99 for copies.
ID10, pg34 for item #684 reflects a payment of $125.00 on 11/16/99 for
(deposit for fundraiser) entertainment.
Habay 01- 065 -C2
Page 25
j. ID10, pg34 for item #691 reflects a payment of $450.00 on 11/22/99 for
fundraiser entertainment.
j. ID10, pg34 for item #693 reflects a payment of $596.78 on 11/22/99 for
invitations.
k. ID10, pg34 for item #685 reflects a payment of $7.48 on 11/23/99 for film
developing.
I. ID10, pg35 for item #577 reflects a payment of $56.60 on 11/30/99 for
balloons.
m. ID10, pg36 for item #586 reflects a payment of $1,015.51 on 12/6/99 for
fundraiser.
54. ID13 in part consists of photocopies of a list of names of contributors for Habay.
55. I D14 consists of an envelope with picture of Habay and district /capitol office addresses
and phone /fax numbers containing various Commonwealth publications, such as map,
pamphlet, and other material with a "Compliments of Jeffrey E. Habay, State
Representative 30 District" stickers attached.
56. ID15 consists of a photocopy of a list of individuals listing their names and addresses
under a "source" designation as PennDOT.
57. ID16 and ID24 consist of photocopies in part of canceled checks from the following
enumerated contributors with dates, amounts and any memo notation, payable to the
Habay political campaign.
a. Habay Political Contributions
Payor
Date
Amount
Memo
1
Doepken, Keevigan, & Weiss PAC
Indiscernible
200.00
PAC
Contribution
2
Indiscernible
Indiscernible
50.00
Indiscernible
3
PA Bankers Public Affairs Committee
9/19/98
500.00
General
Election
Contribution
4
West Penn Laco, Inc.
12/31/98
114.92
None
5
Habay, Jeffrey E.
2/9/99
145.08
Indiscernible
6
TCI Shared Accounting Service Center
3/1/99
58.40
None
7
Wills, Tom
3/15/99
150.00
Re- election
Campaign
8
Dillenburg, Thomas W. /Julianne S.
7/ ? ?/99
50.00
None
9
Friends of Judge Terry McVerry
7/ ? ?/99
100.00
None
10
Indiscernible, Chiropractic Center, P.C.
7/ ? ?/99
Indiscernible
Indiscernible
11
Bolin, Darrell J., Dr.
7/2 ?/99
100.00
Contribution
12
Cassetti, Jean D.
7/2 ?/99
50.00
None
13
DeGenther, Donald A.
7/2 ?/99
100.00
None
14
French, Craig T., Dr.
7/2 ?/99
200.00
None
15
Indiscernible, Natalie M.
7/2 ?/99
100.00
Donation
16
Mazzie, William N., D.O.
7/2 ?/99
25.00
None
17
Carroll, Robert J., Dr. /Ruth C.
7/21/99
50.00
None
18
Local 66 PAC Club
7/21/99
200.00
Donation
19
Stevenson, Tom, Friends of
7/21/99
50.00
Donation
20
Taylor, Daniel L, /Bernadette
7/21/99
50.00
None
Habay 01- 065 -C2
Page 25
j. ID10, pg34 for item #691 reflects a payment of $450.00 on 11/22/99 for
fundraiser entertainment.
j. ID10, pg34 for item #693 reflects a payment of $596.78 on 11/22/99 for
invitations.
k. ID10, pg34 for item #685 reflects a payment of $7.48 on 11/23/99 for film
developing.
I. ID10, pg35 for item #577 reflects a payment of $56.60 on 11/30/99 for
balloons.
m. ID10, pg36 for item #586 reflects a payment of $1,015.51 on 12/6/99 for
fundraiser.
54. ID13 in part consists of photocopies of a list of names of contributors for Habay.
55. I D14 consists of an envelope with picture of Habay and district /capitol office addresses
and phone /fax numbers containing various Commonwealth publications, such as map,
pamphlet, and other material with a "Compliments of Jeffrey E. Habay, State
Representative 30 District" stickers attached.
56. ID15 consists of a photocopy of a list of individuals listing their names and addresses
under a "source" designation as PennDOT.
57. ID16 and ID24 consist of photocopies in part of canceled checks from the following
enumerated contributors with dates, amounts and any memo notation, payable to the
Habay political campaign.
a. Habay Political Contributions
Habay 01- 065 -C2
Page 26
Payor
Date
Amount
Memo
21
Owsiany, Robert M. /Kimberly A.
7/22/99
50.00
None
22
Doepken, Keevican & Weiss PAC
7/23/99
200.00
PAC
Contributions
23
Strelec, Stephen R., M.D.
7/23/99
150.00
Campaign
Contributions
24
Hartnett, Eithne M.
7/24/99
50.00
None
25
Indiscernible, Charles A. /Martha
7/24/99
300.00
None
26
VanHorn, Neil Y. /Hannah
7/24/99
100.00
None
27
Mitchell, Sharon A.
7/25/99
50.00
None
28
Dunlap, M.R. /Nora J.
7/26/99
100.00
None
29
Lewis, Robert J.
7/26/99
1,000.00
Donation
30
Pennsylvania Realtors PAC
7/26/99
150.00
Habay, Jeffrey
Comm to Elect
31
Numrich, W.E. /R.E.
7/28/99
100.00
None
32
Pennsylvania S.E.I.U. COPE
7/28/99
250.00
None
33
Weinstein Chiropractic Center
7/28/99
200.00
Personal
34
Atwell, Martha J.
7/29/99
25.00
None
35
Battaglia, Aldo D.
7/29/99
100.00
None
36
Ciccone, Christopher L. /Debra A.
7/29/99
50.00
None
37
Erlain, Anthony J., Jr.
