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HomeMy WebLinkAbout1092 DEmidioIn Re: Carl D'Emidio STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 97- 073 -C2 X -ref: Order No. 1092 Date Decided: 9/24/98 Date Mailed: 9/30/98 Before: Daneen E. Reese, Chair Allan M. Kluger Julius Uehlein Louis W. Fryman This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 g aeg., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was not timely filed and a hearing was deemed waived. The record is complete. This adjudication of the State Ethics Commission 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 Act 9 of 1989, 65 P.S. §408(h). Any person who violates confidentiality of the Ethics Law is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year, 65 P.S. §409(e). Confidentiality does not preclude discussing this case with an attorney at law. D'Emidio, 97- 073 -C2 September 24, 1998 Page 2 1. ALLEGATION: That Carl D'Emidio, a public official /public employee, in his capacity as a council member for Bristol Borough, Bucks County, violated Section 4(a) of the State Ethics Act (Act 9 of 1989) when he failed to file a Statement of Financial Interests with the governing authority of the political subdivision by which he is employed or within which he is appointed no later than May 1st of each year that he holds such a position by failing to file Statements of Financial Interests for the 1995 calendar year; and when he back -dated a Statement of Financial Interests for the 1995 calendar year. II. FINDINGS: 1. The Investigative Division of the State Ethics Commission received information alleging that Carl D'Emidio violated provisions of the State Ethics Act (Act 9 of 1989). 2. Upon review of the information, an own - motion preliminary inquiry was authorized. 3. At the direction of the Executive Director, the Investigative Division initiated a preliminary inquiry on December 12, 1997. 4. The preliminary inquiry was completed within sixty days. 5. On February 10, 1998, a letter was forwarded to Carl D'Emidio, by the Executive Director of the State Ethics Commission informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, no. P487 031 963. b. The domestic return receipt bore the signature of Carl D'Emidio, with a delivery date of February 12, 1998. 6. The full investigation was commenced at the direction of the Executive Director of the State Ethics Commission. 7. Periodic notice letters were forwarded to Carl D'Emidio in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 8. The Investigative Complaint was mailed to the Respondent on August 3, 1998. 9. Carl D'Emidio has been a Bristol Borough Council Member since January, 1996. 10. Statements of Financial Interests compliance reviews were conducted in Bristol Borough on September 5, 1997, and December 19, 1997, for calendar years 1992 through 1996. a. Borough officials including Carl D'Emidio were identified as filing Statements of Financial Interests. 11. The Statement of Financial Interests filed by D'Emidio for the 1995 calendar year listed his signature and the date when he filed the form. D'Emidio, 97- 073 -C2 September 24, 1998 Page 3 a. The Statement of Financial Interests for calendar year 1995 was dated March 20, 1996. 12. D'Emidio filed the Statement of Financial Interests for the 1995 calendar year on SEC Revised Form 1/97. SEC Revised Form 1/97 was not available for distribution until January, 1997. 13. D'Emidio filed the Statement of Financial Interests for calendar year 1995 sometime after January, 1997. 14. D'Emidio did not file a Statement of Financial Interests for the 1995 calendar year with the borough by May 1, 1996. 15. D'Emidio filed the Statement of Financial Interests after being contacted by Bristol Borough Secretary Marie Fields. a. Fields contacted borough officials in August 1997 following a review of the forms by a reporter which disclosed forms were not on file. a. 16. The Statement of Financial Interests filed by D'Emidio for calendar year 1995 with Bristol Borough was backdated giving the impression that it . was filed timely. 17. D'Emidio admitted the Statement of Financial Interests for calendar year 1995 was not filed with Bristol Borough on the date listed on the form. 18. D'Emidio arbitrarily picked out a date for the Statement of Financial Interests he filed for calendar year 1995, so as to reflect the accuracy of the information as of that date. 19. D'Emidio filed Statements of Financial Interests with the borough as follows: Calendar Years 1997 1996 Date Filed 03/03/98 04/05/97 III. DISCUSSION: Initially, we must consider a procedural issue that has arisen regarding the receipt of an Answer to the Investigative Complaint. The pleading stage in this case began with the issuance of the Investigative Complaint on August 3, 1998. On its face, the Investigative Complaint stated that an Answer had to be received at this Commission within thirty (30) days of issuance and that the Respondent should take that document immediately to an attorney. In this case, an Answer was received on September 4, 1998 which was thirty -two (32) days after the issuance of the Investigative Complaint. It is clear under the Ethics Law and Regulations that a response to the Investigative Complaint must be received within 30 days. 65 P.S. §408(e); 51 Pa.Code §21.5(k). As noted above, even the face sheet of the Investigative Complaint D'Emidio, 97- 073 -C2 September 24, 1998 Page 4 states that an Answer must be received within 30 days. The Answer in this case was received two days late. In order for a late answer to be deemed timely filed, we apply the same standard as is applied by the courts to untimely appeals (see, Getz v. Pennsylvania Game Commission, 475 A.2d 1369 (Pa. Commw. Ct. 1984) applying that standard in administrative proceedings to an untimely request for a hearing). The standard is that to accept the untimely filing as if it were timely, there must either have been fraud or a breakdown in the administrative process, see, West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975); Bianco v. Robinson Twp., 556 A.2d 993 (Pa. Commw. Ct. 1989), which includes the postal process (Getz v. Pennsylvania Game Commission, 475 A.2d 1369 (1984)), or there must have been unique and compelling factual circumstances establishing non - negligent failure to file timely, Grimaud v. Dep't of Env. Resources, 638 A.2d 299 (Pa. Commw. Ct. 1994); Bass v. Com., 485 Pa. 256, 401 A.2d 1133 (1979). None of the conditions for allowing the filing of a late Answer is present in this case. In fact, there has not even been any allegation of fraud, any breakdown in the administrative process or the mail delivery system, or any unique and compelling factual circumstances that would establish a non - negligent failure to timely file. Baxter, Order No. 985. Parenthetically, we note that our Regulations allow for the filing of an application for an extension to file an Answer. 