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HomeMy WebLinkAbout1313R HabayIn Re: Jeffrey Habay File Docket: X -ref: Date Decided: Date Mailed: 01- 065 -C2 Order No. 1313 -R 6/8/04 6/10/04 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Donald M. McCurdy Michael Healey Paul M. Henry Raquel K. Bergen The State Ethics Commission received a request for reconsideration on April 25, 2004, with respect to Order No. 1313 issued on March 26, 2004. Pursuant to Section 21.29 of the Regulations of the Commission, the discretion of the State Ethics Commission to grant reconsideration is properly invoked as follows: §21.29. Finality reconsideration. (b) Any party may ask the Commission to reconsider an order or opinion within 15 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (c) A request for reconsideration filed with the Commission will delay the public release of an order, but will not suspend the final order unless reconsideration is granted by the Commission. (d) A request for reconsideration may include a request for a hearing before the Commission. (e) Reconsideration may be granted at the discretion of the Commission if: (1) A material error of law has been made. (2) A material error of fact has been made. (3) New facts or evidence are provided which would lead to reversal or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. 51 Pa. Code §21.29(b), (c), (d), (e). This adjudication of the Commission is hereby issued which sets forth the Discussion and Reconsideration Order. Habay, 01- 065 -C2 Page 2 This Reconsideration Order is final and shall be made available (with Order No. 1313) as public documents on the fifth (5th) business day following the date of issuance of this Order. DISCUSSION On March 26, 2004, we issued Habay, Order No. 1313, following our review of the record in this case. The allegation was 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. In applying the allegation to the facts of record, we found that: 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 officeto 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 officeto 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 addition, we imposed restitution in the amount of $12,996.35 to the Commonwealth of Pennsylvania. We also referred the matter to the appropriate law enforcement authority for review as to the institution of a criminal prosecution against Habay and to the Pennsylvania House of Representatives for its review of Habay's conduct. Following the issuance of Order No. 1313, Habay timely filed a Petition for Reconsideration as to our finding of violations of Section 1103(a) of the Ethics Act. The Investigative Division filed an Answer with New Matter to the Petition for Reconsideration, with Habay, 01- 065 -C2 Page 3 attachments, arguing that there were no material errors of fact or law to meet the regulatory requirement for the exercise of our discretion to grant reconsideration. Habay has raised six arguments in support of his request for reconsideration. 1. A material error of law resulted by the commingling of prosecutorial and adjudicatory functions when the Commission approved unwarranted extensions of the investigation and participated in the prosecutorial function of issuing subpoenas in furtherance of the Habay investigation. 2. A material error of law occurred by subpoenaing individuals during the investigation which intruded into the privacy of some individuals, thereby limiting the willingness of those persons to talk to Habay's counsels, and denying Habay the ability to prepare an (adequate) answer to the allegations. 3. A material error of law arose by delineating between personal and official activities of legislative employees in Habay's district office where the management of such staff employees with respect to work schedules and time off is within Habay's discretion as a legislator. 4. Errors occurred when Habay had various time constraints and limited time to supervise the handling of this matter by one of his prior counsels as to calling witnesses to corroborate his testimony, whereby such witnesses were not called by his previous counsel to create a full and fair record, so that in the interests of fairness and justice, the hearing must be reopened to allow such facts and evidence to be presented which would lead to a reversal or modification of the order. 5. Bias of the hearing officer existed after the close of the hearing: a conversation ensued between Habay and the hearing officer about Habay's role as a founding member of the Allegheny County Airport Authority, its relationship to U.S. Airways, its hub status in Pittsburgh and Habay's spouse's position as an employee of U.S. Airways where the hearing officer had been involved in some form of negotiations with U.S. Airways in another capacity; Habay was asked by the hearing officer about U.S. Airway's management structure and its relation to recent personnel cuts where the hearing officer had been involved in issues concerning the airline; and the unsolicited conversation /questioning was a commingling of the hearing officer's role as a neutral hearing officer with his role in another matter outside of the Commission, vis -a -vis Habay's role as a State Representative, his role as a founding member of a major airport authority, and his spouse's role with the airline. 