Loading...
HomeMy WebLinkAbout1547-R Seropian PLEASE NOTE: The Commission decision identified as Order No. 1547-R was vacated. See, Seropian v. State Ethics Commission, No. 948 C.D. 2010 (Pa. Cmwlth. April 7, 2011) (2010 Pa. Commw. LEXIS 728). In re: David Seropian, : File Docket: 07-090 Respondent : X-Ref: Order No. 1547-R : Date Decided: 4/19/10 : Date Mailed: 4/21/10 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Mark Volk The State Ethics Commission received a request for reconsideration on January 27, 2010, with respect to Order No. 1547 issued on December 29, 2009. Pursuant to Section 21.29 of the Regulations of the Commission, the discretion of the State Ethics Commission to grant reconsideration is properly invoked as follows: § 21.29. Finality; reconsideration. (b) Any party may ask the Commission to reconsider an order or opinion within 30 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (c) A request for reconsideration filed with the Commission will delay the public release of an order, but will not suspend the final order unless reconsideration is granted by the Commission. (d) A request for reconsideration may include a request for a hearing before the Commission. (e) Reconsideration may be granted at the discretion of the Commission if: (1) A material error of law has been made. (2) A material error of fact has been made. (3) New facts or evidence are provided which would lead to reversal or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. 51 Pa. Code § 21.29(b), (c), (d), (e). This adjudication of the Commission is hereby issued which sets forth the Discussion and Reconsideration Order. This Reconsideration Order is final and shall be made available with Order No. 1547 as public documents on the fifth (5th) business day following the date of issuance of this Order. Seropian, 07-090 Page 2 DISCUSSION On December 29, 2009, we issued Seropian, Order No. 1547, following our review of the record in this case. The allegations were that David Seropian, a (public official/public employee) in his capacity as the Business Manager for the McKeesport [Area] School District, Allegheny County violated Sections 1103(a) and 1105(b) of the State Ethics Act (Act 93 of 1998) when he used the authority of his public position for a private pecuniary gain by utilizing the facilities and equipment of the school district while being compensated by the McKeesport [Area] School District for his personal benefit including, but not limited to, his candidacy for a school director position with the West Jefferson Hill School District and his position as a baseball team official; when he solicited school district vendors to make campaign contributions to him and/or committees on his behalf; and when he failed to disclose the receipt of gifts received from a school district vendor, Gleason Insurance valued in excess of $250.00 on Statements of Financial Interests filed for the 2002 and 2006 calendar years. In applying the allegations to the facts of record, we found that: 1. David Seropian, a public official/public employee in his capacity as Business Manager for the McKeesport Area School District (“MASD”), Allegheny County, from October 1997 to the present, did not violate Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), with respect to campaign contributions made by MASD vendors Lawrence Fagan, Michael Gleason, Scott Palmquist, or Gregory Jacobs to Seropian and/or committees on his behalf for Seropian’s candidacy for School Director for West Jefferson Hills School District (“WJHSD”), in that Seropian did not solicit such contributions or otherwise use the authority of his public position to obtain such contributions. 2. 3. Seropian violated Section 1103(a) of the Ethics Act when he utilized the facilities and equipment of o er than to note our conclusion that the allegation had been nol prossed based upon statements made by the Investigative Division at the hearing in this case. In addition, we ordered Seropian to pay restitution to the McKeesport Area School District (“MASD” or “School District”) in the total amount of $640.11, with such payment to be made payable to the School District and forwarded to this Commission for processing. Following the issuance of Order No. 1547, this Commission received on January 27, 2010, Seropian’s Request for Reconsideration. In the Request for Reconsideration, Seropian claims that the Commission made material errors of fact as follows: (1) that contrary to Fact Finding 100(d) in Order No. 1547, Seropian’s solicitation of a campaign contribution from Gerald Moore (“Moore”), President of MASD vendor “Nutrition Inc.,” did not occur at a meeting in 2007 where he Seropian, 07-090 Page 3 and Moore met to discuss the MASD food service contract; (2) that MASD’s policy regarding political activities of its professional employees, including the collection of campaign funds on School District property, does not apply to Seropian; (3) that the Commission failed to address testimony of Shirley Golofski, former Superintendent of Schools for MASD, and Henry Benton South, Technology Coordinator for MASD, that personal use of MASD computers by MASD employees is common and acceptable; and (4) that the calculation(s) of the minutes listed in Fact Finding 109 f is/are incorrect. Seropian further claims that the Commission’s Conclusions of Law are in error as follows: (1) that regardless of the de minimis nature of the campaign contribution that Seropian solicited from Moore, Seropian did not violate Section 1103(a) of the Ethics Act by soliciting such contribution because candidates for political office have the right to solicit and/or accept legal campaign contributions, and the Commission should have found no violation of Section 1103(a) of the Ethics Act on that basis alone; (2) that Seropian did not use the authority of his public position when he used the MASD computer and internet service for his personal use; (3) that the Notice of Investigation issued to Seropian