Commissioner Candidate: 'Gift' Likely a Violation of Township’s Code of Ethics

Rich Booker, the Republican candidate for commissioner in Radnor's Second Ward, submitted this letter to Radnor Patch:

I wanted to follow up on my March 26 article regarding the King of Prussia Road development.  As indicated I have been a practicing lawyer for the last 16 years, and I have reviewed this situation with three other lawyers who are familiar with municipal and governmental law.  All of us believe that there is a conflict or the perception of a conflict with the $50,000 gift accepted by the Township in March.  Further, it is evident that the very generous gift is likely a violation of the Township’s Code of Ethics.

Radnor’s definition of a conflict of interest (set forth below in the Radnor Township Charter, and, thereafter, in the ethics section) is broad.  Specifically, the Charter’s definition of conflict does not limit gifts to direct personal quid pro quo.  In fact, the Charter defines conflicts of interest, in section 9.05(A)(2)  as any gift, favor, service, or commission solicited or accepted directly or indirectly that “might reasonably tend to influence” the discharge of official duties.  I would also contend that the acceptance of the gift is a violation under Section 39-5.B.(3) of the Township Code (also reproduced below for reference).

There is no question that the gift might reasonably tend to influence the Commissioners in their review and approval of the 145 King of Prussia Road  development.  Whatever you think of the sports facility project, the acceptance of the gift under the circumstances is improper.  

I also note that John Fisher said that Bob Zienkowski “solicited” the donation (Board of Commissioner’s meeting 3-18-13).  Assuming that he is correct, then the solicitation of the gift was also improper, and a violation of the Township Charter.

I recently filed a “right to know” request with the Township, asking for all documents related to this gift.  I received very little; however, what was received did not counter my assertion that it was improper to accept the gift.  The documents provided did however show, that the Resolution was substantively changed subsequent to the meeting, and therefore that it was not properly approved.

The copy of Resolution 2013-26 that was provided to me as the “final” version approved by the Township is not the one provided for public review on March 18^th.  The Township administration substantively changed Resolution No. 2013-26, from the one that they published on March 18^th.  Attached is the resolution that they gave out (and published) originally [first file].  It shows “appropriate donations” at the end of the operative clause.  That was later changed to “donation  . . . in the amount of $50,000.. [sic]”  [See last file.]  That later, final, version of the Resolution was not approved by the Board of Commissioners. 

The substantive change in language of the resolution mentioned by Jim Higgins at the March 18^th meeting was not seconded and voted upon by the Commissioners.  The change was made administratively – it was not approved by a majority of the Board (see video of March 18, 2013 meeting).  The Resolution 2013-26 that the Township claims is the final approved version, was never, repeat never, provided to the public for review, and was changed after the meeting without proper authorization by the Commissioners.  Consequently, my view is that the Resolution was not properly approved, and should be vacated, as its approval did not comport with Pennsylvania’s Sunshine Act.  The resolution should be re-published, and approved in accordance with Pennsylvania law.

The Township administration apparently knew that this would be a controversial resolution, and decided initially to withhold the name of the donor from the public (again, see original resolution 2013-26).  Elaine P. Schaefer indicated that this was because the name of the donor was not "confirmed" at the time that the Board packet was produced. 

However, the letter confirming the gift (attached) is dated March 12^th.  The Board packet file on the Township website that contained resolution 2013-26 indicates that it was created on the afternoon of March 14^th, 2013.  As indicated by two Commissioners (Jim Higgins and John Nagle), the gift was discussed and reviewed at least a week prior to the March 18^th meeting.  The file was created just a few days prior to the meeting.  Consequently, Ms. Schaefer’s statement that the gift was not confirmed prior to publishing the Board packet is false.

Undoubtedly, the Commissioners and Township administration knew about the gift by the time the Board packet was created, and chose not to include the name of the donor of the gift at that time; likely, in an attempt to avoid public disclosure prior to the meeting. 

To date, absolutely no substantive legal grounds or precedent has been provided by the Township staff, or its counsel that would justify the solicitation and acceptance of this gift.  Until such time as Elaine P. Schaefer as President of the Board of Commissioners comes forward with additional information, I can only conclude that she has made false statements to the public.  Further, that it was improper for the Township Manager to solicit the $50,000 gift, and for the Board of Commissioners to accept the gift in this instance.  Finally, the resolution purporting to authorize the gift is not technically correct.

If the study is produced under these circumstances, it cannot meet the basic requirements of objectivity in order to be seriously considered as a reference document for the Township.  Put differently, if the study is undertaken in this manner it will be a waste of money and virtually useless as a reference for the community to use in making its decision on the sports facility project.

Rich Booker

Radnor, PA

§ 9.05. Conflicts of interest.

A. No elected or appointed official of the township and no township employee shall engage in any activity as follows:

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(2) Solicit or accept directly or indirectly, any gift, favor, service, commission or other consideration that might reasonably tend to influence that official or employee in the discharge of the duties of office.

§ 39-5. Conflicts of interest.

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B. Specific conflicts of interest are enumerated below for the guidance of officials and employees:

(3) Gifts and favors.   No official or employee shall accept any gift or promise of future benefit, whether in the form of service, loan, thing or promise, from any person, firm or corporation which to his knowledge is interested, directly or indirectly, in any manner whatsoever in business dealings with the Township; nor shall any such official or employee accept any gift, favor or thing of value that may tend to influence him in the discharge of his duties or grant in the discharge of his duties any improper favor, service or thing of value. Casual business luncheons, dinners or refreshments shall not constitute a "gift" within the meaning of this subsection.