51 Pa.Code §21.5(k). No such request was made in this case prior to the filing deadline. Therefore, the averments in the Investigative Complaint are deemed admitted and as such are now the Findings in this Order. At all times relevant to this matter, the Respondent, Carl D'Emidio, hereinafter D'Emidio, has been a public official /employee subject to the provisions of the Public Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, a #. The allegation is that D'Emidio, as a council member for Bristol Borough, Bucks County, violated Section 4(a) of the Ethics Law, Act 9 of 1989, by back - dating and failing to timely file a Statement of Financial Interests (SFI) for the calendar year 1995. Section 4. Statement of financial interests required to be filed (a) Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is D'Emidio, 97- 073 -C2 September 24, 1998 Page 5 appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part-time solicitors for political subdivisions are required to file under this section. 65 P.S. §404(a). Section 4(a) of the Ethics Law quoted above requires that each public official /public employee must file SFI's with the governing authority of the political subdivision no later than May 1 of each year that he /she holds such position and of the year after he /she leaves such position. Having noted the issues and applicable law, we shall now summarize the relevant facts. D'Emidio has served as a Bristol Borough Council Member since January, 1996. When SFI compliance reviews were conducted in Bristol Borough, various Borough officials, including D'Emidio, were identified as SFI filers. The 1995 calendar year SFI filed by D'Emidio included his signature and ostensibly the date when he filed the form, that is, March 20, 1996. D'Emidio filed the 1995 calendar year SFI on a State Ethics Commission form which was not available for distribution until January, 1997. The SFI filed by D'Emidio for 1995 was not filed . by May 1 of 1996, but was in fact filed after January, 1997. D'Emidio filed the SFI after being contacted by the Bristol Borough Secretary, Mary Fields. Borough officials were contacted by Fields after a review of SFI's by a reporter confirmed that the forms were not on file. The SFI filed by D'Emidio for Bristol Borough was back -dated so as to give the impression that the form was timely filed. D'Emidio admitted that the SFI was not filed with Bristol Borough on the date listed on the form. The date listed by D'Emidio was arbitrarily chosen. Having summarized the above relevant facts, we must now determine whether the actions of D'Emidio violated Section 4(a) of Act 9 of 1989. As noted above, Section 4(a) of the Ethics Law specifically requires that a public official file an SFI with the governing authority of the political subdivision no later than May 1 of each year in which he /she holds such position and the year after he /she leaves such position. The record in this case conclusively establishes that the 1995 calendar year SFI filed by D'Emidio was filed after the May 1, 1996 deadline. Accordingly, a violation of the Ethics Law occurred when D'Emidio failed to timely file a '1995 calendar year SFI as required by the Ethics Law. D'Emidio is reminded that public office is a public trust and that as part of his duties as a public official, he is required to comply with the SFI filing requirement imposed by the Ethics Law. The record also contains proof that D'Emidio back -dated the SFI in question. That fact is established because the forms were not yet distributed by this Commission on the date D'Emidio used. In fact, D'Emidio has admitted that he did not file the form with Bristol Township on the date listed on the form. D'Emidio merely chose an arbitrary date so as to give the appearance of a timely filing. Such action by D'Emidio warrants a referral to an appropriate law enforcement authority as to the issue of unsworn falsification. See, DiPaolo, Orders 058 -S, 058 -S -R. Accordingly, this matter will be referred to the appropriate law enforcement authority for review and appropriate action. D'Emidio, 97- 073 -C2 September 24, 1998 Page 6 Finally, D'Emidio is directed within 30 days of the mailing date of this Order to file an amended 1995 SFI with Bristol Township, with one copy forwarded to this Commission for compliance verification. The SFI must contain an accurate current filing date together with the appropriate financial information for the 1995 calendar year. Noncompliance with the foregoing will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. D'Emidio, as a Council Member for Bristol Borough, Bucks County, is a public official subject to the provisions of Act 9 of 1989. 2. D'Emidio violated Section 4(a) of the Ethics Law when he back -dated and failed to timely file a Statement of Financial Interests (SFI) for the calendar year 1995. In Re: Carl D'Emidio ORDER NO. 1092 File Docket: 97- 073 -C2 Date Decided: 9/24/98 Date Mailed: 9/30/98 1. D'Emidio, as a Council Member for Bristol Borough, Bucks County, violated Section 4(a) of the Ethics Law when he back -dated and failed to timely file a Statement of Financial Interests (SFI) for the calendar year 1995. 2. D'Emidio is directed within 30 days of the mailing date of this Order to file an amended SFI for the 1995 calendar year with Bristol Township, with one copy forwarded to this Commission for compliance verification. The SFI must contain an accurate current filing date, together with the appropriate financial information for the 1995 calendar year. Noncompliance with the foregoing will result in the institution of an order enforcement action. 3. This matter will be referred to the appropriate law enforcement authority for review and appropriate action on the issue of unsworn falsification. BY THE COMMISSION, DANEEN E. REESE, CHAIR