Created By: Tobie Ronkartz on 08/28/1998 at 01:56 PM
| CN 1995-253|
Category: Ethics Rulings
LOUISIANA BOARD OF ETHICS
DATED: August 20, 1998 OPINION NO. CN 95-253
RE: In the matter of William Kucharski
The Board of Ethics (the “Board”) pursuant to the authority contained in LSA-R.S. 42:1141, conducted a private investigation concerning information that William Kucharski, Secretary of the Louisiana Department of Environmental Quality, may have violated Section 1111C(2)(d) of the Louisiana Code of Governmental Ethics (LSA-R.S. 42:1101 et seq.) (the “Code”) by sharing in income received by his wife, Lynn Kucharski, as salary for services performed for McLaren/Hart Environmental Engineering Corporation (“McLaren/Hart”), at a time when that corporation had substantial economic interests which Mr. Kucharski could affect by the performance of his official responsibilities.
On the basis of information obtained by the Board during the course of this investigation, and with the concurrence of William Kucharski, the Board now makes the following essential:
I. William Kucharski served as the Secretary of the Louisiana Department of Environmental Quality (“DEQ”) from January 1994 to January 1996.
FINDINGS OF FACT
2. Lynn Kucharski, the wife of William Kucharski, was employed by McLaren/Hart as the head of the Federal Programs Division from November 1994 to January 1997.
3. BCI Louisiana, L.L.C. (“BCI”), an entity controlled by BC International Corporation, purchased the Shepperds Refinery, also known as the BCI Mermentau Facility, in late 1994. Subsequent to acquisition of the site, BCI signed an agreement with DEQ requiring BCI to decontaminate the sediment that had collected in a sludge pit within the plant.
4. McLaren/Hart submitted a bid to perform the clean-up necessary on the BCI/Shepperds Refinery site. McLaren/Hart was the low bidder and was awarded the contract on May 4, 1995. McLaren/Hart satisfactorily completed the job and was compensated $57,600.
5. DEQ remained on-site during the Shepperds Refinery clean-up to observe and note whether McLaren/Hart’s performance met with environmental regulations. If the clean-up had not been completed to DEQ’s satisfaction, then DEQ would have required BCI to redo the job correctly. Therefore, if McLaren/Hart had not done the job to DEQ’s satisfaction, then McLaren/Hart would not have been paid.
6. Between May 1995 and January 1996, William and Lynn Kucharski received approximately $100,000 as compensation for services rendered by Lynn Kucharski to McLaren/Hart representing the payment of Ms. Kucharski’s salary and related benefits. Ms. Kucharski did not receive any bonuses or commissions from McLaren/Hart. Additionally, Ms. Kucharski did not have any responsibility with respect to nor did she receive any compensation for services related to the Shepperds Refinery clean-up.
7. If William Kucharski was called to testify in a public hearing on this matter, he would state that he did not intend to violate any provision of the Ethics Code.
II. At issue in this case is Section 1111C(2)(d) of the Code of Governmental Ethics.
Section 1111C(2)(d) of the Code prohibits a public servant from receiving compensation for services rendered to certain prohibited sources contained in Section 1115 of the Code. Section 1111C(2)(d) states:
No public servant and no legal entity in which the public servant exercises control or owns an interest in excess of twenty-five percent, shall receive any thing of economic value for or in consideration of services rendered, or to be rendered, to or for any person during his public service unless such services are:
(d) neither performed for nor compensated by any person from whom such public servant would be prohibited by R.S. 42:1115A(1) or (B) from receiving a gift.
The pertinent portion of Section 1115 provides:
B. No public employee shall solicit or accept, directly or indirectly, any thing of economic value as a gift or gratuity from any person or from any officer, director, agent, or employee of such person, if such public employee knows or reasonably should know that such person:
(2) Has substantial economic interests which may be substantially affected by the performance or nonperformance of the public employee’s official duty.
OPINION While it is the opinion of the Board that William Kucharski did not intend to violate Section 1111C(2)(d) of the Code, one of the purposes of the Code is to ensure that public employees are independent and impartial and that public office and employment are not used for private gain. LSA-R.S. 42:1101B. In Fulda v. Louisiana Office of Public Health, 96-0647 (La. 5/10/96); 673 So.2d 201, the Louisiana Supreme Court reiterated that the primary purpose of the Code “is to prevent not only the actuality of conflicts of interest, but also to prevent the occurrence of those situations that tend to create a perception of conflict of interest. It does this by delineating situations that present too great a danger of a conflict of interest occurring.” In Glazer v. Commission on Ethics for Public Employees, 431 So.2d 752, 756 (La. 1983), the Supreme Court defined a conflict of interest “as a situation which would require an official to serve two masters, presenting a potential, rather than an actuality, of wrongdoing.”
It is the opinion of the Board that William Kucharski violated Section 1111C(2)(d) of the Louisiana Code of Governmental Ethics by sharing in income received by his wife, Lynn Kucharski, as salary for services performed for McLaren/Hart at a time when that corporation had substantial economic interests which Mr. Kucharski could affect by the performance of his official responsibilities, albeit that Mr. Kucharski did not intentionally violate this section or act in any way to specifically affect the substantial economic interests of McLaren/Hart.
The Board is authorized to impose civil penalties upon finding that a violation of the Code has occurred. In this particular situation, given the facts outlined above, along with the fact that William Kucharski fully cooperated with the Board during the course of the investigation, it is the conclusion of the Board that the interest of the public would be served by the imposition of a $1250 civil penalty.
IV. For the foregoing reasons:
DECREE AND ORDER
IT IS ORDERED, ADJUDGED AND DECREED that the Board finds as a matter of fact and as a conclusion of law that William Kucharski violated Section 1111C(2)(d) of the Louisiana Code of Governmental Ethics by sharing in income received by his wife, Lynn Kucharski, as salary for services performed for McLaren/Hart Environmental Engineering Corporation (“McLaren/Hart”), at a time when that corporation had substantial economic interests which Mr. Kucharski could affect by the performance of his official responsibilities.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a civil penalty of $1250 be and is hereby imposed upon William Kucharski.
BY ORDER OF THE BOARD this 20th day of August , 1998.
s/Robert L. Roland s/T.O. Perry, Jr.
Robert Roland, Chairman T.O. Perry, Jr., Member
s/Harry Blumenthal, Jr. s/Ronald L. Sawyer
Harry Blumenthal, Jr., Vice-Chairman Ronald L. Sawyer, Member
Absent and did not participate s/Nathan J. Thornton, Jr.
Dr. Robert Bareikis, Member Nathan J. Thornton, Jr.,Member
s/E.L. Guidry s/Edwin O. Ware
Judge E. L. Guidry, Member Edwin O. Ware, III, Member
s/Virgil Orr Absent and did not participate
Dr. Virgil Orr, Member Rev. Carole Cotton Winn, Member
s/Revius Ortique, Jr.
Justice Revius Ortique, Jr., Member
CONSENT The undersigned (a) stipulates to the facts found by the Board; (b) waives the procedural requirements contained in Section 1141 of the Code; (c) consents to the publication of this opinion; (d) agrees to comply with the conditions and orders set forth in this opinion; and (e) agrees not to seek judicial review of the findings and actions taken in this opinion.