7/29/99
100.00
None
38
Fawcett, David B., Janet M.
7/29/99
100.00
None
39
Fraudin, George E., Jr., Dr.
7/29/99
200.00
Campaign
contribution
40
Fraudin, Lisa K.
7/29/99
200.00
Campaign
contribution
41
Geer, Thomas P., Attorney
7/29/99
50.00
Indiscernible
42
Gump, John, Dr. /Marilyn J.
7/29/99
200.00
None
43
Hart, Charles A. /Dora H.
7/29/99
50.00
Contribution
44
McVicker, Diane
7/29/99
25.00
None
45
Rea, Donald E. /Janice A.
7/29/99
100.00
None
46
Talarico, John J., Dr.
7/29/99
200.00
None
47
Ross Twp. Chiropractic Center
7/29/99
100.00
Jeff Habay
2000
48
Wampler, Allan Edwin /Mary Ellen
7/29/99
100.00
None
49
Wilkins, Larry E., D.O.
7/29/99
200.00
None
50
Yoest, James Gregory
7/29/99
20.00
Fundraiser,
7/29/99
51
Political Information Committee of Certified
Public Accountants
7/30/99
50.00
7/29/99
Reception
52
Vinson, Raymond J. /Diane C.
7/30/99
100.00
None
53
George, John M., M.D. /Marie J.
8/2/99
100.00
None
54
Architectural lnteriors
8/3/99
50.00
Indiscernible
55
Harris, George F. /Margaret K.
8/3/99
25.00
Contribution
56
Henry, John J. /Mary C.
8/3/99
150.00
None
57
National City Corporation PAC -PA
8/3/99
200.00
None
58
Snyder, Sherman M. /Barbara H.
8/4/99
50.00
Kick -off
Fundraiser
59
Chiropractic Health Center
8/5/99
200.00
Personal
60
Rock -Built
8/5/99
150.00
Dave
McMaster -
7/29/99
61
Arnold, J.W. /J.B.
8/9/99
50.00
None
62
Pennsylvania Physical Therapy
8/11/99
100.00
None
63
Indiscernible, Donald L. /Maralyne V.
8/15/99
25.00
Donation
Habay 01- 065 -C2
Page 26
Payee
Payor
Date
Amount
Memo
64
McCartan, J.R. /Margaret S.
8/17/99
200.00
None
65
Verbaarschott, Derek
8/17/99
25.00
Habay 2000
66
Conway, James C., Dr. /Elizabeth J.
8/18/99
200.00
None
67
Fekos, Christopher P. /Deborah A.
8/19/99
1,100.00
July 29 Event
68
Schofield, William J., III
8/30/99
50.00
Contribution
69
Pierce Chiropractic Clinic
9/17/99
150.00
None
70
Doshi, Marendra S. /Nalini N.
10/21/99
50.00
Donation
71
Schmitt, Ursula & Keith Muchow
11/8/99
20.00
None
72
Heiss, Kenneth P. /Gail I.
11/10/99
50.00
None
73
Stepnick, Thomas W. /Marcella M.
11/10/99
10.00
None
74
Zlotnik, Arnold H.
11/11/99
200.00
11/18/99
Fundraiser
75
Holmes, Neal H. /June D.
11/12/99
100.00
None
76
Indiscernible
11/12/99
100.00
Habay
77
Carroll, Robert J. (Dr.) /Ruth C.
11/13/99
50.00
None
78
Douglas, Monica A.
11/14/99
25.00
None
79
Gubanic, Natalie M.
11/14/99
100.00
None
80
Murrin, Thomas J.
11/16/99
50.00
None
81
Ciccone, Christopher L. /Debra A.
11/17/99
50.00
None
82
Malady & Wooten Public Affairs, LLP
11/17/99
500.00
Contribution
83
Delsignore, John P.
11/18/99
50.00
None
84
Godfrey, James M.
11/18/99
50.00
Campaign
85
McVicker, Diane
11/18/99
25.00
None
86
Morreale Chiropractic
11/18/99
200.00
None
87
Mazzie, William N., D.O.
11/23/99
25.00
None
88
McCartan, J.R. /Margaret S.
11/30/99
250.00
None
89
Angeloff, William V. /Mary E.
12/7/99
25.00
None
90
Frost, Kathleen C.
12/11/99
20.00
None
91
PA Central FCU Credit Union PAC
12/15/99
250.00
Contribution
92
Drumheller, W. Douglas /Peggy J.
12/26/99
50.00
Habay 2000
93
Carpenter, Jeffrey James Bryan
1/22/00
50.00
Election
Campaign
94
PA Anesthesiologists PAC (The)
2/10/00
500.00
None
95
Pittsburgh Federation of Teachers PAC
2/17/00
200.00
None
96
Turzai, Michael C. /Lidia Comini
3/20/00
50.00
Good Luck!
97
Lewis, R.J., Rental Account
3/24/00
1,000.00
None
98
Aufman, Karl F. /Jean Marie
3/29/00
50.00
None
99
Specialty Engineers DiPerna & Associates
4/6/00
25.00
None
100
PA Bankers Public Affairs Committee
9/ ? ? /00
400.00
Contribution
101
PA BAR -PAC
9/ ? ? /00
250.00
Contribution
102
PA ABC PAC
9/14/00
100.00
Western PA
103
Malady & Wooten Public Affairs, LLP
10/4/00
500.00
Contribution
104
AFSCME AFL -CIO Council 10
10/ ? ? /00
500.00
Contribution
105
Habay Jeffrey Earl
12/11/00
280.00
Loan for
Committee
Total
$15,943.40
Payee
Date Amount
Reference
Dillenberq, Margie
8/2/99
29.92
ID10, pq 27
Kinko's
8/3/99
7/29/99
1696
.
