HomeMy WebLinkAbout239-S BrakeIn Re: Harold Brake
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
05 -002 -P
Order No. 239 -S
12/12/05
12/23/05
This is a final adjudication of the State Ethics Commission as to the alleged
delinquency and /or deficiency of Statement of Financial Interests required to be filed
pursuant to Sections 4/1104 and 5/1105 of the Public Official and Employee Ethics Act
( "Ethics Act "), 65 P.S. §401 et seq. /65 Pa.C.S. §1101 et seq.
The Investigative Division initiated these proceedings by filing with the State Ethics
Commission and serving upon Respondent a Petition for Civil Penalties. An Order to
Show Cause was issued to Respondent. An Answer was filed by the Respondent, and a
hearing was requested. A hearing was held on September 15, 2005. The record is
complete. The Findings in this Order are quoted from the Petition for Civil Penalties filed
by the Investigative Division.
This is a final Order, and it is publicly available upon issuance. Reconsideration
may be requested, but a request for reconsideration will not affect the finality of this
adjudication or its availability as a public document. Any reconsideration request must be
received at this Commission within thirty days of the mailing date noted above 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).
Brake, 05 -002 -P
Page 2
I. FINDINGS:
A. Pleadings
1 Respondent is an adult individual who resides or maintains a mailing address at
224 Rhondel Drive, St. Thomas, PA 17252.
B. Testimon
2. Cynthia Lynch (Lynch) is employed as Director for Administration for the State
Ethics Commission.
a. Lynch's job duties include, but are not limited to, managing the office and
overseeing the budget and finance, Statement of Financial Interests filings,
and operational matters.
b. Lynch has firsthand knowledge of the manner in which Statements of
Financial Interests are administered.
c. A "first Notice Letter" from the State Ethics Commission dated February 6,
2004, was sent to Respondent at 224 Rhondel Drive, St. Thomas, PA.
(1) The first Notice Letter indicated that Respondent had failed to file a
Statement of Financial Interests for calendar year 2002.
(2) The first Notice Letter was sent to Respondent through the U.S.
Postal Service, by regular mail.
d. A "final Notice Letter" from the State Ethics Commission dated April 1,
2004, was sent to Respondent at 224 Rhondel Drive, St. Thomas, PA.
(1) The final Notice Letter indicated that Respondent had failed to file a
Statement of Financial Interests for calendar year 2002.
(2) The final Notice Letter was sent to Respondent by certified mail,
return receipt requested.
The final Notice Letter was received by Randall L. Brake on April 2,
2004, as evidenced by the "green card" or return receipt, which was
returned to the State Ethics Commission by the U.S. Post Office.
e. Respondent was also delinquent in filing Statements of Financial Interests
for calendar years 1999 and 2001.
(1) On Respondent's Statement of Financial Interests filed for calendar
year 1999, the block reserved for official use bears the initials, "L.
F." for Lisa Felty (Felty), who was at that time, an employee in the
Administrative Division of the State Ethics Commission in charge of
handling all non -filer notices.
Felty's initials evidence that she sent a blank Statement of
Financial Interests form to Respondent when she mailed a
non -filer Notice Letter to him.
(3)
(2) On Respondent's Statement of Financial Interests filed for calendar
Brake, 05 -002 -P
Page 3
(3)
(3)
year 2001, the block reserved for official use bears the initials, "S.
W." for Stanley Weaver (Weaver), who was at that time, an employee
in the Administrative Division of the State Ethics Commission in
charge of handling all non -filer notices.
Weaver's initials evidence that he sent a blank Statement of
Financial Interests form to Respondent when he mailed a non -
filer Notice Letter to him.
With regard to calendar years 1999 and 2001, Respondent would
have received the first and second Notice Letters from the State
Ethics Commission as a matter of course.
3. Patrick McEvoy (McEvoy) is employed as a Special Investigator for the State Ethics
Commission.
a. McEvoy's job duties include, but are not limited to, conducting investigations
into all former and present public employees and officials, conducting
interviews, and obtaining documents and information.
b. On August 2, 2005, McEvoy was directed to research the Charles E. Brake
Company, Inc.
