HomeMy WebLinkAbout239SR BrakeIn re: Harold Brake
File Docket: 05 -002 -P
X -ref: Order No. 239 -S -R
Date Decided: 2/23/06
Date Mailed: 3/13/06
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
The State Ethics Commission received a request for reconsideration on December
28, 2005, with respect to Order No. 239 -S issued on December 23, 2005. 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.
This Reconsideration Order is final and shall be made available as a public
document on the fifth (5th) business day following the date of issuance of this Order.
Brake, 05 -002 -P
Page 2
DISCUSSION
On December 23, 2005, we issued Brake, Order No. 239 -S, following our review of
the record in this case.
This case involves civil penalty proceedings against Harold Brake, a Member of the
Prevailing Wage Appeals Board, who failed to file a Statement of Financial Interests (SFI)
for the calendar year 2002. The matter went to a hearing, after which, we found that:
1. Harold Brake ( "Brake ") as a Member of the Prevailing Wage Appeals 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 Appeals 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.
Following the issuance of Order No. 239 -S on December 23, 2005, Vincent J.
Dopko, Chief Counsel for the State Ethics Commission, was notified by Assistant Counsel
Thomas Diehl of the Investigative Division, that contrary to the statement in Order No.
239 -S that Respondent had not filed a Brief, Respondent had, in fact, filed a Brief
consisting of a two -page letter dated October 11, 2005, which was received by the
Investigative Division on November 4, 2005. Upon receipt of this new information, Chief
Counsel Dopko immediately advised both Respondent and Assistant Counsel Diehl by
letter dated December 23, 2005, that in light of the fact that the Commission did not have
the benefit of Respondent's Brief during its deliberations, he was required to apprise the
Commission of these developments at the Commission's next regularly scheduled
executive session. Chief Counsel Dopko also advised the parties that the Commission's
review and possible reconsideration of the matter would not preclude Respondent from
filing a request for reconsideration.
On December 28, 2005, Respondent filed a Request to Vacate Order No. 239 -S
and Dismiss the Civil Penalty Proceeding at Docket Number 05- 002 -P, to which the
Investigative Division filed an Answer. We shall regard the aforesaid Request of the
Respondent as a Request for Reconsideration.
In requesting reconsideration, Respondent proffers the following arguments: On
December 23, 2005, Respondent received a packet from the State Ethics Commission
containing, inter alia, a copy of Order No. 239 -S along with a cover letter from Chief
Counsel Vincent J. Dopko indicating that a blank SFI was included, which form was not
included; on December 27, 2005, Respondent received another letter from Chief Counsel
Dopko indicating that "[Respondent's] Brief to the Chairman of the Commission had been
withheld and not made available to the Commission for their consideration; various
statements within that Brief refuted statements of "'fact" cited in Assistant Counsel Thomas
Brake, 05 -002 -P
Page 3
S. Diehl's Brief and raised new questions as to "'facts" stated and unfounded from hearing
testimony; Respondent took strong exception to Assistant Counsel Diehl's statement in his
Brief that Respondent is not a credible witness, which statement was "personally
slanderous and represent[ed] a biased personal opinion rather than fact "; and the entire
case was bungled by staff member(s) of the State Ethics Commission and turned into a
"political witch hunt" raising the possibility that critical evidence for a Commonwealth
proceeding involving potential civil penalties had been withheld, suppressed, and
tampered with by an Ethics Commission staff member(s).
The Investigative Division raises these arguments: The Investigative Division does
not object to Respondent's request to vacate Order No. 239 -S, however, it does object to
the request to dismiss civil penalty proceeding No. 05 -002 -P because it would obviously
prejudice the Investigative Division and unduly benefit Respondent; the State Ethics
Commission staff who Respondent alleges has "withheld, suppressed and tampered with"
evidence is the same staff who first informed the Commissioners that Respondent had filed
a Brief contrary to the finding in Order No. 239 -S; Respondent is responsible for the fact
that the Commission never received a copy of his brief because he failed to comply with
the Hearing Officer's instructions to file an original and eleven copies of the Brief, with one
copy served upon opposing counsel; Respondent is not in a position to argue that he has
been prejudiced by the delay since the Commissioners were apprised of Respondent's
Brief on December 23, 2005, the same day that Order No. 239 -S was issued; and
Respondent's Brief does not put forth anything new for the Commission to consider and
therefore, the State Ethics Commission should reach the same conclusion that it reached
in Order No. 239 -S.
In this case, it is clear that there has been a material error of fact. Before issuing
Order No. 239 -S, we did not know that Respondent had timely filed a Brief and therefore
we did not have the benefit of reviewing Respondent's written arguments during our
deliberations. It would appear that the reason that copies of Respondent's Brief failed to
make it into our hands was because Respondent failed to comply with the Hearing
Officer's Briefing Schedule, which specifically provided: an original and eleven copies to
be filed (received at the State Ethics Commission) contemporaneously by the parties on or
before 12:00 p.m. on November 7, 2005 with one copy served upon opposing counsel."