6. Numerous material errors of fact were made consisting in part of the following: the inclusion of the after the fact March 25, 2002, memo by the Parliamentarian of the House the rental amount of $350.00 per month for equivalent campaign office space given that Habay did not campaign in 1999 -2001; the direction by Habay to Fortney to create polling tables for him, in that the chart involved was not in Habay's handwriting; pamphlets provided free of charge by the Commonwealth party printing office in the district office since every State Representative has such pamphlets in their district offices; Stapleton's testimony about Young Republicans in the district office to do fundraising and make up packets even though the Young Republicans and the pamphlets were never specifically dentified; the imposition of a penalty upon Habay for not paying rent for a campaign office when there were no campaigns; and the utilization by Habay of Commonwealth materials and district office employees during normal office hours in aid of his bid at the 2000 conferee selection of a Republican Pennsylvania Senate candidate which occurred on a Saturday and on an evening well after work. Habay, 01- 065 -C2 Page 4 The Investigative Division has filed an Answer and New Matter to the Request for Reconsideration. In opposing Habay's request for reconsideration, the Investigative Division proffers numerous arguments with references to the hearing transcript, exhibits, and various Judicial precedent. Given that the submission of the Investigative Division is over 40 pages in length, the following only highlights its major arguments. 1. No commingling of prosecutorial /adjudicatory functions occurred as was established by the uncontested testimony of the Deputy Executive Director. 2. There was no material error of law as to the issuance of investigative subpoenas. No evidence was proffered by Habay at the hearing concerning subpoenas. Habay submits only a general legal conclusion without any specificity. There is no legally enforceable right of Habay to challenge subpoenas of third parties. Habay waived any such right due to his failure to pursue the issue at hearing. 3. No material error of law exists concerning the separation of powers argument. The Commission operates in the sphere as established by the General Assembly, and interprets and applies the statute as per its mandate. 4. Habay's claim of insufficient preparation time is unfounded. Habay caused numerous delays which thwarted his counsel's representation and resulted in his failure to call witnesses. 5. There was no bias by the hearing officer. Although a casual social conversation occurred in the presence of the parties and their counsels after the conclusion of the hearing involving a subject that did not relate to the hearing, no negative comments were made by the hearing officer relating to Habay or any activity of Habay. The conversation was initiated by Habay who has attempted to make ex parte communications. The conduct of the hearing officer was neutral and unbiased throughout the course of the proceedings. 6. No material errors of fact exist as to the specific instances cited by Habay. There was no evidentiary weight accorded by the Commission to the March 25, 2002, memo. The value of a campaign office rental was based upon a comparable amount. All other issues were previously addressed in Order No. 1313 with no basis or need to readdress such issues. 7. There are no material error(s) of law or facts or new facts /evidence which would lead to a reversal /modification of Order No. 1313. There is no basis for the Commission to exercise its discretion and grant reconsideration. 8. Habay's claim of material errors of law is not supported by either legal precedent, testimony or documents. 9. Numerous delays have occurred in this case by Habay's own actions. Habay requested and received an extension to file an Answer and several continuances of the hearing. Habay was unresponsive as to attempts at communications by the Investigative Division as detailed in part in the Investigative Division's Answer. Habay did not respond to Chief Counsel's letter that noted no action by Habay as to requesting subpoenas in preparation for hearing. Habay repeatedly changed his representation status as pro se or representation by several different counsels. Habay engaged in bogus negotiations as to a consent agreement the day before hearing. 10. There was no denial of due process to Habay. Habay requested and received several continuances. The operations of the Commission were bifurcated as evidenced by the uncontradicted evidence of record. Habay has merely made a general challenge to the Order without providing any specifics. Habay, 01- 065 -C2 Page 5 11. Habay, the subject of the investigation, has no standing to challenge subpoenas issued to third parties. No right or privilege of Habay has been affected in the investigatory process. 12. Habay's claim that he has been denied the ability to prepare a defense is baseless. Habay filed a 42 page Answer with New Matter and affirmative defenses. Habay's counsel received all information during the investigative process including witness statements well in advance of the hearing. Habay has waived any challenge as to such activity that occurred 18 months prior to the hearing. 13. There were no inappropriate ex parte communications by the hearing officer as to a conversation that occurred after the hearing in the hearing room with the parties and their counsels present. No investigative or hearing matters were discussed in the conversation. There has been no showing of a specific occurrence of bias or conflict of interest. The conduct of the hearing officer has been neutral and unbiased. 