ID10, pg 28
ID17, pg 4 & 5
Invitations for 7 /29/99
7/16/99
871.81
ID17, pq 2
Balloons for 7/29/99
7/29/99
93.46
ID17, pg 3
Habay 01- 065 -C2
Page 27
b. Expenses as to Habay's Adams Ridge and Night in Rio fundraisers.
Habay 01-065-C2
Page 28
c. Volume of Habay's Campaign Contributions
Months
11/23/99
Contributions Timeline
Adams Night in
I D 10 pg 34
Tar et 11/20/99 7.48 ID18 pg 6
Total
$5,237.99
pg pq pq pq
d. Calculation of financial gain by using state offices, employees and equipment
for two fundraisers:
Payee
Date Amount
Reference
Wexford Post Office Deli & Catering
7/29/9
1,314.28
ID17, pg 1
Staples
11/02/99
37.62
ID10, 33
United States Postal Service
11/3/99
231.00
ID10, 33
11 /22/99
I D 10, pg 34
Turk, Brian /Abate
12/6/99
11/18/99
1,315.51
ID10, pg 36
ID18, pg 5
11 /23/99
I D 10, pg 34
Staples
11/18/99
48.14
ID18, 4
Kinko's
11/23/99
43.43
ID10, 34
11 /16/99
I D 10, pg 34
Band for 11/18/99
11/22/99
575.00
ID10, pg 34
11 /8/99
I D 18, pg 2
Invitations for 11/18/99
11 /22/99
11/18/99
596.78
I D 10, pg 34
ID18, 1
Bodacious Balloons
11/30/99
11/13/99
56.60
I D 10, pg 35
ID18, 3
g
Habay 01- 065 -C2
Page 29
Items 11 -68
Items 71 -92
(Fact Finding 57.a.)
Expenses as to fundraisers (Fact Finding 57.b.)
Total
$ 8,270.00
2,200.00
10,470.00
- $ 5,237.99
$ 5,232.01
58. ID17 consists in part of photocopies of invoices/bills and a check relating to the July 29,
1999 Habay political fundraiser.
a. Catering for the Adams Ridge fundraiser was $1,314.28.
b. Printing for 1700 invitations with reply card, inserts and envelopes totaled
$871.81.
c. The total expenditure for balloons for the fundraiser was $93.46.
(1) The telephone contact number on the invoice is 492 -0270, Habay's
District Office.
d. Flowers for the event totaled $29.92, as per the sales receipt dated 7/29/99 at
2:42 p.m.
e. A Kinko's expense was $16.96, ad per the sales receipt dated 7/29/99 at
1:34.p.m.
59. ID18 and ID19 consist in part of photocopies of invoices and other documents relating
to a Habay political fundraiser on November 18, 1999.
a. Printing of 850 sets of invitations /envelopes totaled $596.78.
b. The entertainment for the fundraiser totaled $500.00 (without tip).
(1) The phone and fax contact numbers were Habay's district office.
c. The expense for balloons at the fundraiser was $56.60.
d. Fundraiser related expenses at Staples totaled $85.76, as per sales receipts
dated 10/29/99 at 2:53 p.m. for $37.62 and 11/18/99 at 12:04 p.m. for $48.14.
e. The restaurant /food expense for the fundraiser totaled $1,015.21 (without tip),
as per sales receipt dated 11/18/99 at 9:27 p.m.
f. A fundraiser expense for Target was $7.48, as per sales receipt dated 11/20/99
at 5:56 p.m.
60. ID20 is a photocopy of a letter of resignation from Rebecca Collins to Habay dated
February 1, 2000.
a. Collins' basis for resigning was as follows:
"In recent weeks, additional responsibilities related to your re- election effort, and
the requests for professional improvements from House Leadership have made
my work especially difficult. Additionally, it has become clear that there have
been minimal steps taken to improve the professional climate of the district
office to which I am assigned."
61. ID21 is a photocopy of account ledger wherein Habay lists various expenses for
political fundraisers.
Habay 01- 065 -C2
Page 30
a. The listed address is his legislative office at 1412 Mt. Royal Boulevard,
Glenshaw, PA 15116.
b. The telephone /fax numbers, 412 - 492 -0270 and 492 -5108, listed are at his
district office.
62. I D22 consists of photocopies in part of several fax transmittals between Welsh Printing
Company and Habay's district office regarding the content and appearance of the
political fundraiser invitations and related materials.
a. A memo from Rebecca Collins concerning the invitations was sent by faxtothe
printer from Habay's district office on July 2, 1999, at 8:42 a.m.
b. Another memo from Collins to the printer was sent by fax from Habay's district
office on July 6, 1999, at 2:31 p.m.
c. On July 12, 1999, at 8:43 a.m. a fax was sent from Habay's district office to the
printer with corrections as to the printing for his political fundraiser.
d. On July 12, 1999, at 12:52 p.m. Welsh Printing sent a fax to Rebecca Collins
which contained proofs /changes as to printings for the Habay fundraiser.
e. On Jul y 13, 1999, at 10:54 a.m. Habay's district office sent a follow -up fax as to
related printing materials for the Habay fundraiser.
f. On July 14, 1999, at 2:55 p.m. Habay's district office sent a fax submitting the
final draft to the printer.
63. Habay directed staff of his legislative district office during regular office hours to use
Commonwealth equipment for political fundraising purposes.
64. I D22, pp21 -28, is a fax transmission sheet with printing proofs as to the invitations and
related materials for a Habay fundraiser.
