Did Archie violate state Ethics Act before Universal vote?

School Reform Commission Chairman Robert Archie has had difficulty staying firmly on the sidelines during recent decisions to award controversial multimillion-dollar charter contracts to organizations with which he has acknowledged ties.

Archie caused murmurs in the audience at last week’s public SRC meeting when he openly championed Universal Companies just minutes before a critical vote to award the organization two charters potentially worth $45 million over five years. Archie’s deep ties to Universal led him to abstain from voting, but did not stop him from extensively touting the organization’s accomplishments.

The incident was also surprising because it came just two days after Mayor Michael Nutter launched a fact-finding inquiry into the controversy at Martin Luther King High, where Archie has acknowledged participating in a closed-door meeting about the fate of the school despite his connections to one of its potential charter operators.

Beyond eliciting audible reactions, Archie’s comments before the Universal vote on Wednesday may have been a violation of Pennsylvania’s Ethics Act.

“The duty is to abstain, even from commentary,” said Robin Hittie, chief counsel of the Pennsylvania Ethics Commission, when asked what the Ethics Act requires of public officials who must recuse themselves from a vote because of a potential conflict of interest.

Hittie would not comment on any specific individual or scenario, but her explanation of the Ethics Act was clear; “The duty is to abstain completely.” “That’s not just from voting, but from any use of the ‘authority of office’ in that matter,” she said. “Advocacy by a public official would be a use of [the?] ‘authority of office.'”

Archie maintained after the meeting that he had not advocated for Universal. He has since refused further comment.

District General Counsel Michael Davis said that in speaking out on the Universal contract prior to the vote Archie had not violated “in any way” the District’s code of ethics for employees, which also applies to the SRC members.

Any concern about Archie’s conduct, said Davis, is “a question for the state Ethics Commission,” which he acknowledged has oversight of the SRC.

Advocacy or a ‘refresher?’

Because it occurred in public, Archie’s conduct before the Universal vote was not as egregious as his behind-the-scenes involvement at King, said Michael Churchill, counsel at the Public Interest Law Center of Philadelphia.

But it was still problematic, Churchill said.

“The actions that were taken to endorse and assist Universal were in conflict with the Ethics Act,” he said. “The bottom line is [Archie was] not supposed to participate, and he did.”

Archie has historically recused himself from voting on matters relating to Universal Companies because his long association with founder Kenny Gamble, his service on two of Universal’s boards, and his law firm’s legal work for the organization.

But that did not stop him from speaking up for Universal right before his fellow commissioners voted 3-0 to award the organization charters to manage Audenried High and Vare Middle as so-called “Promise Neighborhood Partnership Charter Schools.”

Archie’s public comments came at a crucial moment during last Wednesday’s SRC meeting. Commissioners Joseph Dworetzky and Johnny Irizarry were asking probing questions of District staff and Universal Executive Vice President Shahied Dawan, and it was not clear whether they had yet made up their minds to approve the charters.

After one of Irizarry’s questions, Archie jumped in to respond on Dawan’s behalf.

“Let me make this full disclosure,” Archie began. “Universal Companies is a client of Duane Morris. I sit on the board of Universal Companies.”

Then, he told Dawan, “You’re being very modest” and proceeded for almost three minutes to tout Universal’s accomplishments. Archie cited the company’s success in rehabbing houses and managing the Universal Institute Charter School, pointed out the prominence of some other board members, and highlighted other efforts, including an annual health fair.

Irizarry had asked for more details on how Universal planned to improve Audenried.

“How do you plan to turn Audenried around?” Archie prompted Dawan. “You can take Universal Institute Charter School as a prime example. You built the school. Literally, built the school.”

“They have a track record of basically turning around neighborhoods and using the school as a magnet for it,” Archie then told the assembled audience and his fellow commissioners.

Following the meeting, Archie explained his view that his remarks did not constitute advocacy for Universal.

“I was merely refreshing [Dawan’s] recollection as to what Universal had done when I sat on his board,” he said.

District General Counsel Davis offered a similar assessment.

