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A criminal case over the Mariner East pipeline raises questions about the role of constables in Pennsylvania

Philadelphia Inquirer logo Philadelphia Inquirer 6/30/2020 By Vinny Vella, The Philadelphia Inquirer
a close up of a logo: Construction of the Mariner East pipeline, seen here in 2019, is continuing in Delaware and Chester Counties by Energy Transfer Partners, to the consternation of many residents of the area. © MICHAEL BRYANT/The Philadelphia Inquirer/TNS Construction of the Mariner East pipeline, seen here in 2019, is continuing in Delaware and Chester Counties by Energy Transfer Partners, to the consternation of many residents of the area.

Chester County prosecutors are facing a setback in their criminal case surrounding the embattled Mariner East pipeline, after a local judge last week dismissed the charges against one of the suspects.

Now the prosecution into how Energy Transfer Partners relied on state constables to provide private security for the pipeline has shined an unwitting spotlight on gaps in the way Pennsylvania oversees its constables — elected officials whose only explicit duty is to protect polling places on election days.

After a marathon, five-hour preliminary hearing Thursday, District Judge John Bailey dropped all 54 conspiracy charges against Frank Recknagel, 59, the head of security for Energy Transfer Partners.

Bailey said that while he had reservations about the alleged conduct of Recknagel’s co-defendants, and the constables hired by the company, he had doubts about the charges the Havertown resident faced.

“The law is the law, and if I need to look at Mr. Recknagel and Mr. Recknagel alone,” Bailey said, “I don’t believe the Commonwealth has established” the basis for criminal charges.

Chester County District Attorney Deb Ryan said her office disagrees with Bailey’s decision and is “weighing its options.” She declined further comment, since charges against Recknagel’s co-defendants are pending.

In late 2019, then-District Attorney Thomas P. Hogan said Energy Transfer Partners engaged in an illegal “buy-a-badge scheme,” recruiting state constables to act as private guards at local construction sites while armed and in uniform, and taking steps to obscure payments to them from public scrutiny by funneling them through other contractors working on the project. The constables, in turn, failed to disclose those payments on state financial-disclosure forms, prosecutors said.

Hogan’s indictment named Recknagel and four security contractors hired by the firm: Nikolas McKinnon, 40; Michael Boffo, 60; James Murphy, 62; and Richard Lester, 72. All were charged with bribery, conspiracy, and related offenses.

None of the four other suspects have appeared before Bailey. They are tentatively scheduled to do so in August.

Sunoco Pipeline, a subsidiary of Energy Transfer Partners, is building three adjacent pipelines to transport natural gas liquids such as propane across the state from the Marcellus Shale region through Chester County to a terminal in Marcus Hook. The project has come under almost constant scrutiny since its inception by homeowners living adjacent to it, who say they are fearful of its effects on their health.

In the courtroom Thursday, Recknagel’s attorney, Justin Danilewitz, called the case “an enormous mistake by the district attorney,” one fueled by political pressure over the pipeline project. He said Recknagel was transparent about his intention to hire the constables with both local law enforcement and his own company, and had done so before in other parts of Pennsylvania without being told it was illegal or improper.

Assistant District Attorney Myles Matteson pushed back, saying Recknagel knew it was illegal to hire the constables in that manner, and “had control of the conspiracy and directed others how to continue it.”

“Security is not illegal. We’re not alleging that,” Matteson said. “It’s when you associate your badge and your gun with that security that’s illegal.”

Experts familiar with the regulations governing constables say there is no clear guidance over what’s proper, and bemoan the lack of clarity from the state legislature.

John Pfau, the manager of the bureau of training service for the state Commission on Crime and Delinquency, has helped steer how constables are trained for 25 years. He said state statutes concerning constables are vague and often self-contradictory.

“It’s this schizophrenic set of case law and statutes that in some cases dates back 70, 80 years,” he said Tuesday. “A constable is an independent contractor for the minor judiciary, but the problem is, it’s never been addressed. There’s no clear list of what constables can and can’t do.”

State law gives constables the ability to work private jobs when not performing their duties on election days. Those often include being hired by the courts to serve warrants or transport prisoners.

But some constables routinely advertise their services for private security, often doing so while armed and wearing a uniform, according to Pfau. However, they are not legally considered law enforcement officers.

“They’re presenting to the average person that they have police functions,” Pfau said. “I always say, ‘OK you arrested somebody, what do you do now?' You can’t file a criminal complaint, you eventually have to turn this over to a police department or sheriff.”

Danilewitz, Recknagel’s attorney, said Monday that his chief concern was the criminal case against his client, not the larger question of constables’ roles.

“In terms of constables themselves, I think that everybody could benefit from clarification about their legal status and the scope of their authority,” he said. “But clarification doesn’t come from prosecution. That clarification comes from writing clear statutes.”

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