(1) Charles E. Brake Company, Inc. is the company listed on
Respondent's Statements of Financial Interests for calendar years
2000 and 2001, of which Respondent indicated that he was
Chairman.
(2) McEvoy obtained and printed out information from the website of
Pennsylvania Department of State Corporation Bureau regarding the
Charles E. Brake Company, Inc.
Corporation Bureau documents list the corporate officers of the
Charles E. Brake Company, Inc. as follows: President — Randall E.
Brake; Secretary — Thelma M. Stahl; Treasurer — Randall L. Brake;
Vice - President — Randall L. Brake.
(4) Articles of Amendment – Domestic Business Corporation for the
Charles E. Brake Company, Inc. were signed by Randall L. Brake,
president of the corporation.
4. Respondent Harold L. Brake (Brake) is a former member of the Prevailing Wage
Appeal Board (Board).
a. Respondent admitted that he was required to file Statements of Financial
Interests.
b. Respondent testified that from 1995 to 2000, the Chairman of the Board
distributed Statements of Financial Interests to the Board members, who
filled them out and returned them to the Chairman.
c. Respondent stated that after the Board Chairman resigned, the Board went
into a "general array of confusion."
d. Respondent testified that he could not recall whether he received Notice
Letters from the State Ethics Commission regarding his failure to file
Statements of Financial Interests for calendar years 1999 and 2001.
Brake, 05 -002 -P
Page 4
e. Respondent testified that he did not know whether his Statement of Financial
Interests for calendar year 2001 was filed late.
f. Respondent testified that he was not aware that Board members had terms.
g.
Respondent testified that he was not sure whether he served on the Board in
2002 because he was not sure when his term on the Board expired.
h. Respondent testified that he could not recall whether he received the "first
Notice Letter" of February 6, 2004, from the State Ethics Commission
regarding his failure to file a Statement of Financial Interests for calendar
year 2002.
J.
Respondent admitted that the "final Notice Letter" was signed for and
received by Randall L. Brake.
(1) Randall L. Brake is Respondent's son.
(2) Randall L. Brake does not reside with Respondent, but works with
Respondent at Charles E. Brake Company, Inc.
It is not unusual for Randall L. Brake to pick up Respondent's mail
when Respondent is away.
Respondent testified that he never saw the Notice Letters from the State
Ethics Commission regarding his failure to file a Statement of Financial
Interests for calendar year 2002.
k. Respondent testified that he filed his Statement of Financial Interests for
calendar year 2002 with the Board Chairman, but did not file it with the State
Ethics Commission.
B. Documents
5. Exhibit ID -1, p 1 is an original Certificate and Attestation of Patricia Enright, Director
of the Governor's Office of Public Liaison, which states that the documents annexed
to the Certificate and Attestation are true copies of the official records maintained in
the bureau and that Ms. Enright is the custodian of those documents.
(1) Exhibit ID -1, p 2 is a photocopy of a memorandum dated December 11,
1995, from Leslie Gromis, Director of Public Liaison to Johnny Butler,
Secretary of Labor and Industry listing Harold L. Brake as one of the
Governor's appointees to the Prevailing Wage Appeal Board.
(2) Exhibit ID -1, p 3 is a photocopy of a list from the Office of the Governor
dated December 6, 1995, setting forth the members of the Prevailing Wage
Appeal Board, which list reflects that Harold L. Brake is replacing James R.
Davis, who has resigned.
Exhibit ID -1, p 4 is a photocopy of a list from the Office of the Governor
dated May 29, 2003, setting forth the members of the Prevailing Wage
Appeal Board, which list reflects that Frank Sirani is replacing Harold L.
Brake, whose term has expired.
(3)
(3)
6. Exhibit ID -2, p 1 is an original Attestation of Vincent J. Dopko, Chief Counsel for the
State Ethics Commission, which states that the attached document is a true and
Brake, 05 -002 -P
Page 5
correct copy of Vanderlin, Advice of Counsel, 81 -597, which Advice is maintained
by the Legal Division as an official record of the State Ethics Commission.
(1) Exhibit ID -2, p 2 is a photocopy of Vanderlin, Advice of Counsel 91 -597.
