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HomeMy WebLinkAbout057-S TrimarchiIN RE: WILLIAM M. TRIMARCHI : Respondent Before: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger Joseph W. Marshall, III File Docket: 92 -089 -P Date Decided: February 16, 1993 Date Mailed: February 19, 1993 The State Ethics Commission received information regarding possible violation(s) of Section 4 and /or Section 5 of the Public Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, 65 P.S. §401 et seq. Written Notice was mailed to Respondent in accordance with Section (7)(5) of the Ethics Law, as to which there was no response. A Notice and Order to Show Cause was issued and served upon Respondent. An Answer was filed and a hearing was deemed waived. The record is complete. This adjudication of the Commission is hereby issued, which sets forth Findings of Fact, Discussion, Conclusions of Law and Order. This Adjudication is final and is a public document. Reconsideration may be requested. A request for reconsideration, however, does not affect the finality of this adjudication. A reconsideration request must be received at this Commission within fifteen days of issuance and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §S2.38(b),(c). William M. Trimarchi February 19, 1993 Page 2 I. FINDINGS: 1. Respondent William M. Trimarchi is an adult individual who resides or maintains a mailing address at 668 East Pike Road, Indiana, Pennsylvania 15701. 2. Respondent is now and at all times relevant to these proceedings has been a Member of the Indiana County Board of Assistance. (a) Respondent specifically held the aforesaid position in 1992. (b) Respondent admits that he is subject to the provisions of the Ethics Law. (c) Respondent admits that as a Member of the Indiana County Board of Assistance, Respondent is a public official required to file a Statement of Financial Interests each year Respondent holds this position and the year after leaving this position. 3. Respondent did not file a Statement of Financial Interests for calendar year 1991 with the State Ethics Commission and the Governor's Office of Administration on or before May 1, 1992. (a) Respondent admits that he did not file a Statement of Financial Interests with the State Ethics Commission in a timely fashion. (b) Respondent states that he did file a multi -page statement known as a Code of Conduct and Statement of Financial Interests with the Governor's Office in astimely manner. (c) Respondent avers that he has learned only recently that the aforesaid Governor's Code of Conduct. Statement of Financial Interests differs from the Statement of Financial Interests required under the Ethics Law. (d) Respondent states that he believes that his misunderstanding over these two documents is the cause of this problem. (e) Respondent avers that he in no way intended to cause a problem or circumvent the requirements of the Ethics Law. (f) Respondent notes that he has now filed a Statement of Financial Interests with the State Ethics Commission. ( ee, Finding 7 below). William M. Trimarchi February 19, 1993 Page 3 4. The records of the State Ethics Commission indicate that a Notice letter dated June 23, 1992, and a final Notice letter dated July 20, 1992, were served upon Respondent by this Commission. The said Notice letters stated in detail the specific allegations against Respondent concerning the delinquency of Respondent's Statement of Financial Interests for calendar year 1991 and the penalties for failure to file or for filing a deficient Statement of Financial Interests. Each of the said Notice letters provided Respondent an opportunity to avoid the institution of these civil penalty proceedings by filing an accurate and complete Statement of Financial Interests for calendar year 1991 within twenty (20) days of the date of the Notice letter. (a) Respondent denies service of the aforesaid Notice letters upon him. (b) Respondent states that he does not recall receiving the aforesaid Notice letters. 5. Respondent did not file a Statement of Financial Interests with the State Ethics Commission and the Governor's Office of Administration for calendar year 1991 within twenty days of the date of the said final Notice letter. (a) Respondent states that he has now filed his Statement with the State Ethics Commission, has now fully complied with all filing requirements and is in compliance with the Ethics Law. 6. The records of the State Ethics Commission reflect the following: (a) On August 31, 1988, this Commission received Respondent's Statement of Financial Interests dated August 9, 1988, designating calendar year 1988. (b) On January 13, 1989, this Commission received Respondent's Statement of Financial Interests dated January 10, 1989 which did not designate a calendar year. (c) Respondent was served with Notice of the delinquency of his Statement of Financial Interests for calendar year 1989. (d) On February 26, 1991, this Commission received Respondent's Statement of Financial Interests dated February 21, 1991, designating calendar year 1990. 