65. ID23 consists of photocopies of billing sheets from the firm of Plummer, Harty &
Owsiany, LLP, relating to the challenge of the nomination petition of Bobbi Jo Wagner
by Habay.
a. On March 21, 2002, RMO (Attorney Owsiany) billed for .7 hours for a
conference with Grant Stapleton and Habay.
b. On March 25, 2002, RMO billed for 2.2 hours which included in part a
conference with Grant Stapleton.
c. On March 27, 2002, RMO met in part with Grant Stapleton from Habay's district
office for 1.8 hours of billing time as to the hearing preparation.
d. On March 28, 2002, RMO billed for 6.5 hours which included in part a
conference with Grant Stapleton.
e. On April 4, 2002, RMO billed for 2.0 hours which included in part a conference
with Grant Stapleton.
f. On April 10, 2002, RMO billed for .3 hours for a conference with Grant
Stapleton regarding an appeal of the case.
66. ID25 is a demonstrative chart prepared by the Investigative Division.
Habay 01- 065 -C2
Page 31
a. The Investigative Division calculates that Habay received $8,670 from the
Adams Ridge fundraiser.
(1) With calculated expenses of $2,326,03, the Investigative Division
determined that Habay received a net gain of $6,343.07.
b. The Investigative Division determined that Habay received $2,400 from the
"Night in Rio" fundraiser.
(1) With calculated expenses of $2,911.56, the Investigative Division
determined that Habay received a net loss of $511.56.
c. The Investigative Division determined that Habay received a total net gain of
$5,831.51 from the two fundraisers combined.
67. ID27(b) consists of a packet of documents for Habay's action as to the Pennsylvania
State Senate.
a. The documents are contained within a folder with printing indicating Habay, his
legislative district, and Commonwealth seal.
(1) No disclaimer appears concerning the printing of the folder.
68. R -1 is a blank brochure with a sticky label attached as to Habay for Pennsylvania State
Senate.
a. The folder contains several photocopies of newspaper clippings, a Habay
political flyer, and a donation envelope as to Habay for Senate.
69. Habay used his legislative office, Commonwealth employees, equipment, and materials
during normal working hours for non - legislative, campaign, election, and fundraising
activities.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Jeffrey Habay, hereinafter Habay,
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 seq., as codified by the Public Official
and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which Acts
are referred to herein as the "Ethics Act."
The allegation is that Habay, as a member of the Pennsylvania House of
Representatives, violated Section 1103(a) of the Ethics Act when he used Commonwealth
employees, materials, equipment and office space in furtherance of fundraising events for his
re- election.
Pursuant to Section 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.
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,
Habay 01- 065 -C2
Page 32
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.
Having noted the issues and applicable law, we shall now summarize the relevant facts.
Habay is the representative of the 30 District of the State House of the
Commonwealth of Pennsylvania. Following his election, Habay maintained a district office at
Mt. Royal Boulevard, Glenshaw, until April 1999, when he moved his legislative district office
to 1486 Butler Plank Road in Glenshaw. Habay had also maintained a separate campaign
headquarters for a rental of $350 per month. Habay closed the campaign office at the end of
January 1999.
Habay has had the following Commonwealth employees assigned to his Harrisburg or
district offices: Margery Dillenberg, Rebecca Radich, Grant Stapleton, Rebecca Collins, and
Pam Fortney. None of these individuals is currently employed at Habay's legislative offices.
However, these former employees testified that, while in the employment by the
Commonwealth, they participated in non - legislative activities conducted at the Harrisburg and
primarily at the district office of Habay: preparing for two fundraisers, assisting as to the
challenge of a nominating petition against an opposition candidate to Habay, doing the "Habay
wave" of re- election signs during rush hour traffic the day before elections, preparing lists to
man the polls or to use for political purposes, stuffing packets with Pennsylvania maps and
pamphlets for use in political activities, calling persons for campaign contributions, obtaining
signatures on Habay nominating petitions and filing petitions with the Pennsylvania
Department of State.
Since this case turns upon issues of credibility and since contradictory testimony exists
between Habay and his former employees as well as other individuals, the utilitarian approach
to best present the circumstances of this case will be to summarize the salient testimony of
these witnesses.
Margery Dillenberg was a legislative intern in Habay's district office during the summer
of 1999. In addition to performing tasks such as filing, answering phones, stuffing envelopes,
and accompanying Habay to events, Dillenberg stuffed invitations for a political fundraiser
during normal working hours in his legislative district office. Dillenberg assisted another
legislative employee, Rebecca Collins, with the project and spent one to two hours stuffing the
envelopes. In addition, Dillenberg spent an afternoon setting up chairs, laying tablecloths, and
performing other activities for a Habay political fundraiser.
Another employee in Habay's district office was Mrs. Rebecca Radich. Mrs. Radich
had volunteered for Habay prior to becoming an employee in his district office. She worked in
the district office from May 1997 through June of 2002. Mrs. Radich initially worked at the Mt.
Royal Boulevard District Office and then at the Butler Plank Road after the district office was
Habay 01- 065 -C2
Page 33
moved. Mrs. Radich testified that at both the Mt. Royal Boulevard as well as the Butler Plank
Road District Office she did both legislative and election/ fundraising activities which,
according to her, "were intertwined at all times." See, Fact Finding 32.(c).
Mrs. Radich performed various fundraising /campaign activities out of the district office.
She contacted people to be poll workers for Habay's election during normal work hours at the
district office. Mrs. Radich also performed certain activities in support of Habay's Adams
Ridge fundraiser such as setting up tables, placing tablecloths, decorating, and stuffing
envelopes with invitations, labels and stamps, the latter of which activity occurred in the
district office. In addition, on the day before elections, Mrs. Radich did the "Habay wave"
along a highway which involved holding Habay re- election signs for passing motorists; this
activity occurred in part during normal working hours of the district office. Further, when
constituents came into the district office with PennDOT problems, Radich compiled their
names and addresses into a database list which would be used for invitations to political
fundraisers. Not only did Radich work on the Adams Ridge fundraiser but she also performed
similar activities for the "Night in Rio" fundraiser which occurred later in 1999. In another
instance, Radich was required to drive from the district office to Harrisburg to take documents
relating to Habay's re- election which activity occurred during normal district working hours.