Archie “was simply asking questions to make sure that full information was obtained,” he said.

‘Sloppiness’ or a conflict of interest?

Archie’s actions before the Universal vote were clearly “unwise,” “sloppy” or “inappropriate,” in the words of three attorneys consulted by the Notebook.

But determining if they were a formal violation of the Ethics Act – which could mean sanctions or even prosecution – depends in part on whether his law firm has an ongoing financial interest in Universal or whether Archie currently sits on one of the organization’s boards.

Getting to the bottom of those questions, however, has not been easy.

Even Davis isn’t exactly sure about the details of Archie’s connections to Universal.

“His firm, Duane Morris, has represented and I believe, though I’m not sure, continues to represent [Universal],” said Davis, who also mentioned the “relationship that Archie has had with Universal over the years.”

Davis said he did not know if Archie currently serves on any boards connected to Universal.

In his remarks last Wednesday, Archie said that he sits on a Universal board.

That assertion contradicted his past statements. It was also at odds with statements provided by officials from both Universal and the District, who have maintained that Archie resigned from the boards of both the University Institute Charter School and Universal Community Homes upon his appointment to the SRC in April 2009.

But according to Universal’s most recent nonprofit filings with the Internal Revenue Service, Archie continued to serve as a director of Universal Community Homes until at least June 30, 2010, more than a year after joining the SRC.

Asked to clarify, Universal’s Dawan, who signed off on the documents, said the information in the tax filings reflected errors made by auditors who wrongly duplicated a previous list of board members year after year.

Dawan said that Archie resigned from the Universal Institute Charter School board on September 16, 2008 and that he left the Universal Community Homes board sometime between April 9, 2009 and its next meeting.

“Definitively, Mr. Archie is not a member of any Universal Board,” said Dawan, who added that Universal would amend their 990 filings with the IRS to correct the errors and said he was researching board minutes to provide documentation of Archie’s resignation from the board of Universal Community Homes.

At last Wednesday’s SRC meeting, Archie also said that Universal “is a client of Duane Morris,” the law firm in which he is a partner.

Dawan said that statement was also inaccurate.

“Duane Morris has not performed any school related work … since Mr. Archie’s appointment to the SRC,” he said, adding that Universal retained another law firm for education-related business and has not given Duane Morris new legal work of any kind since Archie’s appointment to the SRC.

Any payments to Duane Morris after September 2009 were the result of closing out a small project that had begun prior to Archie’s appointment, said Dawan.

“Both Mr. Archie and Universal have worked very hard to make sure that we have followed every possible precaution to avoid a conflict of interest,” said Dawan. “[Universal has] a very good reputation of always complying with the rules. We established this reputation by years of hard work and service to the community. At some point, I hope the story can turn in that direction.”

A question of oversight

Under the Ethics Act, the District should have a written memorandum explaining the nature of Archie’s declared conflict.

Davis said that he has no such memo, an oversight for which he took responsibility.

“As counsel, I have not advised [the commissioners] of that requirement,” said Davis. “Until that issue came up in March, I was not aware of that requirement. I’ve got to go back and correct that.”

Still, he said, “The commissioners are very much on top of what their obligations are ethically. … There is no lack of clarity.”

Davis said he has concluded that Archie’s comments last Wednesday did not violate the District’s code of ethics.

“I really believe that what is required in instances like this is disclosure of the nature of the conflict,” he explained.

At the state level, however, disclosure alone does not allow a public official to use “the authority of office” to influence a decision, according to Hittie’s explanation of the state Ethics Act.

“It is possible for someone who has a private interest to step out of their role as a public official and express a viewpoint, but he or she would need to be careful to do so fully as a private citizen,” said Hittie. “When you advocate on an issue and you’re wearing your hat as a public official, that’s using the authority of your office.”

It is unclear if there will be any continued fallout from the events surrounding last Wednesday’s vote.

Hittie would neither confirm nor deny whether any complaints had been filed about Archie’s conduct regarding Universal, and the mayor’s office has confirmed that its fact-finding mission is limited to the events at King High.