7. Respondent states that he should not be assessed the maximum William M. Trimarchi February 19, 1993 Page 4 civil penalty because of the following alleged mitigating circumstances: (a) That Respondent has no recollection of receiving the aforesaid Notice letters, and that due to the serious nature of these allegations, had Respondent received or recalled receiving said Notices he would have answered in a timely fashion as to which Respondent cites his alleged timely filing with the Governor's Office; (b) Respondent's subsequent filing of the Statement of Financial Interests with this Commission; and (c) Lack of intent to violate the Ethics Law or to conceal the relevant required information, coupled with his regret for any possible oversight on his part. 8. As a matter of public record, Respondent filed a Statement of Financial Interests f9r calendar year 1991 after issuance of the Order to Show Cause which Statement of Financial Interests is dated December 3, 1992, and was received by this Commission on December 7, 1992. (a) Blocks 10 and 13 of the said Statement of Financial Interests are not completed in anyway but have been left blank. II. DISCUSSION: Respondent is now and at all times relevant to these proceedings has been a Member of the Indiana County Board of Assistance. Respondent specifically held the aforesaid position in 1992. As a Member of the Indiana County Board of Assistance, Respondent is a "public official" as that term is defined under the Public Official and Employee Ethics Law ( "Ethics Law "), 65 P.S. 5401, et sea., and as such, Respondent is subject to the provisions of the Ethics Law. Factually, Respondent failed to timely file a Statement of Financial Interests for calendar year 1991 with the State Ethics Commission and the Governor's Office of Administration, which constitutes a failure to comply with Sections 4 and 5 of the Ethics Law. 65 P.S. SS404,405. Section 9(f) of the Ethics Law provides as follows: (f) In addition to any other civil remedy or criminal penalty provided for in this act, the commission William M. Trimarchi February 19, 1993 Page 5 may, after notice has been served in accordance with section 7(5) and upon a majority vote of its members, levy a civil penalty upon any person subject to this act who fails to file a statement of financial interests in a timely manner or who files a deficient statement of financial interests, at a rate of not more than $25 for each day such statement remains delinquent or deficient. The maximum penalty payable under this paragraph is $250. 65 P.S. S409(f). An application of Section 9(f) to this case establishes that this Commission has the discretion to levy a maximum civil penalty against the Respondent for the delinquent Statement of Financial Interests for calendar year 1991. The prerequisite service of a Notice letter in accordance with Section 7(5) was satisfied. Respondent has denied service of the Notice letters dated June 23, 1992, and July 20, 1992, on the basis that he does not recall receiving them. Respondent alleges that had he received the Notices or had he recalled receiving them, he would have answered in a timely fashion, which he alleges to be evidenced by a filing with the Governor's Office. (See, Findings 4(a),(b); 7(a)). These arguments must be rejected. The public records of the State Ethics Commission may not be disregarded merely on the basis of Respondent's allegation that he does not recall receiving the Notice letters and his speculation that he would have responded had he received -- or recalled receiving -- them. Respondent did not remedy the failure to file a Statement of Financial Interests for calendar year 1991 although given twenty days from the date of the aforesaid final Notice letter in which to do so. This Commission then instituted formal proceedings against Respondent by issuing an Order to Show Cause, ordering Respondent to show cause why a civil penalty should not be levied against Respondent. Respondent's Answer to the Order to Show Cause has failed to show cause why a civil penalty should not be levied against Respondent in this matter. Respondent admits that he failed to file the requisite Statement of Financial Interests with this Commission in a timely fashion. Respondent's averments as to filing a form with the Governor's Office are clarified in Respondent's Supplemental Answer as pertaining to his filing of the "Code of Conduct Statement of Financial Interests" required by the Governor's Office under the Governor's Code of Conduct. Respondent alleges that he learned only recently of the difference between the two forms and that he believes that his misunderstanding over the two documents is what has caused this problem. Respondent states that he in no way William M. Trimarchi February 19, 1993 Page 6 intended to cause a problem or circumvent the requirements of the Ethics Law. The lack of intent to violate the Ethics Law is not a defense. Intent is not a requisite element for a finding of a violation of the Ethics Law. See, Yacobet v. Com., State Ethics Com'n., 531 A.2d 536 (1987). Under the appropriate