Mrs. Radich also prepared packets in the district office, stuffed with Pennsylvania maps and
publications and pamphlets for distribution at various political or legislative events that Habay
attended. Radich worked all day at the polls before election day which occurred during district
office working hours. Finally, Mrs. Radich made calls from her home during normal district
office hours for people to man the polls for Habay.
Although Habay had a chief of staff, everything in the office had to be cleared through
him. Habay knew and directed various campaign /re- election activities by the Commonwealth
employees in his district office during normal working hours:
"Q. Do you [Mrs. Radich] know if Representative Habay was aware of the
fact that the staff members were stuffing these envelopes and that you
were making calls? Do you know if he was aware that you were doing
this?
A. Yes, sir.
Q. And was he aware?
A. Yes, sir.
Q. And how do you know he was aware?
A. We were told to do it.
Q. By whom?
A. By the Representative.
Q. Was he ever around the premises when you were stuffing envelopes or
making telephone calls for this event?
A. I'm sure he was, yes. He was in and out of the office quite frequently
when we were doing things.
Q. And the time that you were spending making these telephone calls and
performing these functions in relation to the invitations, was that during
the normal course of your workday?
A. Yes, sir, it was.
Q. Were you required to submit any leave slips?
Habay 01- 065 -C2
Page 34
A. No. sir, I was not.
Q. Were you docked any of your pay as a Commonwealth employee for
performing that function?
A. No, sir, I was not.
Q. At the time that you were doing this, was there any separate campaign
office that was maintained by Representative Habay?
A. A separate building?
Q. Yes. A separate location?
A. Like what we had on Mount Royal Boulevard?
Q. Yes?
A. No, sir."
Fact Finding 32.e(2)(c).
Another Commonwealth employee for Habay who worked out of his Harrisburg
legislative office was Pamela Fortney. During her training in the House, Fortney was
specifically told that legislative employees were not allowed to engage in political activity on
state time in state facilities. Nevertheless, Habay directed Fortney to erform certain
political /campaign activities in his Harrisburg office: creating polling tables for Habay which
had no legislative purpose; inputting data into a table as to individuals who came to Habay's
office with PennDOT problems as to licenses or titles; forwarding the PennDOT data to the
district office; assisting with the filing of Habay's nominating petition and filing Habay campaign
forms.
Grant Stapleton, a former legislative aide for Habay, performed various political
campaign fundraising activities on behalf of Habay during normal district office working hours.
Such activities involved going to Habay's house to assemble election signs, calling lobbyists
for upcoming political fundraisers, assisting Habay in a legal challenge as to an opposition
candidate's nominating petition for the 2002 election, and assembling packets for Habay
relating to the 2000 conference process for selecting a Republican candidate for the
Pennsylvania Senate. Such actions were at the direction of Habay who clearly knew that he
was directing Stapleton to engage in such conduct. Thus, when Habay directed Stapleton to
contact people for reminder calls as to the fundraiser, Habay suggested that Stapleton use a
different name, other than his real name, so that he would not be recognized. Further,
fundraising activities continued in the district office even after it was common knowledge that
Habay was under investigation by this Commission. Habay had Stapleton do research during
normal district office hours and work with Habay's attorney who was filing the legal challenge
to an opposition candidate's nominating petition. Such activity is corroborated by the billing
sheets of the attorney which reference the various conferences that he had with Habay and /or
Stapleton as to the lawsuit.
Rebecca Collins was employed in Habay's district office as executive director from
June of 1999 until January 28, 2000. Immediately upon being employed, Collins spent the
majority of every day in the district office working on preparing for a July 29, 1999, political
fundraiser for Habay. Collins used the district office and facilities, in particular the phones, to
make calls regarding the fundraisers and related activities such as printing, catering,
contributions, balloons, flowers, and signs. In addition, Collins utilized the district office fax to
transmit and receive on several occasions the designs for invitations for the fundraiser which
were to be run off by a commercial printer. Collins performed similar activities for a fundraiser
which occurred several months later, the "Night in Rio" fundraiser, held on November 18,
1999. For the latter fundraiser, Collins organized a database comprised of local Republicans
and contributors.
Habay 01- 065 -C2
Page 35
Collins performed other non - legislative functions for Habay during normal district office
hours. On one occasion at Habay's direction Collins went out to circulate petitions in
neighborhoods to obtain signatures for Habay's nominating petition. Lastly, Collins, along with
other employees in Habay's district office, maintained ledger books and deposits of his
campaign election accounts with Collins being authorized to sign checks. Collins resigned in
January of 2000 citing the extensive duties that she was required to perform for Habay
fundraising /campaign /election activities in addition to her legislative duties.
Two other individuals, George Radich and Janet Martin, testified as to political/
campaign /fundraising activities that occurred out of Habay's district office with Commonwealth
employees. Although neither individual was employed by Habay, they did have personal
observations as to the political /campaign activities that occurred in Habay's district office.
Even Dr. Vincent Morreale, a supporter of Habay who sponsored the Adam's Ridge political
fundraiser, testified that he had conversations with Habay and staff members about the
fundraiser and contacted people at the district office as to that fundraiser.
Mr. Radich, a contributor, supporter and volunteer for Habay, observed legislative staff
doing the "Habay wave" to passing motorists on the day before elections starting between 6:00
and 7:00 a.m. and continuing until 9:30 a.m. and resuming at 3:00 p.m. and continuing until
5:30 or 6:00 p.m. Such activities by Habay's staff, including Radich's spouse Rebecca, were
done in part during normal office hours. Radich and his spouse and an employee from
Habay's district office were at Radich's house during normal working hours making calls for
the purpose of manning the polls for Habay. Radich also accompanied Habay on occasions in
his vehicles to deliver plastic bags with Re -elect Habay logos on them to homes in Habay's
legislative district. The plastic bags contained Commonwealth publications such as PennDOT
maps and various printed pamphlets.
