Kistler v. Commonwealth, State Ethics Commission
22 A.3d 223
| Pa. | 2011Background
- Appellee Kenneth Kistler served on the Carbon-Lehigh Intermediate Unit Board and chaired its building committee involved in two construction projects.
- Kistler owned and led two related businesses, which sought contracts with Roth’s firms connected to the CLIU projects.
- In 2002, Kistler abstained from votes on the garage project after learning Roth’s involvement and possible benefit to his own company.
- The Commission investigated possible Ethics Act violations; it concluded Kistler unintentionally violated §§1103(a) and 1103(f) based on his June 17, 2002 vote and subsequent subcontracts.
- Commonwealth Court reversed, finding no evidence that the vote led to the garage subcontract or that bidding was not required by statute.
- Pennsylvania Supreme Court affirmed the Commonwealth Court, holding that §1103(a) requires intent and that §1103(f) does not mandatorily require competitive bidding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §1103(a) require intent to violate | Commonwealth contends a public official may violate §1103(a) without intent. | Kistler argues no §1103(a) violation absent awareness and intent to obtain private benefit. | Intent required; no §1103(a) violation found. |
| Does §1103(f) require competitive bidding for open and public process | Commonwealth argues open process mandates competitive bids. | Kistler argues open process does not necessarily mean bidding. | Open and public process need not require competitive bidding. |
Key Cases Cited
- Kraines v. Pennsylvania State Ethics Commission, 805 A.2d 677 (Pa. Cmwlth. 2002) (defines 'use' of office for conflict of interest)
- Yocabet v. Pennsylvania State Ethics Commission, 531 A.2d 536 (Pa. Cmwlth. 1987) (addresses intent in conflict cases and self-appointment to office)
- McGuire v. State Ethics Commission, 657 A.2d 1346 (Pa. Cmwlth. 1995) (distinguishes mistaken payment from 'use' of office)
- Pulice v. State Ethics Commission, 713 A.2d 161 (Pa. Cmwlth. 1998) (no conflict where creation of new position benefited district generally)
- Rebottini v. State Ethics Commission, 634 A.2d 743 (Pa. Cmwlth. 1993) (board members create positions to circumvent salary-setting rules)
- Snyder v. State Ethics Commission, 686 A.2d 843 (Pa. Cmwlth. 1996) (conflict found where undisclosed interests and active promotion occurred)
- Commonwealth v. Parmar, 710 A.2d 1083 (Pa. 1998) (discussion of mens rea in Ethics Act interpretation)