HomeMy WebLinkAbout1533 DIVECCHIOIn Re: Mark DiVecchio,
Respondent
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Raquel K. Bergen
Nicholas A. Colafella
Mark Volk
08 -012
Order No. 1533
9/22/09
10/6/09
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted
an investigation regarding possible violation(s) of the Public Official and Employee Ethics
Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., by the above -named Respondent. At the
commencement of its investigation, the Investigative Division served upon Respondent
written notice of the specific allegations. Upon completion of its investigation, the
Investigative Division issued and served upon Respondent a Findings Report identified as
an "Investigative Complaint." A Stipulation of Findings and a Consent Agreement waiving
an evidentiary hearing were subsequently submitted by the parties to the Commission for
consideration. The Stipulated Findings are set forth as the Findings in this Order. The
Consent Agreement has been approved.
This adjudication of the State Ethics Commission is issued under the Ethics Act and
will be made available as a public document thirty days after the mailing date noted above.
However, reconsideration may be requested. Any reconsideration request must be
received at this Commission within thirty days of the mailing date and must include a
detailed explanation of the reasons as to why reconsideration should be granted in
conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the
finality of this adjudication but will defer its public release pending action on the request by
the Commission.
The files in this case will remain confidential in accordance with the Ethics Act.
DiVecchio, 08 -012
Page 2
I. ALLEGATIONS:
That Mark DiVecchio, a public official /public employee in his capacity as Erie
County Executive, violated Sections 1103(a), 1104(a), 1104(d), and 1105(b) of the State
Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a), 1104(a), 1104(d), and 1105(b), when
he used the authority of his public position for the private pecuniary benefit by charging
personal travel including lodging and air fare to a county account and subsequently
received reimbursement of the expenses related to non - county business; when he failed to
file a Statement of Financial Interests for the 2006 calendar year by May 1, 2007; when
[he] failed to disclose his financial interests in any legal entity or business for profit by
failing to disclose his interests in DiVecchio Food Products on the Statement of Financial
Interests filed for the 2003 calendar year; when he failed to disclose his office,
directorship, or employment in DiVecchio Food Products on the Statement of Financial
Interests filed for the 2005 calendar year; when he failed to file a Statement of Financial
Interests for the 2007 calendar year by May 1, 2008; and when he subsequently failed to
disclose all sources of income in excess of $1,300.00 on the Statement of Financial
Interests filed for the 2007 calendar year; and when he failed to disclose on a Statement of
Financial Interests filed for the 2007 calendar year the name and address of the source
and amount of payment for transportation, lodging or hospitality in relation to his public
position when expenses paid on his behalf by another entity /individual which exceeded
$650.00 for his attendance at the Spring 2007 International Council of Shopping Centers
Convention were not reported.
II. FINDINGS:
1. Mark A. DiVecchio has served as the elected County Executive for Erie County
since January 2, 2006.
a. DiVecchio previously served as an Erie County Councilman from January
1998 until December 31, 2005.
2. Mark DiVecchio is affiliated with a catering business known as DiVecchio Food
Products, 1537 W. 8 Street, Erie, PA.
a. DiVecchio Food Products has been in business for approximately 30 years.
b. DiVecchio's biography posted on his website, www.markdivecchio.com lists
Mark DiVecchio as the owner of DiVecchio Food Products.
3. Erie County is governed by a Home Rule Charter which provides for a seven
member Council and an Administrative Branch, led by the County Executive.
a. Council meets four times monthly with legislative meetings held on the first
and third Tuesdays of the month and workshop meetings on the second and
fourth Thursdays of the month.
1. Council holds special meetings as needed.
4. DiVecchio is not required to attend any Council meetings as the County Executive.
a. DiVecchio occasionally attends Council meetings upon request.
b. Although DiVecchio is not required to attend Council meetings, a
representative of his office attends all workshop meetings.
5. DiVecchio's powers and duties as County Executive, as noted in Section 5 of Article
111 of the Erie County Home Rule Charter, include but are not limited to the
DiVecchio, 08 -012
Page 3
following:
Supervising, either directly or through subordinate employees, the
administration of all County departments, administrative units, boards,
commissions, authorities, agencies, and offices, except as otherwise
provided by this Charter;
Executing and enforcing the provisions of this Charter and all ordinances
and resolutions of the County Council;
Exercising the power to veto as set forth in this Charter;
Preparing and submitting to the County Council the annual operating budget
and the capital improvement budget of the County.
Having the power to veto or reduce individual items in the budget and
appropriation ordinances.
6. Erie County maintains policies and procedures regarding employee travel related to
County business.
a. Erie County's Travel Policy was most recently revised on December 4, 2007,
and distributed by the Finance Department.
b. The policy in effect prior to revision was dated 2003.
1. Jennifer Fisher, Staff Accountant, authored the 2003 policy.
c. Historically, all elected officials of Erie County, including, but not limited to,
members of County Council, County Executive, Sheriff and Common Pleas
Court Judges have adhered to the County travel policies.
7 The Travel Policy includes procedures regarding the approval process for airfare,
mileage, and meal charges incurred before and during County business travel for
all employees and officials of the County.
8. Erie County's 2003 and 2007 Travel Policies mandate that all air travel is to be
approved by the Finance Department or the Manager of Accounting.
a. All air travel is to be charged to the Finance Director's credit card after said
air travel itineraries have been booked through the approved vendors.
b. Travel arrangements may only be made through the following vendors,
resulting in the corresponding fees:
1. AAA, $25.00
2. Miller Travel Services, $35.00
9. Procedures utilized for arranging air travel per the 2003 Travel Policy are as
follows:
a. Departments will complete an Air Travel Authorization form;
b. The Air Travel Authorization form is then sent to the Director of Finance or
the Manager of Accounting for approval;
DiVecchio, 08 -012
Page 4
c. After the department receives approval, [it is] permitted to contact an
approved vendor to make flight itinerary arrangements.
d. The booked itinerary is then faxed to the Finance Department, where
traveler and destination information is confirmed.
e. The Finance Department will sign the faxed itinerary and maintain said
paperwork on file with the Air Travel Authorization indicating approval.
1. Should the Finance Department receive an itinerary that was booked
without prior approval, the tickets will not be issued from the vendor
without ensuring that the process is completed.
10. Erie County's 2003 Travel Policy specifies employees who have the authority to
approve travel.
a. Those authorized to approve travel are limited to the following Finance
department employees: Jennifer Fisher, Christine Duffin, Sue Ellen
Pasquale, and Tracey Fugagli.
b. DiVecchio is not included among the County officials authorized to approve
air travel.
11. The budget for the Office of the County Executive is created in part by DiVecchio.
a. DiVecchio collaborates with Council to develop the County's annual budget,
including that of the County Executive.
b. The County Executive has the authority to veto decisions made by Council.
12. The budget for the Office of the County Executive includes a line item for funding
for travel related to County business.
13. The County Executive is at times required to travel as a function of his office.
a. Typical travel is limited to the Commonwealth of Pennsylvania.
b. Occasional travel related to conferences and professional development
seminars at times may require the County Executive to travel out of state.
14. In his position as County Executive, DiVecchio is provided with the following by Erie
County:
Automobile;
Parking space at the Erie County Courthouse;
Fuel card, to be utilized only in the County provided automobile;
Cellular telephone;
Credit card, to be utilized only for business and travel related purchases.
15. DiVecchio's County credit card is issued and financed by National City Bank of
Pennsylvania under account no. )000X- )000X -)000X -4720.
16. DiVecchio is affiliated with the Democratic Party and was elected to the Office of the
DiVecchio, 08 -012
Page 5
County Executive as a representative of said party.
a. DiVecchio has consistently been affiliated with the Democratic Party at least
since his election to County Council.
17. The Democratic Party of Pennsylvania has established a statewide network of
elected committee members, known as the Democratic State Committee (DSC).
a. The DSC determines candidates to be endorsed by the party on a statewide
level only.
1. The DSC is not involved in local elections.
18. The DSC typically holds quarterly meetings in the Harrisburg, PA, area.
a. The DSC tracks which members or proxies attend all meetings.
1. All meetings are open to non - committee Democratic Party members
and the press.
2. The attendance of non - committee members is not tracked.
b. DSC representatives are not compensated for their service.
c. Travel related expenses associated with attendance of DSC meetings are
not reimbursed by the committee.
19. DSC meetings generally occur in the following order of events:
a. Friday - representatives arrive;
1. A fundraising dinner or event is occasionally held in the evening;
b. Saturday - official business meetings begin and voting takes place;
1. Workshops take place occasionally after the legislative meeting;
2. Saturday's events typically conclude in the afternoon;
c. Sunday - an informal breakfast may take place;
1. Representatives remaining in the Harrisburg area usually leave after
the Sunday morning breakfast.
20. In 2006 DiVecchio attended meetings of the DSC both as a proxy and visitor.
a. DiVecchio attended DSC meetings in January and September.
b. Expenses related to the travel from Harrisburg for attending the September
2006 DSC meeting have been claimed by DiVecchio as expenses for official
County business.
21. DiVecchio attended a DSC meeting in January 2006 as a proxy for Erie area
representative Katherine M. Grimaldi.
a. The meeting took place from January 27 -28, 2006, and was held at the
Wyndham Harrisburg /Hershey Hotel, in the Harrisburg, PA, area.
Date
Activity
September 8, 2006
State Committee (Jean Theis)
September 9, 2006
State Committee (Jean Theis)
September 10, 2006
Hbg
September 11, 2006
Fly back from Hbg
DiVecchio, 08 -012
Page 6
b. Grimaldi turned her proxy over to DSC representative Ian Murray who
selected DiVecchio to attend.
22. DiVecchio maintains a personal calendar which contains handwritten entries
documenting DiVecchio's travel, meetings and appointments related to his position
as Erie County Executive.
a. The entries are made by both DiVecchio and his secretary.
b. DiVecchio's calendar routinely documents daily appointments and /or
meetings both in Erie and at times when he is scheduled out of town.