7 Exhibit ID -3, pp 1 - 2 consists of a photocopy of a Notice letter from the State Ethics
Commission dated February 6, 2004, addressed to Harold L. Brake, 224 Rhondel
Drive, St. Thomas, PA 17252.
(1) The Notice letter provided Respondent an opportunity to avoid the institution
of civil penalty proceedings by filing an accurate and complete Statement of
Financial Interests for calendar year 2002 within twenty (20) days of the date
of the Notice letter.
(2) The Notice letter directed Respondent to file the white copy (original) of the
Statement of Financial Interests with the State Ethics Commission, the
yellow copy with the Prevailing Wage Appeal Board, and a photocopy with
the Secretary for Administration.
8. Exhibit ID -4, pp 1 — 3 consists of a photocopy of a Final Notice letter from the State
Ethics Commission dated April 1, 2004, addressed to Harold L. Brake, 224 Rhondel
Drive, St. Thomas, PA 17252.
(1) The Final Notice letter was sent by Certified Mail # 7003- 1010 - 0002 -8160-
7394.
(2) The Final Notice letter provided Respondent an opportunity to avoid the
institution of civil penalty proceedings by filing an accurate and complete
Statement of Financial Interests for calendar year 2002 within twenty (20)
days of the date of the Notice letter.
The Final Notice letter directed Respondent to file the white copy (original)
of the Statement of Financial Interests with the State Ethics Commission, the
yellow copy with the Prevailing Wage Appeal Board, and a photocopy with
the Secretary for Administration.
(3)
(4) The Final Notice letter was received and signed for by Randall L. Brake on
April 2, 2004.
9. Exhibit ID -5, pp 1 — 3 consists of photocopies of Statements of Financial Interests
filed by Respondent for calendar years 1999, 2000 and 2001.
(1)
(2) The Statement of Financial Interests for calendar year 1999 is dated October
27, 2000, and bears a time -stamp of November 1, 2000.
The Statement of Financial Interests for calendar year 2000 is dated April
16, 2001, and bears a time -stamp of April 17, 2001.
(4) The Statement of Financial Interests for calendar year 2001 is dated
February 7, 2003, and bears a time -stamp of February 10, 2003.
10. Exhibit ID -6 is a photocopy of a page from the Pennsylvania Department of State
website providing basic entity information on Charles E. Brake Company, Inc.
(3)
Respondent filed the Statements of Financial Interests in his capacity as a
member of the Prevailing Wage Appeal Board.
Brake, 05 -002 -P
Page 6
(1) Randall L. Brake is listed as President, Vice - President and Treasurer of
Charles E. Brake Company, Inc.
11. Exhibit ID -7 is a photocopy of the Articles of Amendment - Domestic Business
Corporation for Charles E. Brake Company, Inc.
(1) Randall L. Brake signed the Articles of Amendment in his capacity as
President of Charles E. Brake Company, Inc.
12. Exhibit ID -8 is a photocopy of the Pennsylvania Prevailing Wage Act, 43 P.S. §
165 -1 et seq, §§ 165 -1, 165 -2, 165 -2.2, 165 -3, 165 -4.
13. Brake was a "public official" for calendar year 2002.
(a) Brake continued as a public official until May 29, 2003.
14. Brake did not file a Statement of Financial Interests for calendar year 2002.
15. Brake is not a credible witness.
(a) Brake contested the fact that he was a member of the Board in calendar year
2002, but claimed that he filed a Statement of Financial Interests for
calendar year 2002.
(b) Brake testified that his 2002 calendar year Statement of Financial Interests
that he purportedly filed "never got to the proper source."
(c) Brake admitted that the first and final Notice letters from the State Ethics
Commission were accurately sent to his home address, but claimed that he
never received those Notices.
(d) Brake testified that there was "never a problem" with filing his Statements of
Financial Interests for prior calendar years when, in fact, he had been
delinquent in filing his Statements of Financial Interests for calendar years
1999 and 2001.
(f)
(e) With respect to his history of non - compliance, Brake testified that he "[could
not] recollect anything."
With respect to the first and final Notice letters from the State Ethics
Commission, Brake testified that he had no recollection of receiving those
documents.