Janet Martin, a former school director and Republican committee person who rendered
assistance in Habay's re- election campaigns, was told that political contacts should be made
through the district office. Martin personally observed the legislative employees at Habay's
district office engage in fundraising activities during normal office hours. On different
occasions, Martin had conversations with Habay about such political and re- election activities
out of his district office. Habay's reactions were varied from an acknowledgment of the
situation with a promise of correctinc the commingling of legislative and campaign /re- election
activities to confrontation by telling 'Martin "to keep [her] ...mouth shut." See, Fact Finding 33.
In contradiction to the testimony of the above seven witnesses who all testified as to
varying aspects of campaign /election /political activities occurring in Habay's legislative office's
during normal working hours utilizing Commonwealth employees, equipment and facilities,
Habay testified that he gave no direction and had no awareness that campaign/
fundraising /election activities occurred in his legislative offices. Habay stated that certain
witnesses in his view did not tell the truth. In the alternative, Habay stated that perhaps staff
may have done some activities on their own time or during their lunch hours.
For the reasons detailed in Fact Finding 42, we do not find Habay to be a credible
witness. We found the testimony of the former Commonwealth employees in Habay's
legislative offices and the third parties to be credible and overall consistent as to the non -
legislative activities that occurred in Habay's legislative offices. Further, the evidence goes
beyond the question of Habay's credibility versus that of many other witnesses. There are
paper /electronic trails here involving attorney billing sheets, the legislative district office fax
machine and documents which constitute conclusive, irrefutable evidence that such
political /campaign /fundraising activities occurred in Habay's district office. Habay's assertion
that some of the contributions he received were not as a result of the Adams Ridge or Night in
Rio fundraisers because they were received on a regular basis from supporters and friends is
dispelled by the statistics. See, Fact Finding 57.c.
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The various types and sources of evidence in this case are uniform, consistent,
complimentary and conclusive that Habay used the authority of his office to direct
Commonwealth employees to use Commonwealth offices, equipment and facilities during
normal working hours for campaign, election, and fundraising purposes. Further, such actions
by Habay were not inadvertent or accidental. To the contrary, Habay acted with specific
knowledge of the implications of his actions and with deliberative intent. In this regard, several
people told Habay that it was improper for him to use the legislative offices for
campaign /election /fundraising activities and that he must reopen a campaign office. Habay
disregarded the concerns that were raised and continued along his path, even after he
received notice that he was under investigation for such activities by this Commission.
Habay's conversations with Grant Stapleton to use a fictitious name in making phone calls so
that he would not be recognized as an employee from the district office is particularly telling.
Both parties have filed briefs.
The Investigative Division makes the following arguments:
- The General Assembly has enacted that use of public office for personal financial gain
violates the public trust;
- This Commission has ruled that use of government facilities, equipment and personnel
for personal purposes transgresses the Ethics Act;
- The Ethics Act codifies judicial precedent that a public official may not use his position
to further his own interests;
- The House of Representatives Rules limit the use of office, equipment, supplies and
personnel for legislative purposes;
- Friend, Order 800 stands for the proposition that a legislator may not use his district
office, equipment and supplies for campaign /election /business activities;
- Habay received private pecuniary benefits by not incurring separate campaign
expenses and by not having a separate campaign office;
- Decisions of Ethics Commissions from other states have held that legislators may not
use state facilities for personal /business purposes;
- Clear and convincing proof establishes that Habay used his legislative offices, facilities,
and staff for campaign /election activities;
- The testimony of former legislative staff and other individuals together with
documentary evidence establish Habay's use of his district office and legislative staff to
perform a myriad of election /fundraising related activities;
- Habay's testimony on cross - examination constituted evasive, contradictory, non -
credible, and false statements;
- Habay's intentional violations of the Ethics Act require a financial penalty and referral;
- Habay received a net financial gain from two fundraisers totaling $5,831.51;
- Habay's use of legislative staff paid by the Commonwealth resulted in a financial gain
of $2,589.80 as to Collins; $44.16 for Dillenberg; and $167.02 for Radich;
- The Commission may impose a enalty upon Habay for not having to pay rent for a
campaign office at $350 /month for at least 2% to 7 months ($875 - $2,450) for non -
legislative activities;
Habay 01- 065 -C2
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- The Commission should consider a treble penalty given the intentional, blatant, and
extraordinary conduct by Habay; and
- The Commission should refer this matter not only to law enforcement authorities but
other agencies, including the House of Representatives for review or with
recommendation.
The Respondent in his brief arques as follows:
- The Investigative Division did not present a preponderance of credible evidence to
support its case;
- The Investigative Division's principal witnesses had doubtful credibility and a hostility to
Habay;
- Habay discharged Mrs. Radich after her angry confrontation;
- Mr. Radich has filed civil and criminal charges against Habay;
- Collins terminated employment with Habay because of the demands of her job;
- Habay discharged Stapleton because of his personal side business;
- Habay expected his staff to perform a minimum of 37.5 hours on legislative matters;
- Habay never directed staff to perform non - legislative tasks in lieu of legislative duties;
- Habay had no knowledge of staff performing campaign matters in lieu of legislative
duties;
- The record does not support Collin's testimony about her circulating nominating
petitions;
- Stapleton performed the work in the evening for Habay as to the Republican Conferee
process for selecting the state senatorial candidate;
- The Investigative Division failed to establish that any contributions listed on Exhibit 25
resulted from the two fundraisers;
- The Investigative Division failed to establish any financial gain which would be de
minimis in any event; and
- The evidence shows that any non - legislative activities performed by staff occurred
beyond the 37.5 hours attributable to legislative matters.