23. DiVecchio's personal calendar notes "Harrisburg" through the entire days of
January 27, 2006, and January 28, 2006.
a. January 27, 2006, was a Friday and part of DiVecchio's work week as
County Executive.
24. DiVecchio traveled to the January 2006 DSC meeting with a group of
representatives from the Erie area, and some of their spouses, in one van.
a. Murray and DSC representative, David Rocco, paid for hotel
accommodations for all individuals in the vehicle.
b. All individuals in the van contributed to fuel costs.
c. DiVecchio's travel resulted in no expense to Erie County.
1. DiVecchio incurred no charges on his County issued credit card in
relation to said travel.
2. DiVecchio submitted no charges to Erie County for reimbursement.
25. DiVecchio did not claim and was not reimbursed by Erie County for any expenses
for the January 2006 DSC meeting.
26. The September 2006, DSC meeting was held in the Harrisburg area from
September 8 -9, 2006.
a. The meeting was held at the Radisson Penn Harris Hotel, in the Camp Hill,
PA, area.
b. DiVecchio was not listed as a proxy for said meeting.
27. DiVecchio's personal calendar for the days of September 8 -11, 2006, documents
his daily activities as follows:
a. Jean Theis is an Erie area DSC committee member, but did not attend the
September 2006 meeting.
Date
Destination
FIi • ht No.
De • arture
Arrival
09/08/2006
Erie to Pittsburgh
4389
6:10 a.m.
7:00 a.m.
09/08/2006
Pittsburgh to Harrisburg
4563
8:00 a.m.
9:02 a.m.
09/11/2006
Harrisburg to Pittsburgh
4529
3:00 p.m.
4:10 p.m.
09/11/2006
Pittsburgh to Erie
4586
5:50 p.m.
6:36 p.m.
DiVecchio, 08 -012
Page 7
1. Theis occasionally contacts DiVecchio's secretary in order to place
event reminders on his calendar.
b. DiVecchio's calendar for September 8, 2006, specifically notes DiVecchio's
reservations for the Harrisburg Hilton, arriving September 8, 2006, and
departing September 11, 2006.
c. The only specific appointment scheduled for DiVecchio during the time frame
of September 8 - 11, 2006, is on September 11, 2006, with the Regional
Center for Workforce Excellence in Meadville, PA, at 10:00 a.m., which was
after the DSC meeting.
28. DiVecchio submitted an Air Travel Authorization form to the Erie County Finance
Department on August 16, 2006, for travel to Harrisburg, PA, for the time period of
September 8 -11, 2006.
a. The form was signed by DiVecchio on August 16, 2006, and indicated that
his purpose for travel was, "meetings with other government officials."
1. DiVecchio did not document any scheduled "meetings with other
government officials," or identify specify officials he intended to meet
with.
b. The Air Travel Authorization was signed by Erie County Director of Finance
Stephanie Freeman on August 17, 2006.
1. Freeman was employed by the Erie County Finance Department from
approximately January 2006 to September 15, 2007.
c. DiVecchio's travel dates on the Air Travel Authorization corresponded with
the dates for the September 2006 DSC meeting.
29. DiVecchio's travel was booked under the guise of Erie County related business at
County expense for the purpose of attending a political event, the DSC meeting.
a. DiVecchio traveled to Harrisburg primarily for the purpose of attending the
DSC meeting.
1. No meetings or appointments were noted in DiVecchio's calendar
during his time in Harrisburg, PA, with the exception of the DSC
meeting.
30. DiVecchio's initial flight itinerary booked through U.S. Airways regarding his
September 2006 travel from Erie, PA, to Harrisburg, PA, as well as his return is
depicted in the chart below:
a. The above shown itinerary corresponds with ticket number 037777542303.
31. DiVecchio's air travel was booked through Miller Travel Group in association with
Invoice No. 0266862 on August 18, 2006, at a cost of $438.20.
Date
Destination
FIi • ht No.
De • arture
Arrival
09/08/2006
Erie to Pittsburgh
4389
6:10 a.m.
7:00 a.m.
09/08/2006
Pittsburgh to Harrisburg
4563
8:00 a.m.
9:02 a.m.
09/10/2006
Harrisburg to Pittsburgh
4392
9:40 a.m.
10:50 a.m.
09/10/2006
Pittsburgh to Erie
4586
11:35 a.m.
12:20 a.m.
DiVecchio, 08 -012
Page 8
a. The cost of the roundtrip ticket was $403.20.
1. A $35.00 booking charge was included in the invoice.
b. DiVecchio's flights were charged to the Finance Director's County issued
credit card, as mandated in the Travel Policy.
1. The Finance Director prior to Freeman was Thomas E. Lyons.
2. At the time of DiVecchio's booking, Lyons's name was still assigned
to the Finance Director's County issued credit card, though Freeman
was holding said position.
32. DiVecchio altered his flight plans on September 8, 2006, in order to return to the
Erie area on September 10, 2006.
a. DiVecchio is not authorized to alter flight arrangements per Erie County's
travel policy.
33. DiVecchio's return flight, from Harrisburg, PA, to Erie, PA, was amended on
September 8, 2006, through U.S. Airways to return on September 10, 2006, rather
than September 11, 2006, as indicated below:
a. The above shown itinerary corresponds with ticket number 0372108507079.
b. U.S. Airways records indicate that DiVecchio utilized ticket number
0372108507079 in order to return to Erie on September 10, 2006.
34. DiVecchio's County provided credit card (Number )000X- )000X -)000(-4720) was
charged $100.00 by U.S. Airways on September 8, 2006, to change flight itineraries
of booked travel.
35. DiVecchio was registered to stay at the Harrisburg Hilton from September 8 -11,
2006.
a. DiVecchio's Harrisburg Hilton folio number 320985 indicates the following:
1. Room rate was $139.00 per night;
2. DiVecchio checked in on September 8, 2006, at 12:03 p.m.; and
checked out on September 10, 2006.
b. DiVecchio's County issued credit card (Number )000X- )000X -)000(-4720)
was charged a total of $303.02 for his stay at the Hilton after applicable
taxes.
36. DiVecchio utilized his County issued card on September 9, 2006, as follows:
a.
DiVecchio, 08 -012
Page 9
Date Location Amount Memo
9/9/06 Perkins Restaurant $12.59 -
9/9/06 Tom Sawyer Diner $10.00 Bar
b. Tom Sawyer's Diner is a restaurant /bar also known as Sawyer's Cantina.
37. DiVecchio's October 2006 County credit card statement for account no. )000(-
)000(-)000(-4720 reflected a total of $425.61 in charges related to his September
2006 Harrisburg travel for purposes of attending the [DSC] meeting.
a. The following charges were reflected on DiVecchio's statement to be paid by
October 21, 2006, by the County of Erie.
1. US AIRWAYS ARLINGTON VA $100.00
2. TOM SAWYER DINER HARRISBURG PA $ 10.00
3. PERKINS #2390 LEMOYNE PA $ 12.59
4. HILTON HOTELS HARRISBURG PA $303.02
Total: $425.61
38. Erie County issued check no. 340867 dated April 4, 2007, to "National City" as the
March 2007 payment for charges incurred by DiVecchio on his County credit card
(account no. )000X- )000X -)000(- 4720), in relation to his September 2006
Harrisburg travel.
a. A clerical error on the part of National City initially credited the $425.61 to
DiVecchio's account, on September 22, 2006, though no payment was made
by Erie County.
1. The error was corrected on March 23, 2007, with a payment
adjustment in the amount of $425.61.
b. Erie County checks are printed with computer generated authorizing
signatures.
c. Check no. 340867 is authorized by the signature of Mark DiVecchio in the
"County Executive" designated area.
1. Check no. 340867 is authorized with the second signature of
Stephanie B. Freeman, Director of Finance.
39. DiVecchio's September 8 -11, 2006, travel to Harrisburg was personal in nature and
related to a DSC meeting and not any official Erie County business.
1. DiVecchio's only confirmed meeting took place on Friday, September
8, 2006, and lasted approximately ninety minutes.
2. DiVecchio's travel was booked on August 18, 2006, nearly a month
prior to his travel, but no appointments for meetings in the Harrisburg
area are reflected in any travel or calendars.
3. Charges incurred by Erie County as a result of DiVecchio's travel for
personal purposes [totaled] $863.81.
Descri • tion
Amount
Airfare
',438.20
U.S. Airways flight change
$100.00
Hilton Hotel expense
$303.02
Subsistence /alcohol
$22.59
Total
$863.81
DiVecchio, 08 -012
Page 10
40. DiVecchio realized a private pecuniary benefit of $863.81 as a result of using his
County position to incur personal travel related expenses in association with his
attendance at the September 2006 DSC meeting, which he submitted to be paid by
Erie County:
THE FOLLOWING FINDINGS RELATE TO DIVECCHIO'S PERSONAL TRAVEL TO
ATTEND THE GOVERNOR'S INAUGURATION IN JANUARY 2007, WHICH WAS PAID
FOR BY ERIE COUNTY.
41. DiVecchio attended the Inauguration of Governor Edward Rendell on January 15,
2007.
a. The Inauguration was held in Harrisburg.
b. DiVecchio also attended post Inauguration social events.
42. DiVecchio's expenses in relation to his attendance at the Inauguration were paid by
Erie County.
43. DiVecchio's calendar for the days of January 14 -17, 2007, documents that he
traveled to Harrisburg on Sunday, January 14, 2007, and returned to Erie on
Wednesday, January 17, 2007.
44. Specific entries to DiVecchio's calendar related to his attendance at the 2007
Governor Inauguration included the following:
a. January 14, 2007: Leave for Hbg.
b. January 15, 2007: Courthouse closed, Hbg Hilton corner room, inauguration
for Governor.
c. January 16, 2007: Hbg.
d. January 17, 2007: Back to Erie.
45. DiVecchio contends that his attendance at the 2007 Inauguration of Governor
Edward Rendell was related to his official responsibilities as Erie County Executive.