II. DISCUSSION:
Harold L. Brake (Respondent or Brake) has been a Member of the Prevailing Wage
Appeal Board (Board) from December 6, 1995, to May 29, 2003.
As a Board Member, Respondent was at all times relevant to these proceedings a
"public official" subject to the provisions of the Public Official and Employee Ethics Act
( "Ethics Act "), 65 Pa.C.S. §1101, et seq.
Pursuant to Section 1104(a) of the Ethics Act, Respondent was specifically required
to file a Statement of Financial Interests for calendar year 2002 with the State Ethics
Commission and the Board. The allegation is that Respondent failed to file a Statement of
Financial Interests for calendar year 2002 in accordance with Section 1104(a).
Brake, 05 -002 -P
Page 7
Section 1104(a) provides:
§1104. Statement of financial interests required to be filed
(a) Public official or public employee. - -Each public official of the
Commonwealth shall file a statement of financial interests for the preceding
calendar year with the commission no later than May 1 of each year that he
holds such a position and of the year after he leaves such a position. Each
public employee and public official of the Commonwealth shall file a
statement of financial interests for the preceding calendar year with the
department, agency, body or bureau in which he is employed or to which he
is appointed or elected no later than May 1 of each year that he holds such a
position and of the year after he leaves such a position. Any other public
employee or public official shall file a statement of financial interests with the
governing authority of the political subdivision by which he is employed or
within which he is appointed or elected no later than May 1 of each year that
he holds such a position and of the year after he leaves such a position.
Persons who are full -time or part -time solicitors for political subdivisions are
required to file under this section.
65 Pa.C.S. §1104(a).
The complete financial disclosure which Respondent as a Board Member was
required to provide in the Statement of Financial Interests form is statutorily mandated in
detail at Section 1105 of the Ethics Act, 65 Pa.C.S. §1105.
Section 1109(f) of the Ethics Act provides as follows:
§1109. Penalties
(f) Civil Penalty. -- In addition to any other civil remedy or criminal
penalty provided for in this chapter, the commission may, after notice has
been served in accordance with section 1107(5) (relating to powers and
duties of commission) and upon a majority vote of its members, levy a civil
penalty upon any person subject to this chapter who fails to file a statement
of financial interests in a timely manner or who files a deficient statement of
financial interests, at a rate of not more than $25 for each day such
statement remains delinquent or deficient. The maximum penalty payable
under this paragraph is $250.
65 Pa.C.S. §1109(f).
Having noted the issue and the applicable law, we shall now summarize the
relevant facts.
On December 6, 1995, Governor Tom Ridge appointed Brake to the Board (Exhibit
ID -1, p 3). Brake served on the Board until May 29, 2003, when the Governor appointed
another individual to replace him because his term had expired (Exhibit ID -1, p 4).
As a Board Member, Brake had the power and duty to hear and determine any
grievance or appeal pertaining to the Prevailing Wage Act, and promulgate rules and
regulations necessary to carry out the duties placed upon the Board by the Prevailing
Wage Act. 43 P.S. § 165 -2.2.
As a Board Member, Brake filed Statements of Financial Interests for calendar years
1999, 2000 and 2001. Brake filed his Statements of Financial Interests for calendar years
Brake, 05 -002 -P
Page 8
1999 and 2001 late after receiving delinquency notices from the State Ethics Commission.
Brake did not file a Statement of Financial Interests for calendar year 2002.
Procedurally, in accordance with Section 1107(5) of the Ethics Act, on February 6,
2004, the State Ethics Commission sent a Notice of Intent to Commence Civil Penalty
Proceedings (Notice letter) to Brake stating that Brake had failed to file a Statement of
Financial Interests for calendar year 2002. The Notice letter was sent to Respondent by
regular mail at 224 Rhondel Drive, St. Thomas, PA 17252. The Notice letter provided
Brake an opportunity to avoid the institution of civil penalty proceedings by filing an
accurate and complete Statement of Financial Interests for calendar year 2002 within
twenty (20) days of the date of the Notice letter, and directed Brake to file the white copy
(original) of the Statement of Financial Interests with the State Ethics Commission, the
yellow copy with the Prevailing Wage Appeal Board, and a photocopy with the Secretary
for Administration (Exhibit ID -3). Brake did not remedy the failure to comply with the Ethics
Act although given more than the usual grace period following Notice in which to do so.
