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Ex-IU board member didn't violate ethics laws, court says

Published June 28. 2011 05:01PM

Former Carbon-Lehigh Intermediate Unit board member Kenneth Kistler did not violate state ethics laws when he voted to give an architect a contract to build a school while Kistler's companies were vying to subcontract work with the same architect on a related project.

The Pennsylvania Supreme Court on June 22 rejected an appeal by the state Ethics Commission, which had ruled in 2007 that Kistler, of New Tripoli, had unintentionally violated ethics laws when his businesses, Kistler Pole Building Company and Kistler Building Supply, sought to subcontract the bus garage to be built as part of the new school. The appeal was of a Commonwealth Court ruling that had overturned the Ethics Commission decision.

Kistler's companies also were awarded contracts without competitive bidding, according to the 15-page court ruling, written by Justice Seamus P. McCaffery.

According to the ruling, the Ethics Commission in June 2007 had determined that Kistler had unintentionally violated provisions of the Public Official and Employee Ethics Act while serving as chairman of the board's building committee from 1998 through 2002.

The Supreme Court ruling states that the IU in late 1999 began discussing building a bus garage, bringing in architect Dale Roth in June 2001. Between February and March 2002, Roth told Kistler the design might involve a pole building, and Kistler agreed to provide pricing and planning information.

Kistler quickly resigned from the building committee in light of his companies' possible involvement in the projects. His resignation from the committee was accepted on March 18, 2002. The IU board's solicitor advised Kistler that he should abstain from voting on the garage project. The board voted to appoint Roth's firm to handle the projects; Kistler abstained from the vote.

In May 2002, Roth told Kistler his company would be chosen for the garage project. The IU board accepted the contract that July. Kistler also abstained from that vote. His company built the garage in September 2002, completing the project in February 2003.

In June 2002, the IU board voted to terminate its lease for a building that housed the Lehigh Learning and Adjustment School and to hire Roth to build a new school. The former building had a mold problem, the ruling stated. Kistler voted for both motions. In April 2003, Kistler withdrew from any involvement in the project after learning Roth was considering a pole building. The IU board moved forward with the project, which Kistler's company was hired by Roth to build.

The Ethics Commission on Aug. 4, 2004, notified Kistler it would be investigating him for possible violations. Kistler asked the IU solicitor if accepting the contracts would violate any ethics laws. The solicitor advised him that it would not. Kistler started construction on the school in September 2004 and completed it in January 2005.

The Ethics Commission held hearings, and determined that Kistler had unintentionally violated the Ethics Act via three actions: One June 17, 2002, when he voted to authorize Roth to build the school while he sought the garage construction job; on July 12, 2002, and on June 17, 2004, when he subcontracted to build the garage and school because the IU board had not sought competitive bids before awarding the projects to Roth.

The Ethics Commission concluded that all three violations were unintentional, because Kistler had voted and entered into the subcontracts on the IU solicitor's advice.

However, the Commonwealth Court reversed that ruling, determining that Kistler had not intended his June 17, 2002, vote to lead to a subcontract with Roth to build the garage, and that there was no evidence that the vote did lead to the subcontract. Further, the court ruled that while the Ethics Act requires "an open and public process" for awarding bids, it does not require competitive bidding.

On Tuesday, Kistler's attorney, Edmund Healy of the Steckel and Stopp law firm, Slatington, said the Ethics Commission became involved after being contacted by the owner of the former school building.

"What this case represents to me initially is hyperactivity on the part of state ethics prosecutors to cobble together a case through scare tactics and innuendo," Healy said. "They filed initially a 105-paragraph complaint, single spaced, about 30 pages long, accusing (Kistler) of all sorts of wrong doing, without properly investigating. Following a hearing in front of the Ethics Commission, they reduced the finding down to six violations, and imposed no fine whatsoever."

The IU subsequently appealed the Ethics Commission's ruling to Commonwealth Court. The Ethics Commission then challenged the Commonwealth Court's determination to the state Supreme Court.

Healy said that Kistler was an IU board member and a member of Northwestern Lehigh school board for about 25 years before retiring about four years ago. Kistler has "donated thousands and thousands of dollars to Northwestern Lehigh schools and to the IU and to his church," Healy said.

"He's an outstanding man. I can't praise him enough. He stands as a lesson and an example to public officials everywhere, to announce as a public official his private potential interests in contracts orally and in writing before voting, and then to religiously abstain from voting and discussing those contracts as a public official thereafter," Healy said.

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