46. DiVecchio drove his County provided vehicle to Harrisburg for the 2007 Governor
Inauguration.
a. DiVecchio's travel required no oversight or authorization from another Erie
County department because no air fare was booked.
b. DiVecchio utilized his County credit card to make purchases of fuel and
other personal expenses.
1. DiVecchio's County issued fuel card is only valid at Citgo service
stations.
Date
Amount
Location
1/14/07
$34.52
T/A Travel Center
Brookville, PA
1/15/07
$80.00
Scott's Grille
Harrisburg
1/16/07
$28.71
Sheetz
3695 Paxton Street
Harrisburg, PA
1/17/07
$16.28
JoJo's Travel Store
Emlenton, PA
DiVecchio, 08 -012
Page 11
47. DiVecchio was registered at the Harrisburg Hilton from January 14 -17, 2007.
a. DiVecchio's Harrisburg Hilton folio number 342998 indicates the following:
1. Room rate of $219.00 per night, plus taxes and $20.00 daily for valet
parking;
2. DiVecchio had one guest (Susan DiVecchio);
3. DiVecchio checked in on January 14, 2007, at 4:28 p.m.;
4. DiVecchio checked out on January 17, 2007, at 9:21 a.m.
b. DiVecchio utilized his County provided credit card no. )000(-)000(-)000(-
4720 to charge a total of $776.13 for his stay at the Hilton including
applicable taxes and valet parking.
48. DiVecchio utilized his County provided credit card at various locations during his
trip (i.e. restaurants, gas stations, etc.).
49. DiVecchio charged $80.00 at the Scotts Grille, located at 212 Locust Street in
Harrisburg, PA, on January 15, 2007.
a. Scotts Grille is a restaurant in downtown Harrisburg, PA.
b. Scotts Grille receipt number 739737 indicates that two guests were in
DiVecchio's party.
1. DiVecchio's spouse, Susan DiVecchio, accompanied him to
Harrisburg.
c. The following charges, totaling $80.00, appeared on receipt number 739737:
Two Sodas $2.82
One Caesar Salad $0.00
Unknown Item: 3381 $33.00
Kansas City Strip $28.00
Sales Tax $3.83
Gratuity $12.35
DiVecchio, 08 -012
Page 12
d. Receipts showing "unknown item" charges indicate one or more [of] the
following: a chef special; a market price item; a bottle of wine; or other
alcohol charges which the customer requests to be charged in a misleading
manner.
50. DiVecchio's February 2007 County credit card statement for account no. )000(-
)000(-)000(-4720 confirmed a total of $935.64 in charges related to his attendance
at the 2007 Inauguration of Governor Edward Rendell.
a. The $935.64 charges reflected on DiVecchio's statement were detailed as
follows:
1. TA #3 BROOKVILLE PA $34.52
2. SCOTTSGRILL HARRISBURG PA $80.00
3. SHEETZ HARRISBURG PA $28.71
4. JO JO'S TRAVEL STORE EMLENTON PA $16.28
5. HILTON HOTELS HARRISBURG PA $776.13
Total: $935.64
51. Erie County issued check no. 339682 dated February 26, 2007, to "National City"
as the February payment for charges incurred by DiVecchio on his County credit
card (account no. )000X- )000X -)000(- 4720), in relation to his Harrisburg travel for
the Inauguration.
a. Erie County checks are printed with computer generated authorizing
signatures.
b. Check no. 339682 is authorized by the signature of Mark DiVecchio in the
"County Executive" designated area.
c. Freeman's signature is present as the second authorizing signature of Check
no. 339682, in the "Director of Finance" designated area.
52. DiVecchio's travel to Harrisburg was done at the expense of Erie County for the
purpose of attending a personal political event, the Governor's Inauguration.
a. DiVecchio traveled to Harrisburg primarily for the purpose of attending the
Governor's Inauguration and related Inauguration functions.
1. No meetings or appointments were scheduled for DiVecchio during
his time in Harrisburg, PA, with the exception of the Inauguration.
b. DiVecchio's travel was personal /political in nature and not related to any
official Erie County business.
53. DiVecchio utilized his County provided vehicle to travel to the Inauguration.
a. In 2007 [DiVecchio] was provided with [a] 2006 Buick Rainier at a monthly
rental fee to the County of $597.95.
54. Mapquest mileage confirms the mileage from Erie to Harrisburg round trip as 620
miles (310 miles each way).
Descri • tion
Amount
Subsistence
', 130.80
Hilton Hotel expense
$ 776.13
Fuel
$ 28.71
Mileage
$ 300.70
Total
$1,236.34
DiVecchio, 08 -012
Page 13
a. The IRS reimbursement rate for mileage in 2007 was $0.485 per mile.
b. Based on the 2007 IRS reimbursement rate and the miles traveled by
DiVecchio in the County vehicle the cost of travel was $300.70 (620 miles x
.485/mi).
55. DiVecchio realized [a] private pecuniary benefit of $1,236.74 [sic] as a result of Erie
County paying his and his spouse's travel related expenses in association with his
attendance at the Governor's Inauguration, as shown below:
a. Subsistence expenses, paid for by Erie County, represent expenses
accumulated by both DiVecchio and his spouse.
56. The Investigative Division received correspondence dated July 14, 2008, and July
17, 2008, from DiVecchio by way of his Attorney, Charbel G. Latouf in response to a
subpoena for information relating to DiVecchio's travel.
a. The letters contained explanations for DiVecchio's travel to Harrisburg in
September 2006 for the DSC meeting and January 2007 for the
inauguration.
57. Charbel G. Latouf's July 14, 2008, letter outlined DiVecchio's explanations as to the
purpose of travel to Harrisburg in 2006 and 2007.
a. On September 8, 2006, DiVecchio claimed he met with Yasmin Dada - Jones,
then Policy Director for the Pennsylvania Department of Health for "private
discussions about the Erie County Department of Health," and Tara Heilman,
then administrative assistant to then State Representative Linda Bebko-
Jones, to talk about County issues."
1. Dada -Jones confirmed meeting with DiVecchio for approximately
ninety minutes in "August or September 2006" in her Harrisburg office
to discuss DiVecchio's consideration of closing the Erie County
Department of Health.
aa. Dada -Jones was required to oversee the infrastructure of the
Commonwealth's sixteen Health Departments and had a
vested interest in keeping Erie's Department open.
bb. DiVecchio scheduled the meeting in Harrisburg, PA, despite
Dada -Jones having volunteered to travel to Erie to meet with
DiVecchio.
cc. There was no specific need for Dada -Jones and DiVecchio to
meet in person, as they regularly communicated by phone or
DiVecchio, 08 -012
Page 14
email.
2. Heilman had no meeting with DiVecchio on September 8, 2006.
aa. Heilman has had no meetings with DiVecchio during her
twenty three years of service with the Pennsylvania House of
Representatives.
b. DiVecchio provided no written explanation regarding his activities on
September 9, 2006, or September 10, 2006.
1. The Pennsylvania Democratic State Committee held meetings in the
Harrisburg area on September 9 -10, 2006.
c. DiVecchio asserts that he met with then Lieutenant Governor Catherine
Baker -Knoll on September 11, 2006, about "events happening in the State,
as well as events happening in Erie County," and with Lance Simmons,
Special Assistant to the Governor for Intergovernmental Affairs, "about some
projects in Erie County."
1. Simmens has no record of said meeting.
2. DiVecchio's calendar notes that he attended a fundraiser for "Lt.
Gov." from 5:00 to 7:00 on September 12, 2006.
3. DiVecchio returned to Erie on September 10, 2006.
d. DiVecchio claimed that he remained in Harrisburg through September 11,
2006, in order to save the taxpayers money, as an earlier flight on
September 10, 2006, would "cost substantially more."
1. U.S. Airways records confirm that DiVecchio actually returned to the
Erie area on September 10, 2006, and was not in the Harrisburg area
on September 11, 2006, as he claims.
2. DiVecchio's flight alteration, made to return on September 10, 2006,
cost the taxpayers an additional $100.00.
58. DiVecchio's explanations for the trip to Harrisburg, PA, in January 2007 are further
documented in the July 14, 2008, correspondence:
a. DiVecchio claimed to have driven to Harrisburg with his spouse to attend the
Inauguration of Governor Edward Rendell and also to meet with State
Representatives John Hornaman, Florindo Fabrizio, and Pat Harkins.
1. Hornaman had no business meetings with DiVecchio during the time
period of January 14 through January 17, 2007.
aa. Hornaman did not travel to Harrisburg to meet with DiVecchio;
rather they were both attending events related to the
Governor's Inauguration and may have had some conversation
socially.
bb. Hornaman is an Erie area Representative; meetings with
DiVecchio occur the great majority of the time in Erie.
cc. DiVecchio has never met Hornaman in his Harrisburg Office.
DiVecchio, 08 -012
Page 15
2. Fabrizio "ran into" DiVecchio in Harrisburg during the timeframe in or
around the Inauguration.
aa. Fabrizio did not travel to Harrisburg to meet with DiVecchio;
rather they were both attending events related to the
Governor's Inauguration and may have met out of convenience
while in Harrisburg.
bb. Fabrizio had no scheduled meetings with DiVecchio.
3. Harkins had no business meetings with DiVecchio during the time in
question.
aa. Harkins attended House of Representatives orientation after
the Inauguration and held no business meetings at this time.
bb. DiVecchio has never met with Harkins in Harkins's Harrisburg
office.
b. DiVecchio admitted that Erie County paid the expenses totaling $936.00 for
his trip to the Inauguration:
- Food: $130.00; Hotel: $776.00; and Fuel: $30.00.
59. The correspondence dated July 17, 2008, from Latouf further outlines DiVecchio's
explanations of business conducted during trips to Harrisburg, PA, including in
January 2006, September 2006 and January 2007:
a. On Saturday, September 9, 2006, DiVecchio claimed he may have gone to
State Committee, but he doesn't remember specifically; however his name is
not listed on the attendance sheet."