Contrary to the Hearing Officer's directive, Respondent filed only the original of his Brief
with no copies, which original was received by Assistant Counsel Diehl. However, we are
mindful that Respondent is a pro se litigant and therefore we will hold him to less stringent
standards. Accordingly, we shall vacate Order No. 239 -S and grant reconsideration so that
we may review Respondent's Brief.
Respondent in his Brief dated October 11, 2005, argues that: Respondent's SFI for
calendar year 2002 was filed through the Prevailing Wage Appeals Board Chairman,
Stager Smith, as had all previously filed and received reports; Respondent offered to fill
out a replacement copy on the date of the hearing, which offer was refused by the Board
Counsel; Respondent was appointed to an initial term on the Prevailing Wage Appeals
Board on December 6, 1995; the Investigative Division failed to present any evidence that
Respondent had ever been appointed to a second term; the Investigative Division failed to
present any evidence that Respondent's term had ended on a certain date; the
Investigative Division failed to present any evidence that Respondent had ever taken an
oath of office; the Investigative Division failed to present any evidence that Respondent
had participated in any Prevailing Wage Appeals Board meetings in either 2001 or 2002;
the Investigative Division failed to present any evidence that Respondent had received any
compensation during 2001 or 2002; the Investigative Division failed to present any
evidence that Respondent had received any certified mailings; the Investigative Division
failed to present any evidence that all previous years' SFIs had not been filed through
Stager Smith; the Investigative Division failed to present evidence to show who was
Chairman of the Charles E. Brake Co., Inc., Respondent's listed employer on previous
Brake, 05 -002 -P
Page 4
financial reports; and the evidence presented at the hearing indicated that all SFIs for the
previous calendar years had been properly filed.
We shall now address each of Respondent's arguments seriatim.
In response to Respondent's argument that he filed his 2002 calendar year SFI with
the Chairman of the Prevailing Wage Appeals Board, Respondent provided insufficient
evidence that such was done. At the hearing, Respondent failed to produce a time -
stamped copy of his calendar year SFI, merely claiming that he "filed it with a state
employee, but apparently, it never got to the proper source." (N.T. p 41). Respondent
admitted that he did not file the SFI in question with the State Ethics Commission, which
testimony was consistent with the testimony of Cynthia Lynch, Director for Administration
for the State Ethics Commission, who stated that 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. Based upon the foregoing, we determine that Brake failed to file his
2002 calendar year SFI with the Prevailing Wage Appeals Board and the State Ethics
Commission.
In response to Respondent's second contention that he offered to fill out a
"replacement copy" [of his 2002 calendar year SFI] on the date of the hearing, [but] the
offer was refused by the Board Counsel," the record reflects that a "first Notice Letter" from
the State Ethics Commission dated February 6, 2004, was sent to Respondent at 224
Rhondel Drive, St. Thomas, PA by regular mail advising Respondent, interalia, that: (1)
Respondent had failed to file an SFI for calendar year 2002; (2) the State Ethics
Commission had the authority to assess a civil penalty against him of $250; (3)
Respondent had the opportunity during the twenty (20) day grace period to avoid the
institution of civil penalty proceedings against him by filing a complete and accurate SFI for
calendar year 2002 with the State Ethics Commission and the Prevailing Wage Appeals
Board; and (4) Respondent's failure to file a complete and accurate SFI as directed would
result in the commencement of civil penalty proceedings against him. The record further
reflects that a "final Notice Letter" was sent to Respondent at the same address by certified
mail, return receipt requested, which letter contained the same information delineated
above. The certified letter was received and signed for by Respondent's adult son,
Randall L. Brake. Respondent did not respond to either of the non -filer notices sent by the
State Ethics Commission which extended to him both times a twenty (20) day grace period
in which to file the delinquent SFI without the imposition of a fine. Nor did Respondent
respond to the offer by the Investigative Division of the State Ethics Commission to settle
the matter for $100 prior to the hearing. In light of the foregoing, we find that Respondent
was given ample opportunity to comply with the Ethics Act by voluntarily filing his SFI at
any time during the statutory grace period(s), but simply chose not to. As to Respondent's
most recent request /motion that this Commission accept his delinquent SFI without the
imposition of a $250 civil penalty, we note that the Hearing Officer was not permitted to
rule on such motion as such was required to be deferred and submitted to this Commission
as part of the record for final disposition. See, 41 Pa.Code § 21.26(c).
In response to Respondent's several assertions regarding the lack of evidence
establishing that he served on the Prevailing Wage Appeals Board for more than one term,
we find that ID -1 pp 2, 3 and 4 establish that Respondent served on the Board from
December 6, 1995, the date of his appointment, to May 29, 2003, the date when he was
replaced due to the expiration of his term. Furthermore, ID -1, p 4 irrefutably establishes
Respondent's service on the Board in the year 2002.