A Final Notice letter containing the same information as the first Notice letter was
sent to Brake at the same address by certified mail, return receipt requested. The Final
Notice letter was received and signed for by Randall L. Brake on April 2, 2004. Randall L.
Brake is Respondent's adult son who works with Respondent at Charles E. Brake
Company, Inc. (Exhibit ID -4). Once again, Brake did not remedy the failure to comply with
the Ethics Act although given more than the usual grace period following Notice in which to
do so.
The Investigative Division then instituted formal proceedings against Brake by filing
with the State Ethics Commission and serving upon him a Petition for Civil Penalties. The
State Ethics Commission issued an Order to Show Cause, ordering Brake to show cause
why a civil penalty should not be levied against him. Brake filed an Answer to the Order to
Show Cause and requested a hearing.
Following the hearing, the Investigative Division of the State Ethics Commission
filed a brief in support of its position. Brake did not file a brief.
The Investigative Division argues that: Brake served on the Board from December
6, 1996, until his removal on May 29, 2003; as a Board Member, Brake fell within the
Ethics Act's definition of "public official" required to file Statements of Financial Interests;
Brake failed to file a Statement of Financial Interests for calendar year 2002, and
therefore, he transgressed Sections 1104 and 1105 of the Ethics Act, 65 Pa.C.S. §§ 1104,
1105; the State Ethics Commission provided notice to Brake by letter dated February 6,
2004, that he would be required to file a Statement of Financial Interests for calendar year
2002, and that he would be given an opportunity to do so without the imposition of a fine;
the notice letter of February 6, 2004, directed Brake to file the white original copy with the
State Ethics Commission; the State Ethics Commission provided final notice to Brake by
letter dated April 1, 2004, which letter contained the same information as the first notice
letter; and the State Ethics Commission sent the final notice letter by certified mail, return
receipt requested, and Randall L. Brake, Respondent's adult son signed and received the
notice letter. The Investigative Division further argues that in the absence of mitigating
circumstances, Brake should be assessed the maximum civil penalty of $250 given his
history of non - compliance with respect to Statements of Financial Interests for prior
calendar years.
We must now determine whether Brake as a Board Member failed to file a
Statement of Financial Interests for calendar year 2002 in violation of Sections 1104 and
1105 of the Ethics Act.
At the hearing, Brake acknowledged that as a Board member, he was required to
file Statements of Financial Interests. However, with respect to the allegation that he failed
Brake, 05 -002 -P
Page 9
to file a Statement of Financial Interests for calendar year 2002, Brake testified that he was
unsure whether he even served on the Board in 2002. Respondent further testified that he
could not recall whether he received the "first Notice Letter" of February 6, 2004, from the
State Ethics Commission regarding his failure to file a Statement of Financial Interests for
calendar year 2002. However, Respondent admitted that the "second Notice Letter" was
signed for and received by Randall L. Brake. Respondent claimed that he filed his
Statement of Financial Interests for calendar year 2002 with the Board Chairman, but did
not file it with the State Ethics Commission.
We initially determine that Brake served on the Board in the year 2002. Exhibit ID-
1, p 4 irrefutably establishes his service on the Board during that year.
We further determine that Brake did not file a Statement of Financial Interests with
the State Ethics Commission for calendar year 2002. Cynthia Lynch, Director for
Administration for the State Ethics Commission, testified that she checked the
Commission's records regarding Brake's filing status for calendar year 2002 and
determined that he was indeed a non - filer.
As for Brake's testimony that he never received the Notice letters sent by the State
Ethics Commission, we do not find him to be credible for the following three reasons. First,
it would appear that Brake was exercising "selective memory" with respect to the events
surrounding and leading up to the civil penalty proceedings initiated against him. Brake
repeatedly claimed that he could not recall specific matters relevant to these proceedings,
as for example, whether he actually served on the Board in 2002; whether he received the
first and final notice letters from the State Ethics Commission; and whether he had a prior
history of non - compliance. Second, Brake's testimony that he was not a Board member in
2002, yet he filed a Statement of Financial Interests with the Board for that calendar year,
is contradictory and nonsensical. Third, Brake has a history of non - compliance. Cynthia
Lynch testified that Brake was also delinquent in filing Statements of Financial Interests for
calendar years 1999 and 2001.