1. DiVecchio had no business meetings scheduled in his planner for
September 9, 2006.
2. The DSC only records attendance of voting representatives and
proxies at their meeting; other individuals present are not
documented.
b. DiVecchio claimed that on Monday, September 11, 2006, Lieutenant
Governor Catherine Baker Knoll was in a meeting when he attempted to "call
on her "; however the meeting ended prior to DiVecchio leaving and he was
shown in.
1. DiVecchio flew to Erie, PA, on September 10, 2006, and was no
longer in Harrisburg on September 11, 2006.
c. DiVecchio claimed that on Monday, September 11, 2006, he met with Lance
Simmens, Special Assistant to the Governor for Intergovernmental Affairs, in
Simmens's Harrisburg office.
1. DiVecchio flew to Erie, PA on September 10, 2006, and was no
longer in Harrisburg on September 11, 2006.
d. DiVecchio claimed that he had "discussions" with State Representatives
John Hornaman, Florindo Fabrizio, and Pat Harkins while in Harrisburg for
Membership
Status
Advanced
Registration
On Site
Registration
ICSC Member
$345.00
$495.00
Non Member
$740.00
$940.00
DiVecchio, 08 -012
Page 16
the Governor's Inauguration.
1. DiVecchio stayed in Harrisburg from Sunday, January 14, 2007, to
Wednesday, January 17, 2007.
2. No meetings were scheduled with Hornaman, Fabrizio, or Harkins.
THE FOLLOWING FINDINGS RELATE TO DIVECCHIO'S TRAVEL TO ATTEND THE
SPRING 2007 INTERNATIONAL COUNCIL OF SHOPPING CENTERS CONVENTION IN
LAS VEGAS, NEVADA.
60. In May 2007, the International Council of Shopping Centers (ICSC) held [its] annual
spring convention in Las Vegas, Nevada.
a. The ICSC is a global trade association in the shopping center industry
whose worldwide membership includes shopping center owners, developers,
managers, marketing specialists, investors, lenders, retailers and other
professionals as well as academics and public officials.
61. Admission costs related to the 2007 ICSC convention [were] based on membership
status and the option of advanced or on site registration as shown in the chart
below:
62. John M. Puline is the President and Owner of Puline & Sons, Incorporated, an
excavation business located in Erie County, PA.
a. Puline's three children are shareholders in Puline & Sons, Incorporated, but
are not employed by the company on a full time basis.
b. Puline & Sons, Incorporated contracts the demolition and excavation of
shopping center developments, among other excavating projects.
63. Puline recently opened and is continually developing resort fishing and camping at
a location on Lake Erie's shore, within Erie County, called Uncle John's
Campground.
a. Puline owns other additional properties in Erie County for future
development purposes.
64. Michael Puline (hereafter M. Puline) is Puline's son and the Vice - President of
Southeast Leasing for DLC Corporation at [its] Atlanta, Georgia, regional branch.
a. DLC Corporation based out of Tarrytown, New York, has regional branches
in Atlanta, Georgia; Chicago, Illinois; and Baltimore, Maryland.
1. DLC Corporation owns, operates and manages shopping centers and
retail development across the United States.
65. DLC Corporation is a member of the ICSC and traditionally purchases exhibit space
at the annual spring Las Vegas Convention.
a. The ICSC provides admittance badges to exhibitors in order to staff their
DiVecchio, 08 -012
Page 17
booths at no additional admission cost.
1. One pass is provided per 100 square feet of exhibit space purchased.
2. Passes provided by ICSC are strictly for exhibit employees who are
manning booths.
3. Each pass must have the photograph of its designator displayed.
b. In 2007, DLC purchased 4,000 square feet of exhibit space and was
provided with 40 staff admittance badges as part of [its] exhibit package.
66. As the Vice - President of Southeast Leasing for DLC Management, M. Puline was
scheduled to attend the May 2007 ICSC Convention in Las Vegas, NV.
a. Upon learning that M. Puline would be attending the ICSC Convention and
that DLC Management would be in possession of several admission passes,
Puline requested that M. Puline provide him and a guest admission passes
to said event.
1. Initially, Puline planned to travel to Las Vegas and attend the
Convention with his girlfriend.
67. Prior to the May 2007 conference DiVecchio learned that Puline intended to travel
to Las Vegas to attend the ICSC Conference.
a. Puline did not inform DiVecchio of his intent to travel to Las Vegas.
b. Puline and DiVecchio do not have a social relationship.
c. Puline and DiVecchio have interacted on a limited number of occasions.
68. DiVecchio approached John Puline and solicited Puline to accompany Puline to Las
Vegas and the ICSC Conference.
a. DiVecchio indicated to Puline that he had family in the Las Vegas area and
"would like to go" with him.
b. Puline informed DiVecchio that he would purchase a flight and hotel
package for both of them and obtain admission passes to the ICSC
Conference.
69. Puline paid for the May 2007 Las Vegas, NV, travel for himself and DiVecchio
totaling $1,293.42.
a. The travel was booked through Orbitz Worldwide, Incorporated by way of
www.orbitz.com.
1. Orbitz invoice no. I7GQPQ indicates that Puline & Sons, Incorporated
MasterCard xxxx- xxxx -xxxx -1055 was charged a total of $1,293.42 on
April 22, 2007.
2. Invoice no. I7GQPQ notes that separate charges will appear for hotel
and airfare purchases.
70. [The] Puline & Sons, Incorporated, Bank of America Platinum Plus Business Card
statement dated May 19, 2007, shows travel charges totaling $1,294.42.
Date
Destination
Flight
De • arture
Arrival
No.
05/20/2007
Erie, PA to Pittsburgh, PA
4586
7:00 p.m.
7:49 p.m.
05/20/2007
Pittsburgh, PA to Las Vegas, NV
711
8:35 p.m.
10:14 p.m.
05/23/2007
Las Vegas, NV to Phoenix, AZ
3
6:54 a.m.
8:00 a.m.
05/23/2007
Phoenix, AZ to Pittsburgh, PA
1574
9:06 a.m.
3:53 p.m.
05/23/2007
Pittsburgh, PA to Erie, PA
4586
5:50 p.m.
6:38 p.m.
DiVecchio, 08 -012
Page 18
a. A charge of $207.42 from www.orbitz.com appears with a sale date of April
25, 2007.
1. The charge of $207.42 represents a three night stay at the Circus
Circus Las Vegas Hotel and Casino for May 20 -23, 2007, for both
Puline and DiVecchio.
b. A U.S. Airway charge for $543.00 designated for Mark DiVecchio appears
with a sale date of April 25, 2007.
c. A U.S. Airway charge for $543.00 designated for John Puline appears with a
sale date of April 25, 2007.
71. DiVecchio's flight itinerary through U.S. Airways confirms travel from Erie, PA, to
Las Vegas, NV, and return between May 20, 2007, and May 23, 2007, as follows:
a. The above shown itinerary corresponds with ticket numbers
0377671454054056 and 0377671454054057.
1. Ticket numbers 0377671454054056 and 0377671454054057 were
assigned to DiVecchio.
72. Puline provided one DLC admission badge to DiVecchio to attend the spring 2007
ICSC convention in Las Vegas, NV.
a. DiVecchio's photo appears on the admission badge.
1. The admission badge indicates that DiVecchio is a staff member of
DLC Management, Incorporated.
2. DiVecchio is not and has never been a staff member of DLC
Management, Incorporated.
b. The admission badge provided to DiVecchio has a minimum value of
$740.00.
1. DiVecchio did not reimburse Puline for the cost of the admission
badge provided to him.
73. DiVecchio was provided with the transportation, lodging and hospitality related to
the spring 2007 ICSC convention in Las Vegas, NV, in his capacity as the Executive
of Erie County.
a. While attending the convention, DiVecchio met with development
representatives from both DLC Management and other vendors.
Descri • tion
Amount
U.S. Airways flight
',543.00
Circus Circus Las Vegas Hotel stay
$207.42
ICSC Convention Admission
$740.00
Total
$1,490.42
DiVecchio, 08 -012
Page 19
1 DiVecchio discussed the development of the West Erie Plaza.
aa. DiVecchio was interested in bringing discount stores to the
West Erie Plaza.
b. DiVecchio routinely introduced himself as the Erie County Executive when
meeting with development representatives and vendors.
c. DiVecchio attended the New York Developer's Dinner Party.
1 The New York Developer's Dinner Party was an invitation only private
party hosted by DLC.
d. A June 2, 2008, Erie Times — News article related to DiVecchio's trip
indicates that "administration officials" stated that the purpose of DiVecchio's
travel to the spring 2007 ICSC convention was to attract a large business to
Erie County.
745. DiVecchio never offered or provided payment to Puline for expenses related to
transportation, lodging or hospitality received for the spring 2007 Las Vegas, NV,
trip.
a. All expenses were paid for in full by Puline & Son's, Inc. Platinum Plus Bank
of America Business MasterCard.
75. Transportation, lodging or hospitality totaling $1,490.42 [was paid] for DiVecchio by
Puline for the trip to the spring 2007 ICSC convention in Las Vegas, NV.
76. DiVecchio filed a Statement of Financial Interests for the 2007 calendar year as
Erie County Executive on June 4, 2008.
a. The form was required to have been filed by May 1, 2008.
b. DiVecchio did not disclose on the filing for the 2007 calendar year the
$1,490.42 in transportation, lodging, and hospitality provided by John
Puline /Puline and Sons.