Having determined that Respondent served on the Prevailing Wage Appeals Board
in 2002, Respondent's arguments regarding his participation in any Board meetings in
2001 or 2002, and his compensation in 2001 or 2002, are legally irrelevant.
Brake, 05 -002 -P
Page 5
In response to Respondent's contention that no evidence was presented to prove
that any certified mailings were received by him, Respondent testified that he could not
recall whether he received the "first Notice Letter" of February 6, 2004, but admitted that
his adult son, Randall L. Brake signed for and received the "second Notice Letter" of April
1, 2004. The Investigative Division produced a copy of the certified mail receipt that bore
the signature of Randall L. Brake on April 2, 2004. See, ID -4, p 3. We note that Rule 402
of the Pennsylvania Rules of Civil Procedure provides that original process may be served
by handing a copy at the residence of the defendant to an adult member of the
family with whom he resides; but if no adult member of the family is found, then to an adult
person in charge of such residence. Pa.R.C.P. No. 402(a)(2)(i). Based upon Rule 402,
we find that service upon Respondent's adult son constituted service upon Respondent.
Furthermore, we do not find Brake's testimony that he never received the Notice letters
sent by the State Ethics Commission, 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.
In response to Respondent's next contention that no evidence was presented with
respect to the identity of the Chairman of the Charles E. Brake Co. Inc., we simply note
that such evidence, if presented, would be irrelevant to what the Investigative Division was
ultimately trying to prove when it introduced the corporate documents for the Charles E.
Brake Co., Inc. The Investigative Division produced documentary evidence establishing
that Randall L. Brake is President of the Charles E. Brake Co., Inc. The Investigative
Division then established that Randall L. Brake is Respondent's adult son who works with
him at the Charles E. Brake Co., Inc. and who sometimes picks up Respondent's mail.
The Investigative Division next established that Randall L. Brake signed for the "second
Notice Letter" that was sent by certified mail. As noted above, we find that service upon
Respondent's adult son constituted service upon Respondent in accordance with Pa.
R.C.P. Rule No. 402.
In response to Respondent's argument that no evidence was presented to show that
all previous years' SF's had not been filed through the Chairman of the Prevailing Wage
Appeals Board, we simply note that it is not the Investigative Division's burden to prove
such a contention. We find that the Investigative Division met its burden in proving that
Respondent failed to file a Statement of Financial Interests for calendar year 2002 with the
Prevailing Wage Appeals Board and the State Ethics Commission. The Investigative
Division also established that Respondent had a history of non - compliance for prior
calendar years.
Finally, we reject Respondent's last argument that the evidence established that all
previous years' SF's had been properly filed. To the contrary, the Investigative Division
established that Respondent had a history of non - compliance for prior calendar years.
Having disposed of all of Respondent's arguments, we find that Brake served on the
Prevailing Wage Appeals Board in the year 2002. We further determine that Brake did not
file a Statement of Financial Interests with the Board or the State Ethics Commission for
calendar year 2002. Based upon these findings, we shall deny Respondent's request to
dismiss the civil penalty proceedings docketed to 05- 002 -P, as such would prejudice the
Investigative Division and unduly benefit the Respondent to whom as a pro se litigant, we
have granted reconsideration despite an error on his part to follow the Hearing Officer's
Brake, 05 -002 -P
Page 6
Briefing Schedule.
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 Appeals 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 the Prevailing Wage Appeals Board within 30 days of
issuance of this Order with one copy filed with this Commission for compliance verification
purposes.
Failure to comply with any provision of this Order will result in the initiation of an
appropriate enforcement action.
In Re: Harold Brake
File Docket: 05 -002 -P
X -ref: Order No. 239 -S -R
Date Decided: 2/23/06
Date Mailed: 3/13/06
RECONSIDERATION ORDER NO. 239 -S -R
1 The Respondent's Request to Vacate Order No. 239 -S and Dismiss the Civil
Penalty Proceeding at Docket Number 05 -002 -P is granted in part and denied in
part.
a. The Request to Vacate [and Reconsider] Order No. 239 -S is granted.
b. The Request to Dismiss the Civil Penalty Proceeding at Docket Number 05-
002-P is denied.
2. Harold Brake ( "Brake "), a public official, as a Member of the Prevailing Wage
Appeals 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 Appeals Board.
3. 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.
4. Brake is ordered to file a complete and accurate Statement of Financial Interests for
calendar year 2002 with the Prevailing Wage Appeals Board within 30 days of
issuance of this Order with one copy filed with this Commission for compliance
verification purposes.
5. Failure to comply with paragraphs 3 and 4 of this Order will result in the initiation of
an appropriate enforcement action.
BY THE COMMISSION,
Brake, 05 -002 -P
Page 8
Louis W. Fryman, Chair