on September 5, 2007, pertained solely to Seropian’s alleged use of MASD facilities and equipment for the benefit of his candidacy for a School Director position with West Jefferson Hills School District (“WJHSD”), that he was not notified of the investigation into his alleged use of the MASD computer for personal purposes until an Amended Notice of Investigation was issued to him on August 13, 2008, and that because of the five-year statute of limitations of Section 1108(m) of the Ethics Act, the Commission erred in considering any computer usage by him more than five years prior to August 13, 2008; (4) that in any event, the amount of the private pecuniary benefit realized by Seropian from using MASD facilities and equipment for his personal benefit was de minimis pursuant to the case of Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004); and (5) that any violation of Section 1103(a) of the Ethics Act found as to Seropian’s use of MASD facilities and equipment for his personal benefit should not encompass usage for his candidacy for WJHSD School Director or his position as a baseball team official because the evidence of record did not quantify the amount of pecuniary benefit he realized from such usage. In addition, Seropian asserts that the Fact Findings in Order No. 1547 regarding the Section 1105(b) allegation—specifically, Fact Findings 84 through 91—should be deleted from the Order as said allegation was nol prossed by the Investigative Division. The Investigative Division has filed an Answer opposing Seropian’s Request for Reconsideration, contending: (1) that the Fact Findings regarding the Section 1105(b) allegation were admitted by Seropian’s Answer to the Investigative Complaint/Findings Report and thus were properly included in the Commission’s Order; (2) that Seropian used the authority of his public position as MASD Business Manager when he utilized his MASD computer and the MASD internet service for his personal benefit in violation of MASD’s policy on acceptable use of MASD technology and the internet; (3) that the assertion that other employees use MASD computers for personal purposes does not constitute a defense to Seropian’s violation of Section 1103(a) of the Ethics Act by engaging in such conduct; (4) that the total amount of minutes for which Seropian used his MASD computer for personal purposes was correctly calculated; (5) that the Commission did not err in calculating the applicable period of the five-year statute of limitations of Section 1108(m) of the Ethics Act; (6) that the amount of the private pecuniary benefit realized by Seropian from using MASD facilities and equipment for his personal benefit was not de minimis; and (7) that Seropian has failed to meet the regulatory criteria for the exercise of the Commission’s discretion to grant reconsideration. At a hearing on March 25, 2010, the parties appeared before the Commission and presented oral argument that reiterated their positions as set forth in their respective filings regarding the Request for Reconsideration. Seropian, 07-090 Page 4 In considering whether to grant reconsideration, we initially note that this Commission’s Fact Findings must be supported by “substantial evidence,” which is “such relevant evidence as a reasonable person would consider adequate to support a finding.” Bouch v. State Ethics Commission, 848 A.2d 1078, 1080 (Pa. Cmwlth. 2004) (Citations omitted). We note that “[t]he existence of conflicting evidence does not mean the evidence relied on is not substantial.” Id. at 1080 (Citations omitted). In Order No. 1547, this Commission reviewed an extensive record, which included some conflicting evidence. This Commission weighed the evidence, made Fact Findings based upon substantial evidence, applied the Ethics Act to the facts of record, and found one violation of Section 1103(a) of the Ethics Act based upon clear and convincing proof. See, 65 Pa.C.S. § 1108(g). Although Seropian may disagree with our view of the evidence, Seropian has failed to establish any material error of law or fact that would warrant reconsideration of Order No. 1547. With regard to Seropian’s specific claims of material errors of fact, there was credible evidence, consisting of the testimony of Moore, that Seropian’s solicitation of a campaign contribution from Moore occurred at a meeting in 2007 where Seropian and Moore met to discuss the MASD food service contract. As to Seropian’s claim that MASD’s policy regarding political activities of its professional employees does not apply to him, Seropian did not present any evidence in this regard at the hearing in this matter, and any such evidence would not lead to a modification or reversal of our Order given that we did not find any violations of Section 1103(a) of the Ethics Act pertaining to campaign contributions made to or solicited by Seropian in this case. With regard to testimony as to the personal use of MASD computers by other MASD employees, such testimony has no relevance to our decision as the issue is whether Seropian’s conduct violated the Ethics Act, and the argument that “everybody else does it” would not constitute a defense to a violation of the Ethics Act. As for the calculations of the minutes listed in Fact Finding 109 f, such calculations are accurate based upon the record. As to Seropian’s claims of errors of law, we reject Seropian’s argument that the Commission should have concluded that Seropian did not violate Section 1103(a) of the Ethics Act when he solicited a campaign contribution from Moore for Seropian’s candidacy for School Director for WJHSD based on grounds other than the de minimis nature of the contribution. Seropian does not dispute that he solicited said campaign contribution from Moore. There is no basis for Seropian to claim to be aggrieved due to the particular grounds upon which we found that he did not violate the Ethics Act as to such conduct. Cf., ACS Enterprises, Inc. v. Norristown Borough Zoning Hearing Board, 659 A.2d 651, 654 (Pa. Cmwlth. 