THE FOLLOWING FINDINGS RELATE TO DIVECCHIO'S FAILURE TO DISCLOSE HIS
FINANCIAL INTERESTS IN ANY LEGAL ENTITY OR BUSINESS FOR PROFIT BY
FAILING TO DISCLOSE HIS INTERESTS IN DIVECCHIO FOOD PRODUCTS ON THE
STATEMENT OF FINANCIAL INTERESTS FILED FOR THE 2003 CALENDAR YEAR;
WHEN HE FAILED TO DISCLOSE HIS OFFICE, DIRECTORSHIP, OR EMPLOYMENT IN
DIVECCHIO FOOD PRODUCTS ON THE STATEMENT OF FINANCIAL INTERESTS
FILED FOR THE 2005 CALENDAR YEAR; WHEN HE FAILED TO DISCLOSE ALL
SOURCES OF INCOME IN EXCESS OF $1,300.00 ON THE STATEMENT OF FINANCIAL
INTERESTS FOR THE 2007 CALENDAR YEAR; AND WHEN HE FAILED TO DISCLOSE
ON A STATEMENT OF FINANCIAL INTERESTS FILED FOR THE 2007 CALENDAR
YEAR THE NAME AND ADDRESS OF THE SOURCE AND AMOUNT OF PAYMENT FOR
TRANSPORTATION, LODGING, OR HOSPITALITY IN RELATION TO HIS PUBLIC
POSITION WHEN EXPENSES PAID ON HIS BEHALF BY ANOTHER
ENTITY /INDIVIDUAL WHICH EXCEEDED $650.00 FOR HIS ATTENDANCE AT THE
DiVecchio, 08 -012
Page 20
SPRING 2007 INTERNATIONAL COUNSEL OF SHOPPING CENTERS CONVENTION
WERE NOT REPORTED.
77. Statement of Financial Interests filing requirements for public officials and public
employees are mandated by Section 1104 of the State Ethics Act.
a. DiVecchio was required to file Statements of Financial Interests by May 1St
annually in his position as the Erie County Executive.
b. DiVecchio was required to file Statements of Financial Interests by May 1St
annually in his position as an Erie County Councilman.
78. Statements of Financial Interests for Erie County public officials are distributed by
County Clerk Douglas R. Smith.
a. Completed forms are returned to Smith and maintained in his office.
b. Instructions for the completion of Statements of Financial Interests are
included within the document packet distributed.
79. A Statement of Financial Interests compliance review for Erie County was
conducted by the Investigative Division on March 28, 2008, and confirmed the
following Statements of Financial Interests on file for DiVecchio for calendar years
2003 to 2007:
a. Calendar Year Date Filed
2003 04/30/04
2004 04/28/05
2005 04/28/06
b. No Statement of Financial Interests for the 2006 calendar year was on file
with Erie County.
1. The form was required to be filed by May 1, 2007.
80. The Statements of Financial Interests filed by DiVecchio for the 2003, 2004, and
2005 calendar years disclosed the following:
a. 2003
Dated: 4/30/04
Public Position: County Councilman
Occupation /Profession: Food Manufacturer
Creditors: Jim Sertz, Citi Platinum
Direct /Indirect Sources of Income: DiVecchio Food Products, Erie County
Gifts: Block marked None
Transportation, Lodging, Hospitality: Block marked None
Office, Directorship or Employment in Any Business: DiVecchio Food
Products, Owner /Operator
Financial Interest in any legal entity in business for profit: Block marked
None
b. 2004
Date Filed: 4/28/05
Public Position: County Council
Occupation /Profession: Food Products, Business Owner
Creditors: Erie City Employee Credit Union
Direct /Indirect Sources of Income: DiVecchio's Food Products, Erie County
DiVecchio, 08 -012
Page 21
Office, Directorship or Employment in any Business: DiVecchio's Food
Products, Owner
Financial Interest in any legal entity in business for Profit: DiVecchio Food
Products, 50% Interest held
All other items: Block marked None
c. 2005
Date Filed: 4/28/09 [sic]
Public Position: County Executive
Occupation /Profession: County Executive
Creditors: FNB and PNC
Direct /Indirect Sources of Income: Erie County
Gifts: None
Transportation, Lodging, and Hospitality: None
Office, Directorship or Employment in any business: Block marked None
Financial Interest in any legal entity in business for profit: DiVecchio Food
Products, co -owner
81. DiVecchio did not disclose his financial interest in DiVecchio's Food Products, a
legal entity engaged in business for profit, on his calendar year 2003 Statement of
Financial Interests.
a. On the Statement of Financial Interests filed for 2003, DiVecchio did report
he was the owner /operator of DiVecchio Food Products.
82. DiVecchio did not disclose DiVecchio Food Products as a direct or indirect source
of income on his Statement of Financial Interests filed for calendar year 2005.
a. DiVecchio Food Products' bank accounts confirm that DiVecchio's income
exceeded $1,300.00 in 2005.
b. DiVecchio did not disclose his office and /or directorship in DiVecchio Food
Products on the Statement of Financial Interests filed for the 2005 calendar
year.
83. DiVecchio did not file a Statement of Financial Interests with Erie County for the
2006 calendar year by May 1, 2007.
a. At the time of the compliance review on March 28, 2008, no Statement of
Financial Interests for [the] 2006 calendar year was on file for DiVecchio.
84. Section 1104 (d) of the Public Official and Employee Ethics Act provides as follows:
Section 1104. Statement of financial interests required to
be filed
(d) Failure to file required statement. - -No public
official shall be allowed to take the oath of office or enter or
continue upon his duties, nor shall he receive compensation
from public funds, unless he has filed a statement of financial
interests as required by this chapter.
65 Pa.C.S. §1104(d).
85. In 2006 DiVecchio was paid $76,015.94 by Erie County during the time period when
he failed to file a Statement of Financial Interests for the 2006 calendar year.
DiVecchio, 08 -012
Page 22
86. DiVecchio filed a Statement of Financial Interests for the 2006 calendar year with
Erie County on or about June 4, 2008.
a. A Notice of Investigation dated May 13, 2008, and received by DiVecchio on
May 15, 2008, informed DiVecchio of his failure to file a Statement of
Financial Interests for the 2006 calendar year.
b. DiVecchio did not file the Statement of Financial Interests until after
receiving the Notice letter of May 13, 2008.
c. DiVecchio forwarded the form to the State Ethics Commission on or about
June 10, 2008.
87. The Statement of Financial Interests filed by DiVecchio for the 2006 calendar year
contained the following:
Date Filed: 6/4/08
Public Position: County Executive
Occupation, Profession: Executive
Creditors: ECE Federal Credit Union, FNB
Direct /Indirect Sources of Income: Erie County, DiVecchio Food Products
Gifts: Block marked None
Transportation, Lodging, Hospitality: Block marked None
Office, Directorship or Employment in any Business:
Pleasant Ridge Manor — President of Board
DiVecchio Food Products — Co -Owner
Erie County — Executive
Financial Interest in any legal entity in Business for Profit: DiVecchio Food
Products, 50% interest
88. DiVecchio filed a Statement of Financial Interests with Erie County for the 2007
calendar year on or about June 4, 2008, which disclosed identical information in all
items as the Statement of Financial Interests filed for the 2007 calendar year.
a. Item no. 12 of the 2007 calendar [year] filing relating to Transportation,
Lodging, Hospitality was marked "None."
89. DiVecchio did not disclose transportation and lodging or hospitality received
totaling in excess of $650.00 on his calendar year 2007 Statement of Financial
Interests.
a. DiVecchio reported that he received no transportation and lodging or
hospitality during the calendar year 2007.
b. DiVecchio was provided with transportation and lodging by local Erie
developer John Puline in May 2007.
1. DiVecchio accompanied Puline to a Las Vegas, Nevada, Convention
of the International Council of Shopping Centers.
2. Puline provided approximately $543.00 in transportation and $207.42
in lodging.
c. DiVecchio received an admission badge from Puline for the International
Council of Shopping Centers Convention in Las Vegas, Nevada, in May
2007 from DLC Management valued at $740.00.
Event
Amount
September 2006 DSC / Harrisburg Travel
$ 863.81
January 2007 Governor's Inauguration / Harrisburg Travel
$1,236.34
Total: $2,100.15
DiVecchio, 08 -012
Page 23
65 Pa.C.S. § 1103(a).
1 DiVecchio's badge indicated that he was a staff member of DLC
Management.
2. DiVecchio is not and has never been a staff member of DLC
Management.
90. Despite the allegation that DiVecchio failed to disclose all sources of income in
excess of $1,300.00 on the Statement of Financial Interests filed for the 2007
calendar year, the Investigative Division has been unable to obtain sufficient facts
necessary to meet its burden of proof.
91. DiVecchio, in his capacity as Erie County Executive, used the authority of his public
position for [his] private pecuniary benefit by incurring charges of a personal nature
in relation to his personal travel to the September 2006 DSC meeting and January
2007 Governor's inauguration and related events which were paid for by County
funds resulting in a total financial gain of $2,100.15, as shown below:
III. DISCUSSION:
As the elected County Executive for Erie County ( "County ") since January 2, 2006,
and a County Councilman from January 1998 until December 31, 2005, Respondent Mark
DiVecchio, hereinafter also referred to as "Respondent," "Respondent DiVecchio," and
"DiVecchio" has been a public official /public employee subject to the provisions of the
Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq.
The allegations are that Respondent DiVecchio violated Sections 1103(a), 1104(a),
1104(d), and 1105(b) of the Ethics Act: (1) when he charged personal travel including
lodging and air fare to a County account and subsequently received reimbursement of the
expenses related to non - County business; (2) when he failed to file a Statement of
Financial Interests ( "SFI ") for the 2006 calendar year by May 1, 2007; (3) when he failed to
disclose his financial interests in a legal entity or business for profit by failing to disclose
his interests in DiVecchio Food Products on the SFI filed for the 2003 calendar year; (4)
when he failed to disclose his office, directorship, or employment in DiVecchio Food
Products on the SFI filed for the 2005 calendar year; (5) when he failed to file an SFI for
the 2007 calendar year by May 1, 2008; (6) when he subsequently failed to disclose all
sources of income in excess of $1,300.00 on the SFI filed for the 2007 calendar year; and
(7) when he failed to disclose on an SFI filed for the 2007 calendar year the name and
address of the source and amount of payment for transportation, lodging or hospitality in
relation to his public position when expenses paid on his behalf by another entity /individual
which exceeded $650.00 for his attendance at the Spring 2007 International Council of
Shopping Centers Convention were not reported.
Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
DiVecchio, 08 -012
Page 24
The term "conflict of interest" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
family is associated. The term does not include an action
having a de minimis economic impact or which affects to the
same degree a class consisting of the general public or a
subclass consisting of an industry, occupation or other group
which includes the public official or public employee, a
member of his immediate family or a business with which he or
a member of his immediate family is associated.
65 Pa.C.S. § 1102.
Section 1103(a) of the Ethics Act prohibits a public official /public employee from
using the authority of public office /employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public official /public
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
Section 1104(a) of the Ethics Act provides that each public official /public employee
must file an SFI for the preceding calendar year, each year that he holds the position and
the year after he leaves it.
Section 1104(d) of the Ethics Act provides that no public official shall be allowed to
take the oath of office, enter or continue upon his duties, or receive compensation from
public funds unless he has filed an SFI as required by the Ethics Act.
Section 1105(b) of the Ethics Act and its subsections detail the financial disclosure
that a person required to file the SFI form must provide.
Subject to certain statutory exceptions not applicable to this matter, Section
1105(b)(5) of the Ethics Act requires the filer to disclose on the SFI the name and address
of any direct or indirect source of income totaling in the aggregate $1,300 or more.
Subject to certain statutory exceptions not applicable to this matter, Section
1105(b)(7) of the Ethics Act requires the filer to disclose on the SFI the name and address
of the source and the amount of any payment for or reimbursement of actual expenses for
transportation and lodging or hospitality received in connection with public office or
employment where such actual expenses exceed $650 in an aggregate amount per year.
Section 1105(b)(8) of the Ethics Act requires the filer to disclose on the SFI any
office, directorship or employment in any business entity.
Section 1105(b)(9) of the Ethics Act requires the filer to disclose on the SFI any
financial interest in any legal entity engaged in business for profit. The term "financial
interest" is defined in the Ethics Act as "[a]ny financial interest in a legal entity engaged in
business for profit which comprises more than 5% of the equity of the business or more
than 5% of the assets of the economic interest in indebtedness." 65 Pa.C.S. § 1102.
DiVecchio, 08 -012
Page 25
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are set forth above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
Background:
Respondent has served as the elected County Executive since January 2, 2006.
Respondent previously served as a County Councilman from January 1998 until December
31, 2005.
In a private capacity, Respondent is affiliated with a catering business known as
"DiVecchio Food Products." DiVecchio Food Products has been in business for
approximately 30 years. Respondent's biography posted on his website lists Respondent
as the owner of DiVecchio Food Products. Some of Respondent's SFIs filed with the
County list Respondent's ownership interest in the business as 50 %.
The County is governed by a Home Rule Charter that provides for a seven Member
Council and an Administrative Branch led by the County Executive.
The County Executive is at times required to travel as a function of his office. Since
at least 2003, the County's travel policies have required all air travel to be approved by the
Finance Department or the Manager of Accounting. All air travel is to be charged to the
Finance Director's credit card after air travel itineraries have been booked through certain
approved vendors.
travel.
Respondent is not included among the County officials authorized to approve air
As County Executive, Respondent is provided by the County with an automobile, a
fuel card to be utilized only for the County provided automobile, and a credit card to be
utilized only for business and travel related purchases.
The September 2006 Democratic State Committee Meeting:
In September 2006 Respondent attended a meeting of the Democratic State
Committee ( "DSC ") in the Harrisburg, Pennsylvania, area. The meeting was held from
September 8 -9, 2006. The meeting was for political purposes and was unrelated to
County business. The DSC does not pay compensation or travel expenses for those
attending such meetings. Respondent claimed travel expenses for attending the meeting
as expenses for official County business.
Respondent submitted an Air Travel Authorization form to the County Finance
Department on August 16, 2006, for travel to Harrisburg, Pennsylvania, for the time period
of September 8 -11, 2006. The form was signed by Respondent on August 16, 2006, and
indicated that his purpose for travel was, "meetings with other government officials." The
Air Travel Authorization was signed by County Director of Finance Stephanie Freeman on
August 17, 2006.
Respondent's initial flight itinerary was for departure from Erie on September 8,
2006, and return to Erie on September 11, 2006. The cost of the roundtrip ticket for the
flight plus a $35.00 booking charge was $438.20, which was charged to the Finance
Director's County credit card.
On September 8, 2006, Respondent changed his flight plans in order to return to
the Erie area on September 10, 2006. Per the County's travel policy, Respondent is not
authorized to alter flight arrangements. The change to the flight plan resulted in a $100.00
fee that was charged to Respondent's County credit card.
DiVecchio, 08 -012
Page 26
Respondent incurred hotel expenses totaling $303.02 for his stay at the Harrisburg
Hilton from September 8 -10, 2006. The hotel expenses were charged to Respondent's
County credit card.
Respondent's October 2006 County credit card statement reflected a total of
$425.61 for charges related to his September 2006 travel to Harrisburg to attend the DSC
meeting. The charges consisted of the $100.00 flight change fee, the $303.02 Hilton Hotel
charge, and charges in the amounts of $10.00 and $12.59 for subsistence /alcohol.
The aforesaid credit card charges were paid by the County by check number
340867. County checks are printed with computer generated authorizing signatures.
Check number 340867 was authorized by the signatures of Respondent as County
Executive and Stephanie B. Freeman as Director of Finance.
The parties have stipulated that Respondent's September 8 -10, 2006, travel to
Harrisburg, Pennsylvania, was booked under the guise of County related business. The
travel was personal in nature and was not related to any official County business. Charges
incurred by the County as a result of Respondent's aforesaid travel for personal purposes
totaled $863.81.
In correspondence submitted in response to a Commission subpoena, Respondent
claimed that on September 8, 2006, and September 11, 2006, he met with certain State
officials /employees. One of these individuals has never had a meeting with Respondent
during her 23 years of service with the Pennsylvania House of Representatives. Another
of these individuals confirmed meeting with Respondent for approximately ninety minutes
in August or September 2006. However, this individual had offered to meet with
Respondent in Erie, and in any event, there was no specific need for a meeting in person
as this individual regularly communicated with Respondent by phone or email. As for the
other purported meetings on September 11, 2006, Respondent had returned to Erie on
September 10, 2006, and was not in the Harrisburg area on September 11, 2006, as he
claimed.
The parties have stipulated that Respondent realized a private pecuniary benefit in
the amount of $863.81 as a result of using his County position to incur personal travel
related expenses in association with his attendance at the September 2006 DSC meeting,
which he submitted to be paid by the County, calculated as the sum of the following: (1)
airfare, $438.20; (2) flight change fee, $100.00; (3) hotel expenses, $303.02; and (4)
subsistence /alcohol, $22.59.
The January 2007 Governor's Inauguration:
In January 2007 Respondent traveled to Harrisburg, Pennsylvania, to attend the
Inauguration of Governor Edward Rendell. The parties have stipulated that the trip was
personal /political in nature and was not related to any official County business. Fact
Finding 52 b. No meetings or appointments were scheduled for Respondent during his
time in Harrisburg to attend the Inauguration. Yet Respondent's expenses for attending
the Inauguration were paid by the County.
Expenses for this trip were incurred from Sunday, January 14, 2007, through
Wednesday, January 17, 2007.
Respondent drove his County provided vehicle to and from Harrisburg for the
Inauguration. The parties have stipulated that the cost to the County of Respondent's use
of the County vehicle for the trip was $300.70.
Respondent utilized his County credit card to make purchases of fuel and other
DiVecchio, 08 -012
Page 27
personal expenses during the trip.
Respondent and his spouse, Susan DiVecchio, stayed at the Harrisburg Hilton,
checking in on January 14, 2007, and checking out on January 17, 2007. Respondent
utilized his County credit card to charge the hotel expenses, which totaled $776.13.
Respondent used his County credit card to charge $80.00 for meal and beverage
expenses for himself and a guest at a Harrisburg restaurant on January 15, 2007.
Respondent's February 2007 County credit card statement included a total of
$935.64 in charges related to attendance at the 2007 Inauguration of Governor Rendell.
These charges were paid by County check number 339682. As noted above, County
checks are printed with computer generated authorizing signatures. Check number
339682 was authorized by the signatures of Respondent as County Executive and
Stephanie B. Freeman as Director of Finance.
In correspondence submitted in response to a Commission subpoena, Respondent
claimed to have driven to Harrisburg with his spouse to attend the Inauguration of
Governor Rendell and also to meet with State Representatives John Hornaman, Florindo
Fabrizio, and Pat Harkins. No meetings were scheduled with Hornaman, Fabrizio, or
Harkins. Hornaman had no business meetings with Respondent during the time period of
January 14 - 17, 2007. Hornaman and Respondent were both attending events related to
the Governor's Inauguration and may have had some conversation socially. Fabrizio "ran
into" Respondent in Harrisburg during the timeframe in or around the Inauguration. They
were both attending events related to the Governor's Inauguration and may have met out
of convenience while in Harrisburg. Harkins had no business meetings with Respondent
during the time in question.
The parties have stipulated that Respondent realized a private pecuniary benefit in
the amount of $1,236.34 as a result of the County paying his and his spouse's travel
related expenses in association with attendance at the Governor's Inauguration, calculated
as the sum of the following: (1) subsistence, $130.80; (2) hotel expenses, $776.13; (3)
fuel, $28.71; and (4) mileage, $300.70.
The Spring 2007 International Council of Shopping Centers Convention:
In May 2007, the International Council of Shopping Centers ( "ICSC ") held its annual
spring convention in Las Vegas, Nevada. The ICSC is a global trade association in the
shopping center industry.