In applying Section 1103(a) of the Ethics Act to the record before us, we find numerous
uses of authority of office on the part of Habay. The testimony of witnesses establishes that
everything in the legislative office went through Habay and that Habay had involvement and
directed staff as to various campaign /election /fundraising activities. Such non - legislative
activities were done by Commonwealth employees in Habay's legislative offices during normal
office hours using Commonwealth equipment and supplies. But for the fact that Habay is a
state legislator, he would not have been in a position to direct the Commonwealth employees
to engage in such activities. All such actions were uses of authority of office. See, Juliante,
Order 809.
The uses of authority of office by Habay involved using staff to perform fundraising/
election /campaign activities, including the following: Adam's Ridge fundraiser; Night in Rio
Habay 01- 065 -C2
Page 38
fundraiser; packages for political purposes which contained a Pennsylvania map and other
publications; the "Habay wave" on the day before elections to wave Habay Re- election signs;
the challenge to the nominating position of an opposition candidate; the filing of political papers
in Harrisburg; the preparation of polling place assignments; the preparation of lists of
constituents for purposes of seeking campaign contributions, and the utilization of
Commonwealth employees for non - legislative activities; the circulation of signatures of
Habay's nominating petition; and the use of legislative office equipment and supplies for non -
legislative purposes. All of these uses of authority of office by Habay resulted in numerous
private pecuniary benefits to him.
When Habay closed down his campaign office at the end of January 1999 and
conducted such activities out of his legislative district office, he or his campaign no longer had
to expend $350 a month for a campaign office or pay overhead and operating expenditures.
By directing the Commonwealth employees in his legislative district offices to perform such
campaign /fundraising /election activities, neither he nor his campaign had expenses to pay
individuals to perform such tasks and activities. By utilizing the Commonwealth fax machines,
photocopiers, telephones, paper, and pamphlets, neither Habay nor his campaign had any
expenditures to purchase and pay for such items or services. By utilizing Commonwealth
facilities, equipment, paid staff, and materials to work on the two fundraisers, neither Habay
nor his campaign had any expenditures which would have lessened, as an offset, the amount
of campaign contributions that he received as to the fundraisers. The foregoing rationale
applies to other Habay activities, like using legislative staff in the challenge of the opposition
candidate or circulating Habay nominating petitions for signatures. Lastly, those expenditures
at the Commonwealths expense inured to Habay himself given that the record in this case
conclusively establishes the uses of authority of office by Habay to obtain private pecuniary
benefits for himself. Accordingly, we find the following.
Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he utilized Commonwealth facilities,
equipment, materials and employees during normal office hours for his political fundraiser
entitled the Adam's Ridge Fundraiser held on July 27, 1999.
Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he utilized Commonwealth facilities,
equipment, materials and employees during normal office hours for his political fundraiser
entitled the Night in Rio Fundraiser held on November 18, 1999.
Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he utilized Commonwealth district office
employees during normal office hours to stuff Habay plastic bags with Commonwealth
materials consisting of Pennsylvania maps and pamphlets for non - legislative purposes.
Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he utilized a district office employee
during normal office hours to obtain legislative district resident signatures for his nominating
petitions.
Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he directed legislative staff during normal
office hours to prepare polling location roster sheets and prepare constituents lists for
fundraising purposes.
Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he directed Commonwealth employee
legislative staff to make phone calls for political contributions.
Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he utilized Commonwealth materials and
Habay 01- 065 -C2
Page 39
a Commonwealth district office employee during normal office hours in aid of his bid at the
2000 conferee selection of a Republican Pennsylvania Senate candidate.
Our decision above is consistent with the myriad of our prior precedents that public
officials cannot use government offices, equipment, facilities, staff and supplies for non -
governmental functions such as business, campaign, re- election or political activities. See,
Friend, Order 800; Rieger, Order 680; Rockefeller, Order 1004. The Pennsylvania House of
Representatives has a parallel rule for its legislators. See, Fact Finding 10.
As to the arguments raised by Habay, we shall address the major points seriatim. We
find the evidence presented by the Investigative Division to be beyond clear and convincing to
the point of being overwhelming. The credibility of the witnesses already has been addressed
above. While Habay's staff did perform legislative duties, they also performed non - legislative
duties at his direction during normal office hours. Habay had knowledge of the
campaign /political /fundraising activities of staff because he directed staff to engage in such
non - legislative functions. As to Stapleton's involvement with the 2000 Pennsylvania
Senatorial Conferee process, although that occurred at night, Stapleton prepared the
brochures during normal office hours using Commonwealth supplies for inserts. See, Fact
Finding 37e(2). Finally, the evidence does not show, as Habay contends, that non - legislative
activities occurred beyond 37.5 hours of legislative work; the cost associated with use of the
district office for such activities with Commonwealth paid staff and supplies exceeds de
minimis.
Having found the above violations we shall now consider the two remaining issues of
restitution and referral.
Section 1107(13) of the Ethics Act empowers this Commission to impose restitution
and interest arising out of violations of the Ethics Act:
Any order resulting from a finding that a public official or
public employee has obtained a financial gain in violation of this
act may require the restitution plus interest of that gain to the
appropriate governmental body.
65 Pa.C.S. §1107(13).
As to the matter of payback we find such to be warranted, given the intentional,
deliberative nature of Habay's conduct. In arriving at the amount of the payback, we have
limited the calculation to only definitively quantifiable amounts so that we can make a sum
certain determination of the financial gain received by Habay. This quantifiable gain
comprises the following three areas: the rent saved by using district office as a campaign
office, the utilization of Commonwealth paid staff time during normal office hours for such non -
legislative activities, and the proceeds of the two fundraiser events by Habay utilizing the
Commonwealth facilities, staff, equipment and supplies.