An application of Section 1109(f) to this case establishes that this Commission has
the discretion to levy a maximum civil penalty against Brake for each delinquent or
deficient Statement of Financial Interests.
There is nothing of record that would constitute a defense or excuse for Brake's
failure to comply with the Ethics Act. Brake has failed to show cause why a civil penalty
should not be levied against him in this matter.
We find that Brake, as a Member of the Prevailing Wage Appeal Board, failed to
comply with Section 1104(a) of the Ethics Act, 65 Pa.C.S. §1104(a), when he failed to file a
Statement of Financial Interests for calendar year 2002 with the State Ethics Commission.
We hereby levy one civil penalty against Brake at the rate of Twenty -Five Dollars
($25.00) per day, for each day his Statement of Financial Interests for calendar year 2002
has remained delinquent. Given the number of days during which the Statement of
Financial Interests has remained delinquent, the resultant amount to be levied against
Brake is Two - Hundred and Fifty Dollars ($250.00).
Brake shall be ordered to make payment of the above civil penalty in the amount of
$250.00 within 30 days of the issuance of this adjudication and Order, by forwarding a
check to this Commission made payable to the Commonwealth of Pennsylvania, for
deposit in the State Treasury.
Brake shall be ordered to file a complete and accurate Statement of Financial
Interests for calendar year 2002 with this Commission within 30 days of the issuance of
this adjudication and Order.
Brake, 05 -002 -P
Page 10
Failure to comply with any provision of this Order will result in the initiation of an
appropriate enforcement action.
III. CONCLUSIONS OF LAW:
1. Harold Brake ( "Brake "), as a Member of the Prevailing Wage Appeal Board, was at
all times relevant to these proceedings a "public official" subject to the provisions of
the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq.
2. Brake, as a Member of the Prevailing Wage Appeal Board, failed to comply with
Section 1104(a) of the Ethics Act, 65 Pa.C.S. §1104(a), when he failed to file a
Statement of Financial Interests for calendar year 2002 with the State Ethics
Commission and the Prevailing Wage Appeal Board.
3. Notice of the delinquency of Brake's Statement of Financial Interests for calendar
year 2002 was previously served upon him in accordance with Section 1107(5) of
the Ethics Act, 65 Pa.C.S. §1107(5).
4. Based upon the totality of the circumstances in this case, a civil penalty in the total
amount of $250.00 is warranted.
IN RE: Harold Brake,
Respondent
File Docket: 05 -002 -P
Date Decided: 12/12/05
Date Mailed: 12/23/05
ORDER NO. 239 -S
1 Harold Brake ( "Brake ") as a Member of the Prevailing Wage Appeal Board, failed to
comply with Section 1104(a) of the Public Official and Employee Ethics Act ( "Ethics
Act "), 65 Pa.C.S. §1104(a), when he failed to file a Statement of Financial Interests
for calendar year 2002 with the State Ethics Commission and the Prevailing Wage
Appeal Board.
2. This Commission hereby levies one civil penalty against Brake at the rate of
Twenty -Five Dollars ($25.00) per day for each day his Statement of Financial
Interests for calendar year 2002 has remained delinquent, for a total civil penalty of
Two - Hundred and Fifty Dollars ($250.00). Brake is ordered to pay the said civil
penalty in the total amount of $250.00 within 30 days of the issuance of this Order,
by forwarding a check to this Commission payable to the Commonwealth of
Pennsylvania for deposit in the State Treasury.
3. Brake is ordered to file a complete and accurate Statement of Financial Interests for
calendar year 2002 with this Commission within 30 days of issuance of this Order.
4. Failure to comply with any provision of this Order will result in the initiation of an
appropriate enforcement action.
BY THE COMMISSION,
Louis W. Fryman, Chair