14. Issues of credibility, testimony conflict and weight of evidence rest with the trier of fact. 15. No errors were committed by the Commission in finding violations of Section 1103(a) of the Ethics Act by Habay. he March 25, 2002, memo was included in the baseorder because it was an admitted averment. The payback for the continuation of campaign /political activities in the legislative district office was based upon the previous rental rate of Habay's closed campaign office. The findings in the order are supported by uncontested testimonial evidence. Habay's lack of credibility was established by uncontested testimony of many witnesses. The Commission accorded the appropriate weight to documentary and testimonial evidence. The finding by the Commission as to Habay's demeanor and credibility is supported by the evidence at the hearing. 16. Habay's argument as to the ineffectiveness of his counsel is baseless. There is no showing of serious ineffectiveness that would produce a different result in the proceeding. Habay's counsel capably represented him at the hearing in the cross - examination of witnesses. There are no specifics as to witnesses or documents as to Habay's counsel's representation. No proof has been submitted to meet the very heavy burden of establishing ineffective representation. The arguments raised by Habay will be addressed seriatim. As to approving 90 -day extensions (65 Pa.C.S. § 1108(c)) and subpoenas (65 Pa.C.S. § 1107(14)), does not involve determinations of probable cause which had already been made by the Investigative Division prior to commencing the investigation. Further, such approvals are based upon proffered needs which do not involve nor require a substantive review of the investigation or investigation files. This Commission did not intrude into this investigation. As to the second argument concerning the intrusion into the privacy of certain individuals through subpoenas which limited Habay's preparation of his Answer to the Investigative Complaint, Habay and his counsels were in no way inhibited by the investigation. Habay and his prior counsels requested and received an extension to file an Answer and several continuances. Further, the answer and new matter filed by Habay's prior counsel was detailed and comprehensive. Lastly, in filing an answer, the rules for pleading allow for instances where a respondent does not have sufficient information. The third argument about the delineation between personal and official duties of legislative employees in Habay's district office is pointless. Habay certainly has discretion as to management of staff. However, Habay may not use his position to direct district office employees to perform campaign or political activity during Commonwealth working hours which is precisely what he did. Habay, 01- 065 -C2 Page 6 In his fourth argument, Habay asserts that various constraints limited his ability to supervise the case which should be reopened out of fairness. Habay was given an extension and continuances by this Commission which protracted this case for many months. Although we do not question Habay's right to obtain such continuances or to change counsel, we believe that it was such actions by Habay that caused any such problems for him. Habay's fifth argument claims bias on the part of the hearing officer after the hearing concluded. The alleged basis for the bias concerns matters involving U.S. Air and the Allegheny County Airport Authority. Simply stated, social discussions after the hearing that did not relate at all to the hearing issues and that may have been generated by Habay himself while in the presence of his (previous) counsel and the Investigative Division with its counsel does not even rise to the level of the possibility of bias. As to Habay's argument on claimed errors of fact, the base order meticulously documented all such fact findings as supported by overwhelming documentary and testimonial evidence in the record. Aside from the following two comments, we will not revisit what has been correctly dealt with in the base order. First, as to the closure of Habay's campaign office, whether Habay had campaigns in 1999 -2001 are not the issue; the issue is Habay's usage of the Commonwealth district office, staff, equipment and supplies for campaign political activity which did occur in that timeframe. Second, as to the 2000 conferee selection, the basis for the violation was Stapleton's work during office hours in preparing the materials prior to that event. As to the six points raised by Habay, the claims of errors of law and fact are baseless and rejected as such. No argument has been raised by Habay which would meet the requisite standard for reconsideration. No material error of law has been established. No material error of fact has been established. No new facts or evidence has been provided which would lead to a reversal or modification of the Order. Habay has failed to meet his burden of proof to establish any need for reconsideration. The Petition for Reconsideration is denied. In Re: Jeffrey Habay RECONSIDERATION ORDER NO. 1313 -R 1. The Petition for Reconsideration of Habay, Order No. 1313, is denied. BY THE COMMISSION, Louis W. Fryman, Chair File Docket: 01- 065 -C2 Date Decided: 6/8/04 Date Mailed: 6/10/04