Prior to the May 2007 ICSC Convention, Respondent learned that local
businessman John M. Puline ( "Puline ") intended to travel to Las Vegas to attend the
Convention. Puline is President and owner of Puline & Sons, Incorporated, an excavation
business located in the County. Puline recently opened and is continually developing
resort fishing and camping at a location on Lake Erie's shore, within the County. Puline
owns other additional properties in the County for future development purposes.
Puline and Respondent do not have a social relationship. Puline and Respondent
have interacted on a limited number of occasions.
Respondent approached Puline and solicited Puline to accompany Puline to Las
Vegas and the ICSC Convention. Puline informed Respondent that he would purchase a
flight and hotel package for both of them and obtain admission passes to the ICSC
Convention.
In April 2007 Puline /Puline & Sons, Incorporated incurred charges for airfare and
lodging expenses for Respondent for attending the ICSC Convention. The cost of
DiVecchio, 08 -012
Page 28
Respondent's airfare was $543.00. The cost for lodging for Puline and Respondent was
$207.42. Puline /Puline & Sons, Incorporated paid these expenses.
Puline also provided a Convention admission badge to Respondent. The admission
badge was a "staff admittance badge" that ICSC had provided to Puline's son's employer
as an exhibitor at the Convention. The parties have stipulated that the admission badge
provided to Respondent had a minimum value of $740.00.
The parties have stipulated that transportation, lodging or hospitality totaling
$1,490.42 was paid for Respondent by Puline for the trip to the spring 2007 ICSC
Convention in Las Vegas, Nevada, consisting of the following: (1) airfare, $543.00; (2)
lodging, $207.42; and (3) ICSC Convention admission, $740.00. The parties have further
stipulated that Respondent was provided with such transportation, lodging and hospitality
in his capacity as the County Executive.
As discussed below, Respondent did not disclose on his SFI for the 2007 calendar
year the $1,490.42 in transportation, lodging, and hospitality provided to him by
Puline /Puline & Sons, Incorporated.
Respondent's Statements of Financial Interests:
As County Executive and in his former capacity as a County Councilman,
Respondent has been required to annually file an SFI form with the County by May 1St
An SFI compliance review for the County was conducted by the Investigative
Division on March 28, 2008. It was determined that Respondent had timely filed SFIs for
calendar years 2003, 2004, and 2005. There was no SFI on file with the County for
Respondent for the 2006 calendar year. The SFI for calendar year 2006 was required to
be filed by May 1, 2007.
On his SFI for calendar year 2003, in the block for disclosing any financial interest
in any legal entity engaged in business for profit, Respondent marked the block "none" and
did not disclose his financial interest in DiVecchio Food Products. In the block for
disclosing any office, directorship or employment in any business entity, Respondent did
disclose that he was the owner /operator of DiVecchio Food Products.
On his SFI for calendar year 2005, Respondent did not disclose his office,
directorship or employment in DiVecchio Food Products. Respondent also did not disclose
DiVecchio Food Products as a direct or indirect source of income, although Respondent's
income from the business exceeded $1,300.00 in 2005. However, Respondent did
disclose that he had a financial interest in DiVecchio Food Products as its co- owner.
Respondent did not file an SFI with the County for the 2006 calendar year by May 1,
2007. After receiving a Notice of Investigation from the Investigative Division, Respondent
filed an SFI with the County for the 2006 calendar year on or about June 4, 2008.
Respondent also filed an SFI with the County for the 2007 calendar year on or about
June 4, 2008. Respondent did not disclose on his SFI for calendar year 2007 the
transportation, lodging, and conference admission badge that he had received in 2007
from Puline /Puline & Sons, Incorporated.
As for the allegation that Respondent failed to disclose all sources of income in
excess of $1,300.00 on the SFI filed for the 2007 calendar year, the parties have stipulated
that the Investigative Division has been unable to obtain sufficient facts necessary to meet
its burden of proof.
DiVecchio, 08 -012
Page 29
Having highlighted the Stipulated Findings and issues before us, we shall now apply
the Ethics Act to determine the proper disposition of this case.
The parties' Consent Agreement sets forth a proposed resolution of the allegations
as follows:
3. The Investigative Division will recommend the following
in relation to the above allegations:
a. That a violation of Section 1103(a) of the Public
Official and Employee Ethics Act, 65 Pa.C.S.
§1103(a), occurred in relation to DiVecchio's
charging and receiving reimbursement of
expenses from Erie County for travel, including
lodging and airfare, that was personal in nature
and related to non - County business.
b. That an unintentional violation of Section
1104(a) of the Public Official and Employee
Ethics Act, 65 Pa.C.S. §1104(a), occurred when
DiVecchio failed to file a Statement of Financial
Interests for calendar year 2006 by May 1, 2007.
c. That an unintentional violation of Section
1105(b) of the Public Official and Employee
Ethics Act, 65 Pa.C.S. §1105(b), occurred when
DiVecchio failed to list DiVecchio Food Products
as a business for profit in which DiVecchio had a
financial interest on his Statement of Financial
Interests for calendar year 2003.
d. That an unintentional violation of Section
1105(b) of the Public Official and Employee
Ethics Act, 65 Pa.C.S. §1105(b), occurred when
DiVecchio failed to list DiVecchio Food Products
as a business in which he had an office,
directorship, or employment on his Statement of
Financial Interests for calendar year 2005.
e. That an unintentional violation of Section
1104(a) of the Public Official and Employee
Ethics Act, 65 Pa.C.S. §1104(a) occurred when
DiVecchio failed to file a Statement of Financial
Interests for calendar year 2007 by May 1, 2008.
f That no violation of Section 1105(b) occurred in
relation to DiVecchio's failure to disclose all
sources of income in excess of $1,300.00 on the
Statement of Financial Interests filed for the
2007 calendar year as the Investigative Division
was unable to obtain sufficient facts necessary
to meet its burden of proof.
g.
That an unintentional violation of Section
1105(b) of the Public Official and Employee
Ethics Act, 65 Pa.C.S. §1105(b), occurred when
DiVecchio failed to list the name and address of
DiVecchio, 08 -012
Page 30
the source and amount of payment for
transportation and lodging or hospitality received
in connection with public office or employment
totaling in excess of $650.00 that DiVecchio
received in relation to his attendance at the
Spring 2007 International Council of Shopping
Centers Convention on his Statement of
Financial Interests for calendar year 2007.
h. That allegations arising from Section 1104(d) of
the Public Official and Employee Ethics Act, 65
Pa.C.S. §1104(d), are hereby nol pros in that
actions under Section 1104(d) do not equate [to]
a violation of the Public Official and Employee
Ethics Act, 65 Pa.C.S. §1101 et seq.
4. DiVecchio agrees to make payment in the amount of
$2,850.00 in settlement of this matter payable to the
County of Erie and forwarded to the Pennsylvania State
Ethics Commission within thirty (30) days of the
issuance of the final adjudication in this matter.
5. DiVecchio agrees to file Statements of Financial
Interests for calendar years 2003, 2005, and 2007
disclosing all required information as appropriate with
Erie County within thirty (30) days of the issuance of the
final adjudication in this matter. Copies of said forms
shall be forwarded to the State Ethics Commission for
compliance verification purposes.
6. The Investigative Division will recommend that the
State Ethics Commission take no further action in this
matter; and make no specific recommendations to any
law enforcement or other authority to take action in this
matter. Such, however, does not prohibit the
Commission from initiating appropriate enforcement
actions in the event of Respondent's failure to comply
with this agreement or the Commission's order or
cooperating with any other authority who may so
choose to review this matter further.
Consent Agreement, at 2 -3.
In considering the Consent Agreement, we agree with the parties that a violation of
Section 1103(a) of the Ethics Act occurred in relation to Respondent's charging and
receiving reimbursement of expenses from the County for travel, including lodging and
airfare, that was personal in nature and related to non - County business. Cf., Maritz, Order
1525; Regola, Order 1517; Melenia, Order 1516; Hopkin, Order 1515; Matta, Order 1439;
Tancredi, Order 1434; Hoover, Order 1348; Sullivan, Order 1245; Choura, Order 942.
Respondent used the authority of his public position when he submitted an Air
Travel Authorization form to the County Finance Department for travel at County expense
to the September 2006 DSC Committee meeting, indicating that the purpose for travel was
"meetings with other government officials" when, in fact, the meeting was for political
purposes and was unrelated to County business. Respondent further used the authority of
his public position when he charged to his County credit card hotel expenses,
subsistence /alcohol expenses, and a $100.00 flight change fee incurred for the trip.
DiVecchio, 08 -012
Page 31
Respondent's signature appeared as an authorized signatory on the County check that
paid for Respondent's aforesaid credit card charges.
The parties have stipulated that Respondent realized a private pecuniary benefit in
the amount of $863.81 as a result of using his County position to incur personal travel
related expenses in association with his attendance at the September 2006 DSC meeting,
which he submitted to be paid by the County, calculated as the sum of the following: (1)
airfare, $438.20; (2) flight change fee, $100.00; (3) hotel expenses, $303.02; and (4)
subsistence /alcohol, $22.59.
Respondent used the authority of his public position when he traveled at County
expense to attend the January 2007 Governor's Inauguration. The parties have stipulated
that the trip was personal /political in nature and was not related to any official County
business, yet Respondent's expenses for attending the Inauguration were paid by the
County.
Respondent used the authority of his public position when he drove his County
provided vehicle to and from Harrisburg for the Inauguration and utilized his County credit
card to make purchases of fuel and other personal expenses during the trip. Respondent
further used the authority of his public position when he charged to his County credit card
hotel expenses and food and beverage expenses for himself and his spouse during the
trip. Respondent's signature appeared as an authorized signatory on the County check
that paid for Respondent's aforesaid credit card charges.
The parties have stipulated that Respondent realized a private pecuniary benefit in
the amount of $1,236.34 as a result of the County paying his and his spouse's travel
related expenses in association with attendance at the Governor's Inauguration, calculated
as the sum of the following: (1) subsistence, $130.80; (2) hotel expenses, $776.13; (3)
fuel, $28.71; and (4) mileage, $300.70.