circumstances, however, this Commission may consider the lack of intent as a mitigating circumstance in determining whether and in what amount a civil penalty should be assessed. In this case, if we accept that Respondent did not intend to violate the Ethics Law, we must nevertheless confront the question of whether his alleged confusion between the form which he is required to file under the Ethics Law and the form which he is required to file under the Governor's Code of Conduct is reasonable. This is not the first instance in which Respondent has been required to file the Statement of Financial Interests required under the Ethics Law. Nor is this the first instance in which Respondent has actually filed said form. Indeed, on three prior occasions, Respondent has filed a Statement of Financial Interests form as promulgated by this Commission. Thus, if Respondent truly did not know the difference between the two forms, he should have known. We would additionally take notice that the form promulgated for compliance under the Governor's Code of Conduct does not physically resemble the form promulgated by this Commission. Furthermore, during Respondent's entire service on the Board, the form promulgated under the Governor's Code of Conduct has consistently provided on page 1, as its first instruction, the following: 1. This financial disclosure statement is required under the Governor's Code of conduct promulgated by Executive Order 1980 -18 dated September 3, 1980. It is not to be confused with any financial disclosure statement completed and submitted under the State Ethics Act, Act 170. (Emphasis in the original). Based upon the totality of circumstances in this case, we hereby levy one civil penalty against Respondent William M. Trimarchi in the total amount of $150.00. In levying the aforesaid civil penalty, we are cognizant that we could assess a per diem . civil penalty against Respondent up to the total maximum amount of Two- Hundred and Fifty Dollars ($250.00) allowed by the Ethics Law, William M. Trimarchi February 19, 1993 Page 7 but have determined that an appropriate exercise of our discretion in this case would be to assess a lesser civil penalty in the total amount of $150.00. It is noted that following the issuance of the Order to Show Cause, Respondent filed a Statement of Financial Interests dated December 3, 1992 for calendar year 1991. The said Statement of Financial Interests is technically deficient. Blocks 10 and 13 of said form have not been completed in any way whatsoever, but have been left blank. Respondent shall be ordered to file an amended, complete and accurate Statement of Financial Interests for calendar year 1991. III. CONCLUSIONS OF LAW: 1. Respondent William M. Trimarchi is now and at all times relevant to these proceedings has been a Member of the Indiana County Board of Assistance and as such Respondent is a "public official" subject to the provisions of the Ethics Law, Act 9 of 19$9. 2. Respondent failed to comply with the requirements of Sections 4 and 5 of the Ethics Law when Respondent failed to timely file a Statement of Financial Interests for calendar year 1991 with the State Ethics Commission and the Governor's Office of Administration. 3. Notice of the delinquency of Respondent's Statement of Financial Interests for calendar year 1991 was previously served upon Respondent in accordance with Section 7(5) of the Ethics Law, 65 P.S. S407(5). 4. Based upon the totality of the circumstances in this case, a civil penalty is warranted. 5. Respondent's Statement of Financial Interests for calendar year 1991, dated December 3, 1992, and received by this Commission on December 7, 1992, is technically deficient. IN RE: WILLIAM M. TRIMARCHI : File Docket: 92 -089 -P Date Decided: February 16, 1993 Respondent Date Mailed: February 19, 1993 ORDER NO. 057 -S 1. William M. Trimarchi, as a Member of the Indiana County Board of Assistance, failed to comply with Sections 4 and 5 of the Ethics Law, 65 P.S. $f404, 405, by failing to timely file a Statement of Financial Interests for calendar year 1991 with the State Ethics Commission and the Governor's Office of Administration. 2. Based upon the circumstances of this case, a total civil penalty in the amount of $150.00 is hereby levied against Respondent William M. Trimarchi. Respondent is ordered to pay the above civil penalty in the total amount of $150.00 within thirty days of the issuance of this Order, by forwarding a check to this Commission payable to the Commonwealth of Pennsylvania for deposit in the State Treasury. . 3. Respondent William M. Trimarchi is directed within 30 days of issuance of this Order to file an amended, complete and accurate Statement of Financial Interests for calendar year 1991 with the State Ethics Commission and the Governor's Office of Administration, correcting all technical deficiencies noted above and providing full financial disclosure as required by the Ethics Law. 4. Failure to comply with any provision of this Order will result in the initiation of an appropriate enforcement action. BY THE COMMISSION, James M. Howley,