HomeMy WebLinkAbout1031R LucchinoIn re: George M. Lucchino
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
(1) A material error of law has been made.
(2) A material error of fact has been made.
File Docket: 95- 070 -C2
Date Decided: 2/20/97
Date Mailed: 3/7/97
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Roy W. Wilt
Rev. Joseph G. Quinn
Boyd E. Wolff
The State Ethics Commission received a request for reconsideration on December 13,
1996, with respect to Order No. 1031 issued on November 13, 1996. 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 15 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:
(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 and Order 1031 are final and shall be made available as
public documents on the fifth (5th) business day following the date of issuance of this Order.
LucchinQ, 95- 070 -C2
Page 2
Following the issuance of Order No. 1031, Respondent Lucchino timely filed a
Petition for Reconsideration. The Investigative Division filed an Answer to the Petition
for Reconsideration.
DISCUSSION
On November 13, 1996, we issued Lucchino, Order No. 1031, following our
review of the record in this case.
The allegation was that Lucchino, as a Supervisor for Robinson Township,
Washington County, violated Sections 3(a) of the Ethics Law (Act 9 of 1989) as to the
allegation that he used the authority of his office for a private pecuniary benefit by
directing and approving the use of township equipment and township personnel,
including himself, to perform services at his private property.
In applying the allegation to the facts of record, we found that:
1. George M. Lucchino violated Section 3(a) of Act 9 of 1989 when he utilized a
Township truck, two roadcrew members and himself to pick up scrap metal at
his property at Township expense.
2. Lucchino was directed within thirty days of the date of issuance of that Order
to make restitution to Robinson Township through this Commission in the
amount of $264.50.
Respondent has raised ten arguments.
Lucchino's first argument is that he only had eleven days to review the
documents supplied by the Investigative Division prior to hearing, being unaware that
he had a thirty day period to review such materials. Neither Act 9 of 1989, 65 P.S.
§408, nor the Regulations, 51 Pa.Code §21.22, provide a Respondent with a thirty
day period to review documents prior to hearing. We reject the first argument as
having no legal basis.
Lucchino's second argument references a proposed Consent Agreement which
he asserts he refused to sign because one of its paragraphs was incorrect. The
proposed Consent Agreement, which is not part of the hearing record in this case, is
simply a failed attempt by the parties to amicably resolve the case. The proposed
unexecuted Consent Agreement, being totally irrelevant, forms no basis for
reconsideration.
The third argument proffered by Lucchino is that a staff member of this
Commission stated that an investigation is not conducted unless a matter is over
$400. First, we know that such a statement was not made. Staff of this Commission
do not give rulings in telephone conversations. Further, this Commission has not ruled
that matters under $400 are dismissed as being de minimis. In fact, in Schweinsbera,
Order 900, we noted that the de minimis exclusion is determined on a case by case
basis. We reject this argument as being both factually and legally incorrect.
Lucchino in his fourth argument offers certain receipts by Heidelberg Metals
issued to the Township as to the sale of scrap and then argues that he has made other
scrap donations to the Township for which he received no credit. Since these
Lucchino, 95- 070 -C2
Page 3
documents are not part of the hearing record and are in any event irrelevant as to the
issue we decided, we reject this argument.
The fifth and sixth arguments of Lucchino concern an alleged discrepancy as to
the amount of time spent by roadworkers at the Lucchino property which Lucchino
asserts supports his position that he did not spend that many hours at his property for
the scrap pick up. In Order 1031, we looked at the total record and in particular the
best evidence, the Township time Togs themselves, which show the amount of time
spent by employees and the functions they performed at those times. Since our
determination is supported by the record, we find no material error of law or fact and
reject the argument.
In Lucchino's seventh argument, he asserts that the case is "frivolous" based
upon the statement in Order 1031 that if Lucchino had placed the scrap on the
Township road, there would not be an issue. That argument was addressed and
rejected in our adjudication for the reason that Lucchino chose not to do the job
himself on his own time but rather used himself and Township roadworkers and
equipment at Township expense to pick up the scrap metal on his property. There
was no legal error in our analysis.
The eighth argument by Lucchino is that he submitted the name of an individual
regarding previous scrap hauling to an Investigator in a sworn testimony but the
individual was never contacted to verify his claim. At the hearing in this matter,
Lucchino had the right and opportunity to call witnesses but he chose not to subpoena
this individual. The hearing record in this case is closed and Lucchino cannot complain
now as to his own failure to call a witness at that hearing. Since the argument
presents no basis for a material error of law or fact, we reject it.
Lucchino, in his ninth argument (labelled 8), asserts that he lost money by
donating scrap to the Township. Even if this statement were true, it is irrelevant since
the issue was the use of Township personnel and equipment for performing scrap pick
up on Lucchino's property during Township working hours. We reject the argument
as having no legal relevance.
In Lucchino's last argument, he asserts that he had no intent to conduct any
unlawful activity. The element of intent is not a necessary element for finding a
violation of Section 3(a) of Act 9 of 1989. ,egg, Yocabet v. State Ethics Commission,
531 A.2d 536 (1987). There was no material error of law.
No argument has been raised by the Lucchino which would meet the requisite
standard for reconsideration. No material error of law has been established. No
material error of fact has been established. No new facts or evidence have been
provided which would lead to reversal or modification of the Order. Lucchino has
failed to meet his burden of proof to establish any need for reconsideration. The
Petition for Reconsideration is denied.
In re: George M. Lucchino
File Docket: 95- 070 -C2
Date Decided: 2/20/97
Date Mailed: 3/7/97
RECONSIDERATION ORDER NO. 1031 -R
1. The Petition for Reconsideration of Lucchino, Order No. 1031, is denied.
BY THE COMMISSION,
0 GtLa4(J & 6141.
DANEEN E. REESE, CHAIR