The evidence establishes that from at least the end of January 1999 when Habay's
campaign office was closed until the end of June 2000, Mrs. Radich for the 17 month period
engaged in daily non - legislative activities that were "intertwined" with legislative functions in
the district office. Hence, for at least that 17 month period, Habay did not pay $5,950 (17 x
$350) in rent by utilizing the legislative district office for such campaign, election, and political
activities.
Similarly, the quantifiable amount of Commonwealth paid staff hours during normal
office hours that were used to work on such non - legislative campaign /election /political
activities for Habay totaled $1,814.34. See, Fact Finding 43.b.
As to the matter of the proceeds of the two political fundraisers, Adam's Ridge and
Night in Rio, which were set up and effectuated through the efforts of Commonwealth paid
Habay 01- 065 -C2
Page 40
employees during normal working hours, we find that the quantifiable financial gain received is
the net proceeds less expenses for the two events, that is, $5,232.01. Although Habay
argues that various contributors and supporters routinely made contributions to him which
should not be attributed to the fundraiser, the statistics show the contrary. See, Fact Finding
57.c. The total quantifiable financial gain for all of such activities was $12,996.35.
It is clear to us that the financial gain that Habay received by using Commonwealth
offices, employees, equipment and supplies for campaign /election /political activities far
exceeds the above amount. Our calculations as noted above are based upon only the
financial gains which are quantifiable. Given various factors such as the lapse of time and
lack of timesheets and other record keeping measures, the above amount consequently has to
be so limited.
The last matter that we have before us is the question of referral. Given Habay's
deliberate and intentional action to engage in such activities and continue to engage in such
activities even after he received notice of this Commission's investigation, we will, pursuant to
Section 1108(a) of the Ethics Act, refer this matter to the appropriate law enforcement
authority for review as to the institution of a criminal prosecution against Habay. This matter
will also be forwarded to the Pennsylvania House of Representatives for its review of Habay's
conduct.
Accordingly, Habay is directed within 30 days of the date of mailing of this Order to
make payment of through this Commission in the amount of $12,996.35 payable to the
Commonwealth of Pennsylvania. Non - compliance will result in the institution of an order
enforcement action.
IV. CONCLUSIONS OF LAW:
1. Habay, as a State Representative for the 30 District, is a public official subject to the
provisions of Act 9 of 1989 as codified by Act 93 of 1998.
2. Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he utilized Commonwealth
facilities, equipment, materials and employees during normal office hours for his
political fundraiser entitled the Adam's Ridge Fundraiser held on July 27, 1999.
3. Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he utilized Commonwealth
facilities, equipment, materials and employees during normal office hours for his
political fundraiser entitled the Night in Rio Fundraiser held on November 18, 1999.
4. Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he utilized Commonwealth district
office employees during normal office hours to stuff Habay plastic bags with
Commonwealth materials consisting of Pennsylvania maps and pamphlets for non -
legislative purposes.
5. Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he utilized a district office
employee during normal office hours to obtain legislative district resident signatures for
his nominating petitions.
6. Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he directed legislative staff during
normal office hours to prepare polling location roster sheets and prepare constituents
lists for fundraising purposes.
Habay 01- 065 -C2
Page 41
7. Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he directed Commonwealth
employee legislative staff to make phone calls for political contributions.
8. Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he utilized Commonwealth
materials and a Commonwealth district office employee during normal office hours in
aid of his bid at the 2000 conferee selection of a Republican Pennsylvania Senate
candidate.
In Re: Jeffrey Habay
File Docket: 01- 065 -C2
Date Decided: March 11, 2004
Date Mailed: March 26, 2004
ORDER NO. 1313
1. Habay, as a State Representative for the 30 District violated Section 1103(a) of the
Ethics Act when he used the authority of office to obtain a private pecuniary benefit for
himself when he utilized Commonwealth facilities, equipment, materials and employees
during normal office hours for his political fundraiser entitled the Adam's Ridge
Fundraiser held on July 27, 1999.
2. Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he utilized Commonwealth
facilities, equipment, materials and employees during normal office hours for his
political fundraiser entitled the Night in Rio Fundraiser held on November 18, 1999.
3. Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he utilized Commonwealth district
office employees during normal office hours to stuff Habay plastic bags with
Commonwealth materials consisting of Pennsylvania maps and pamphlets for non -
legislative purposes.
4. Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he utilized a district office
employee during normal office hours to obtain legislative district resident signatures for
his nominating petitions.
5. Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he directed legislative staff during
normal office hours to prepare polling location roster sheets and prepare constituents
lists for fundraising purposes.
6. Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he directed Commonwealth
employee legislative staff to make phone calls for political contributions.
7. Habay violated Section 1103(a) of the Ethics Act when he used the authority of office
to obtain a private pecuniary benefit for himself when he utilized Commonwealth
materials and a Commonwealth district office employee during normal office hours in
aid of his bid at the 2000 conferee selection of a Republican Pennsylvania Senate
candidate.
8. Habay is directed within 30 days of the date of mailing of this order to forward a check
to this Commission payable to the Commonwealth of Pennsylvania in the amount of
$12,996.35. Non - compliance will result in the institution of an order enforcement
action.
9. We will, pursuant to Section 1108(a) of the Ethics Act, refer this matter to the
appropriate law enforcement authority for review as to the institution of a criminal
prosecution against Habay. This matter will also be forwarded to the Pennsylvania
House of Representatives for its review of Habay's conduct
BY THE COMMISSION,
Habay 01- 065 -C2
Page 43
Louis W. Fryman, Chair