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Home My WebLink About218 ComerotaMr. Peter J. Comerota c/o Sal Cognetti, Jr., Esq. Bour, Gallagher, Foley & Cognetti 310 Scranton Electric Building Scranton, PA 18503 Re: #82 -13 -C Dear Mr. Comerota: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF TI-1E COMMISSION January 6, 1984 Order No. 218 The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation. The individual allegations, conclusions, and findings on which those conclusions are based are as follows: I. Allegation: That you used your public office to conduct active legal practice during hours for which you were being paid by the Commonwealth; that such private practice may have conflicted with your Commonwealth responsibilities. A. Findings: 1. You served as an attorney with the Commonwealth and were assigned as an Assistant Counsel to the Scranton Regional Office, Office of the Chief Counsel, Real Property Division with the Pennsylvania Department of Transportation, PennDot. 2. As such you were a "public employee" subject to the provisions of the Ethics Act. 3. You resigned from this employment as of February 9, 1982. 4.a. Regulations published in the Pennsylvania Bulletin, Vol. 9, No. 19, dated May 12, 1979, required termination of all private practice by attorneys employed by the Commonwealth. b. A memorandum dated May 29, 1979, from Alexander V. Sarcione, Assistant Chief Counsel, Real Property Division, was addressed to "All Real Property Division Attorneys" and enclosed a copy of said regulations. Peter J. Comerota January 6, 1984 Page 2 5. Up through the time of your resignation (see No. 3 above) you engaged in the practice of law, serving private clients. The Bureau of Personnel, PennDot has on file a "Notification of After Hours Employment" (Form 343) relating to you filed in August, 1972, and approved by then Director of said Bureau, John Harhigh. This form lists self - employment with "After Hours" law practice at 602 Scranton Electric Building, Scranton, Pennsylvania. 6. You did not utilize staff, equipment, offices, supplies, etc. belonging to the Commonwealth or assigned to PennDot to conduct this practice of law (No. 5 above). 7. Investigators from PennDot conducted surveillance of your activities to determine if you left your PennDot offices during normal working hours of same as set forth in your Position Description (8:00 A.M. to 4:30 P.M.) to conduct business other than that required by your employment with PennDot. 8. During the course of this surveillance, your activities indicated that you did not always report to your assigned PennDot office at the designated time (8:00 A.M.); you did not remain there continually (excluding the normal lunch hour) until 4:30 P.M., nor did you always remain at said office until 4:30 P.M. a. However, these observations did not establish that you were or were not conducting private, ie. non - PennDot, business during periods you may have been out of your assigned PennDot office. b. While it has been established that you were not on approved sick, annual or personal leave during the periods observed as set forth above, there was insufficient evidence for any charge of "theft of services." B. Discussion: As a "public employee" you were subject to the requirements of the Ethics Act while you were employed by PennDot. As such you were subject to the requirements of Section 3(a) as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Peter J. Comerota January 6, 1984 Page 3 Based upon the above findings it has not been established that any violation of Section 3(a) existed. Because you have left your employment with Pennflot and because of the difficulty associated with ultimately determining the nature of the business you conducted while outside your assigned Pennflot office, i.e. public or private, and given the limited resources at our disposal to perform such an investigation, we will not pursue this matter further. C. Conclusion: Based upon this investigation, the above findings and discussion, we are unable to discern any violation of Section 3(a) of the Ethics Act and we will not because of the points in "Discussion" above pursue this particular matter further. II. Allegation: That you failed to report income from your private law practice on your Financial Interest Statement. A. Findings: Findings 1 -8 set forth above are incorporated herein by reference, in addition to which we find as follows: 9. On your Financial Interest Statement (FIS) for the calendar year 1979, dated April 25, 1980, you listed "Income from law practice - January 1st through June 30, 1979" as a "Direct or Indirect Source of Income." 10. On your Financial Interest Statement for the calendar year 1980, dated December 26, 1981 you listed only the "Transportation Dept, C/W of Pa" in the space provided for reporting of "Direct or Indirect Sources of Income." 11. In 1980 you had income in excess of $500 from clients you served in your private law practice, although you state no individual client paid fees producing a net income of $500 or more and you thought the Ethics Act required reporting only where one client paid fees which provided a net income of $500 or more. B. Discussion: The Ethics Act and regulations relating to reporting of sources of income and disclosure of individual clients as sources of income are listed below. Section 5. Statement of financial interests. (b)(3) Any direct or indirect interest in any real estate which was sold or leased to the Commonwealth, any of its agencies or political subdivisions; purchased or leased from the Commonwealth, any of its agencies or political subdivisions; or which was the subject of any condemnation proceedings by the Commonwealth, any of its agencies or political subdivisions. 65 PS. 405(b)(3). Peter J. Comerota January 6, 1984 Page 4 The Ethics Act, Section 2, defines "income" as follows: Section 2. Definitions. "Income." Any money or thing of value received, or to be received as a claim on future services, whether in the form of a fee, salary, expense, allowance, forbearance, forgiveness, interest, dividend, royalty, rent, capital gain or any other form of recompense or any combination thereof. 65 P. S. 402. The regulations promulgated under the Ethics Act further define "income" as follows: "Income" As defined in the act, but the term refers to gross income; prize winnings constitute income, not gifts; the term includes tax - exempt income; the term does not include social security; welfare; general assistance; domiciliary care programs; retirement, pension, and annuity payments funded totally by contributions of the public official /employee; unemployment compensation, including employer and union funded programs; worker's compensatinn; or miscellaneous, incidental income of minor dependent children from newspaper routes, babysitting, lawn - mowing and the like. 51 Pa. Code 1.1 Reporting by "professionals" including attorneys (See 51 Pa. Code 1.1 definition of "professional" is required, in addition to disclosing a general source of income in excess of $500, as to individual clients as follows: Professionals, whether acting as individuals or members of a business, are required to disclose as sources of income those persons who have paid fees for service related to matters before the governmental body with which the public official or public employe is or, if a candidate, would be associated. In all other cases only the name of their firm or business is to be listed. 51 Pa. Code 5.7(b). Peter J. Comerota January 6, 1984 Page 5 From the above it is clear that income reportable under the Ethics Act refers to gross income, not net income sources. It is also clear that the fact that one client did not generate net income of $500 or more merely eliminates the need to reveal that particular client (assuming the fees paid related to matters before PennDot and the individual client identity would be reportable even as a source of gross income). The requirement remains that the name of the firm or business is to be listed notwithstanding the fact that the identity of individual clients as sources of income may not be reportable. Thus, for the year 1980 and on your Financial Interest Statement dated and filed in 1981 you should have reported your income from private practice as a "Direct or indirect source of income." C. Conclusion: No further action is warranted if you amend your Financial Interest Statement within 15 days of this Order. Please forward the original of such amendment to us to insure compliance with this Order, supply a copy to PennDot and retain one copy for your records. Our files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is now final and will be made available as a public document in accordance with 51 Pa. Code 2.38(a). Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). By the Commission, PJS /jc Attachment aul J.(JSmith Chairman