With each element of the recommended violation established, we hold that a
violation of Section 1103(a) of the Ethics Act occurred in relation to Respondent's charging
and receiving reimbursement of expenses from the County for travel, including lodging and
airfare, that was personal in nature and related to non - County business.
We accept the recommendation of the parties that an unintentional violation of
Section 1104(a) of the Ethics Act occurred when Respondent failed to file an SFI for
calendar year 2006 by May 1, 2007. As County Executive, Respondent was required to
file the form with the County by May 1, 2007. However, Respondent did not file an SFI for
calendar year 2006 with the County until on or about June 4, 2008.
Although intent is not a requisite element of a violation of the Ethics Act, see,
Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Commw. Ct. 1987), the parties are
in agreement that the aforesaid violation was unintentional.
We hold that an unintentional violation of Section 1104(a) of the Ethics Act occurred
when Respondent failed to file an SFI for calendar year 2006 by May 1, 2007.
It is clear that an unintentional violation of Section 1105(b) of the Ethics Act
occurred when Respondent failed to list DiVecchio Food Products as a business for profit
in which Respondent had a financial interest on his SFI for calendar year 2003.
Section 1105(b)(9) of the Ethics Act requires the filer to disclose on the SFI any
financial interest in any legal entity engaged in business for profit. The term "financial
interest" is defined in the Ethics Act as "[a]ny financial interest in a legal entity engaged in
business for profit which comprises more than 5% of the equity of the business or more
than 5% of the assets of the economic interest in indebtedness." 65 Pa.C.S. § 1102.
DiVecchio, 08 -012
Page 32
Respondent is an owner of DiVecchio Food Products, and on some SFIs filed with the
County, he has listed his ownership interest in the business as 50 %.
On his SFI for calendar year 2003, in the block for disclosing any financial interest
in any legal entity engaged in business for profit, Respondent marked the block "none" and
did not disclose his financial interest in DiVecchio Food Products. However, in the block
for disclosing any office, directorship or employment in any business entity, Respondent
did disclose that he was the owner /operator of DiVecchio Food Products.
Based upon the above facts, we hold that an unintentional violation of Section
1105(b) of the Ethics Act occurred when Respondent failed to list DiVecchio Food
Products as a business for profit in which Respondent had a financial interest on his SFI
for calendar year 2003.
Similarly, on his SFI for calendar year 2005, Respondent did not disclose his office,
directorship or employment in DiVecchio Food Products as required by Section 1105(b)(8)
of the Ethics Act, 65 Pa.C.S. § 1105(b)(8). However, Respondent did disclose that he had
a financial interest in DiVecchio Food Products as its co- owner.
We accept the recommendation of the Consent Agreement and hold that an
unintentional violation of Section 1105(b) of the Ethics Act occurred when Respondent
failed to list DiVecchio Food Products as a business in which he had an office,
directorship, or employment on his SFI for calendar year 2005.
We accept the recommendation of the Consent Agreement and hold that an
unintentional violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a) occurred
when Respondent failed to file an SFI for calendar year 2007 by May 1, 2008.
We further hold that no violation of Section 1105(b) of the Ethics Act occurred in
relation to Respondent's alleged failure to disclose all sources of income in excess of
$1,300.00 on his SFI filed for the 2007 calendar year based upon an insufficiency of
evidence.
We accept the recommendation of the parties for a finding that an unintentional
violation of Section 1105(b) of the Ethics Act occurred when Respondent failed to list on
his SFI for calendar year 2007 the name and address of the source and amount of
payment for transportation and lodging or hospitality received in connection with public
office or employment totaling in excess of $650.00 that Respondent received in relation to
his attendance at the Spring 2007 ICSC Convention. Such disclosure was required by
Section 1105(b)(7) of the Ethics Act, 65 Pa.C.S. § 1105(b)(7). The parties are in
agreement that the aforesaid violation was unintentional.
We hold that an unintentional violation of Section 1105(b) of the Ethics Act occurred
when Respondent failed to list on his SFI for calendar year 2007 the name and address of
the source and amount of payment for transportation and lodging or hospitality received in
connection with public office or employment totaling in excess of $650.00 that Respondent
received in relation to his attendance at the Spring 2007 ICSC Convention.
As for Section 1104(d) of the Ethics Act, there has been a nol pros of that particular
portion of the allegations.
As part of the Consent Agreement, Respondent has agreed to make payment in the
amount of $2,850.00 payable to the County of Erie and forwarded to this Commission
within thirty (30) days of the issuance of the final adjudication in this matter.
Respondent has further agreed to file with the County SFIs for calendar years 2003,
2005, and 2007, appropriately disclosing all required information within thirty (30) days of
DiVecchio, 08 -012
Page 33
the issuance of the final adjudication in this matter, and to forward copies of all such filings
to this Commission for compliance verification purposes.
We determine that the Consent Agreement submitted by the parties sets forth a
proper disposition for this case, based upon our review as reflected in the above analysis
and the totality of the facts and circumstances.
Accordingly, per the Consent Agreement of the parties, Respondent is directed to
make payment in the amount of $2,850.00 payable tq the County of Erie and forwarded to
this Commission by no later than the thirtieth (30) day after the mailing date of this
adjudication and Order.
Respondent is further directed to file with the County SFIs for calendar years 2003,
2005, and ?007, appropriately disclosing all required information by no later than the
thirtieth (30 day after the mailing date of this adjudication and Order, and to forward
copies of all such filings to this Commission for compliance verification purposes.
Compliance with the foregoing will result in the closing of this case with no further
action by this Commission. Noncompliance will result in the institution of an order
enforcement action.
IV. CONCLUSIONS OF LAW:
1. As the elected County Executive for Erie County ( "County ") since January 2, 2006,
and a County Councilman from January 1998 until December 31, 2005,
Respondent Mark DiVecchio ( "DiVecchio ") has been a public official /public
employee subject to the provisions of the Public Official and Employee Ethics Act
( "Ethics Act "), 65 Pa.C.S. § 1101 et seq.
2. DiVecchio violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when
as County Executive, he charged and received reimbursement of expenses from the
County for travel, including lodging and airfare, that was personal in nature and
related to non - County business.
3. An unintentional violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. §
1104(a), occurred when DiVecchio failed to file a Statement of Financial Interests
( "SFI ") for calendar year 2006 by May 1, 2007.
4. An unintentional violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. §
1105(b), occurred when DiVecchio failed to list DiVecchio Food Products as a
business for profit in which DiVecchio had a financial interest on his SFI for
calendar year 2003.
5. An unintentional violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. §
1105(b), occurred when DiVecchio failed to list DiVecchio Food Products as a
business in which he had an office, directorship, or employment on his SFI for
calendar year 2005.
6. An unintentional violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. §
1104(a), occurred when DiVecchio failed to file an SFI for calendar year 2007 by
May 1, 2008.
7 No violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred in
relation to DiVecchio's alleged failure to disclose all sources of income in excess of
$1,300.00 on his SFI filed for the 2007 calendar year based upon an insufficiency of
evidence.
DiVecchio, 08 -012
Page 34
8. An unintentional violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. §
1105(b), occurred when DiVecchio failed to list on his SFI for calendar year 2007
the name and address of the source and amount of payment for transportation and
lodging or hospitality received in connection with public office or employment
totaling in excess of S650.00 that DiVecchio received in relation to his attendance
at the Spring 2007 International Council of Shopping Centers Convention.
In Re: Mark DiVecchio,
Respondent
ORDER NO. 1533
File Docket: 08 -012
Date Decided: 9/22/09
Date Mailed: 10/6/09
1 Mark DiVecchio ( "DiVecchio "), a public official /public employee in his capacities as
the elected County Executive for Erie County ( "County ") since January 2, 2006, and
a County Councilman from January 1998 until December 31, 2005, violated Section
1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1103(a), when as County Executive, he charged and received reimbursement of
expenses from the County for travel, including lodging and airfare, that was
personal in nature and related to non - County business.
2. An unintentional violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. §
1104(a), occurred when DiVecchio failed to file a Statement of Financial Interests
( "SFI ") for calendar year 2006 by May 1, 2007.
3. An unintentional violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. §
1105(b), occurred when DiVecchio failed to list DiVecchio Food Products as a
business for profit in which DiVecchio had a financial interest on his SFI for
calendar year 2003.
4. An unintentional violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. §
1105(b), occurred when DiVecchio failed to list DiVecchio Food Products as a
business in which he had an office, directorship, or employment on his SFI for
calendar year 2005.
5. An unintentional violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. §
1104(a), occurred when DiVecchio failed to file an SFI for calendar year 2007 by
May 1, 2008.
6. No violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred in
relation to DiVecchio's alleged failure to disclose all sources of income in excess of
$1,300.00 on his SFI filed for the 2007 calendar year based upon an insufficiency of
evidence.
7 An unintentional violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. §
1105(b), occurred when DiVecchio failed to list on his SFI for calendar year 2007
the name and address of the source and amount of payment for transportation and
lodging or hospitality received in connection with public office or employment
totaling in excess of S650.00 that DiVecchio received in relation to his attendance
at the Spring 2007 International Council of Shopping Centers Convention.
8. Per the Consent Agreement of the parties, DiVecchio is directed to make payment
in the amount of $2,850.00 payable to the County of Erie and forwarded to the
Pennsylvania State Ethics Commission by no later than the thirtieth (30 day after
the mailing date of this Order.
9. DiVecchio is further directed to file with the County SFIs for calendar years 2003,
2005, and 2007 appropriately disclosing all required information by no later than
the thirtieth (30 day after the mailing date of this Order, and to forward copies of
all such filings to the Pennsylvania State Ethics Commission for compliance
DiVecchio, 08 -012
Page 36
verification purposes.
10. Compliance with Paragraphs 8 and 9 of this Order will result in the closing of this
case with no further action by this Commission.
a. Non - compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
Louis W. Fryman, Chair