1995), allocatur denied, 542 Pa. 674, 668 A.2d 1136 (1995) (stating that “a prevailing party’s disagreement with the legal reasoning or basis for a decision does not amount to a cognizable aggrievement”). There is no merit to Seropian’s argument that he did not use the authority of his public position when he used the MASD computer and internet service for his personal use. The element of use of authority of public office/employment requires action by the public official/public employee that in some way facilitates receipt of a private pecuniary benefit. See, McGuire v. State Ethics Commission, 657 A.2d 1346 (Pa. Cmwlth. 1995). As we noted in Order No. 1547, but for holding his public position with the School District, Seropian would not have had access to the School District’s computer and internet service. (See, Order No. 1547 at 41). Seropian did not unknowingly and passively receive a private pecuniary benefit as a result of being in his public position; instead, Seropian took affirmative steps to use the MASD computer and internet service for personal use during normal work hours. Accordingly, there was a use of authority of public office/employment by Seropian. Seropian argues that the Commission erred in considering any computer usage by him more than five years prior to August 13, 2008, when an Amended Notice of Seropian, 07-090 Page 5 Investigation was issued to him, because of the operation of the five-year statute of limitations of Section 1108(m) of the Ethics Act. We note that the Notice of Investigation issued to Seropian on September 5, 2007, stated that the allegations against him included, in pertinent part, that “he used the authority of his public position for a private pecuniary gain by utilizing the facilities and equipment of the school district for the benefit of his candidacy for a school director position with the West Jefferson Hill [sic] School District….” See, ID Exhibit 1, p. 54. It is our conclusion that the language of the Notice of Investigation issued on September 5, 2007, is broad enough to encompass the alleged use of Seropian’s MASD facilities and equipment for personal purposes. Additionally, there was only one investigation that formed the basis for this matter. Therefore, by operation of the five-year statute of limitations of Section 1108(m) of the Ethics Act, we may consider any usage by Seropian of the MASD facilities and equipment for personal purposes from September 5, 2002, forward. See, Order No. 1547, at 41. We reject Seropian’s claim that the amount of the private pecuniary benefit realized by Seropian from using MASD facilities and equipment for his personal benefit was de minimis pursuant to the case of Bixler, supra. As we noted in Order No. 1547, in Bixler, the Commonwealth Court held that a net profit in the amount of $561.77 resulting from business transactions between a township supervisor’s employer and the township would fall within the “de minimis” exclusion to the definition of “conflict of interest.” (See, Order No. 1547 at 41). The compensation/salary that Seropian received for time spent viewing unauthorized and inappropriate websites on the MASD computer during normal work hours exceeded the amount found to be de minimis in Bixler, and under the totality of the facts and circumstances of this case, we do not find the aforesaid amount of compensation/salary received by Seropian to be de minimis. Seropian argues that any violation of Section 1103(a) of the Ethics Act found as to his use of MASD facilities and equipment for his personal benefit should not encompass usage for his candidacy for WJHSD School Director or his position as a baseball team official because the evidence of record did not quantify the amount of pecuniary benefit he realized from such usage. We disagree. The evidence of record established that Seropian’s use of the MASD facilities and equipment for his personal benefit was not limited to accessing inappropriate and non-work related websites but also included exchanging multiple emails and generating multiple documents pertaining to his candidacy for School Director for WJHSD and his position as a baseball team official (see, Fact Findings 109 c, d), and Seropian clearly recognized some private pecuniary benefit from these additional uses of the MASD facilities and equipment. Finally, we reject Seropian’s assertion that the Fact Findings in Order No. 1547 regarding the Section 1105(b) allegation—specifically, Fact Findings 84 through 91— should be deleted from the Order as said allegation was nol prossed by the Investigative Division. Fact Findings 84 through 91 were specifically admitted by Seropian in his Answer to the Investigative Complaint/Findings Report issued to him. (See, Investigative Complaint/Findings Report, at paragraphs 111-120; Answer to Investigative Complaint, at paragraphs 111-120). These admitted Fact Findings are to be treated as conclusive judicial admissions. See, Bartholomew v. State Ethics Commission, 795 A.2d 1073 (Pa. Cmwlth. 2002). Seropian cites no legal authority requiring that we exclude these admitted Fact Findings from our final adjudication of this matter. Having reviewed the asserted bases for the Request for Reconsideration, our determination is as follows. No material error of law has been established. No material error of fact has been established. No new facts or evidence has been provided which would lead to a reversal or modification of Order No. 1547. Seropian has failed to meet his burden of proof to establish any need for reconsideration. The Request for Reconsideration is denied. Seropian, 07-090 Page 6 In Re: David Seropian, : File Docket: 07-090 Respondent : Date Decided: 4/19/10 : Date Mailed: 4/21/10 RECONSIDERATION ORDER NO. 1547-R 1. The Request for Reconsideration of Seropian, Order No. 1547 is denied. BY THE COMMISSION, Louis W. Fryman, Chair Commissioner Nicholas A. Colafella did not participate in the adjudication of this matter.