Loading...
HomeMy WebLinkAbout569-R O'MalleyMr. James O'Malley c/o Carl Marcus 505 Court Place Pittsburgh, PA 15219 Re: 86 -034 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 RECONSIDERATION ORDER OF THE COMMISSION Order No. 569 -R DATE DECIDED: October 14, 1987 DATE MAILEU: October 20, 1987 Dear Mr. O'Malley: This refers to the request for Reconsideration presented on June 12, 1987, with respect to the above - captioned Order issued on June 2, 1987, pursuant to 51 Pa. Code 2.38. The discretion of the State Ethics Commission to grant reconsideration is properly invoked, pursuant to our regulations, 51 Pa. Code 2.38(b) when: (b) Any party may ask the Commission to reconsider an Order within 15 days of service of the Order. The person requesting reconsideration should present a detailed explanation setting forth the reason why the Order should be reconsidered. Reconsideration may be granted at the discretion of the Commission only where any of the following occur: (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 and where these could not be or were not discovered previously by the exercise of due diligence. The Commission, having reviewed your request, must DENY your request because none of thesa circumstances are present. In your letter of June 12, 1987, you alleged five errors in the Commission's preliminary order. It is noted that you did not refer to specific findings but merely raised these five objections in terms of broad generalities taking issue primarily with the discussion section of the order. The five general points which you raised will be considered seriatim. you assert that the order was in error because Mr. O'Malley did not secure his real estate license until July, 1985. Although it is true that the license was not released by the Real Estate Commission until Mr. O'Malley was sponsored by a broker which occurred in July, 1985, the crucial element was that Mr. O'Malley was employed by Oliver Realty, Incorporated as of May 1, 1985, a fact which you admit in your letter. Mr. James O'Malley Page 2 Secondly, concerning the matter of the use of public office by Councilman O'Malley relative to the URA approval of the Herr Island Project, it is asserted that Mr. Stampahar of Oliver Realty was not a representative of the developer but rather Mr. Progar was the representative of Howard Hanna Realty who did in fact represent said developer. The foregoing is not responsive to the issue since there was never any allegation that Oliver Realty, Incorporated, was representing the developer; the facts, the discussion and the order concern the use by Mr. O'Malley of his public office to influence the URA to approve the Herr's Island project. The third matter that you raise relates to the vote by Mr. O'Malley against recommittal. You state that the vote against recommittal was, in fact, a vote in favor of the Leehman's proposal which would authorize the city water department to lease office space from a certain real estate company. Although it is factually correct that Mr. O'Malley did vote against recommittal, it is noted that he subsequently cosponsored a request to Paul Evans, then Deputy Finance Director to solicit proposals from Oliver Realty, Incorporated; furthermore, Mr. O'Malley met with representatives of the Oliver Realty, Incorporated on this matter. Thus, there still remains a use of his public office by Mr. O'Malley on behalf of Oliver Realty, Inc. Parenthetically, since this Commission found that no financial gain was received by Mr. O'Malley and Oliver Realty relative to the matter of the City Public Safety Building, it is not necessary to address the "clarification" which is raised in your letter. The fourth claimed error concerns the matter of Oliver Realty relative to the sale of the Con -Agra property, which was formerly owned by the Armour Meat Packing Plant. It is asserted that Oliver Realty never represented Con -Agra and that Mr. O'Malley had no vote with the URA and that the city council had no involvement with the actions of URA. Although you admitted that Mr. O'Malley did have meetings with Lichtenstein, Brophy and Noland, it is claimed that these meetings did not constitute "working behind the scenes." You also stated that Oliver Realty never represented Con -Agra. Once again, the proffered objection does not squarely address the issue as to whether Mr. O'Malley used his position to aid Oliver Realty in becoming agent of record for selling this property. The evidence in this case amply establishes that Mr. O'Malley used his public office on behalf of Oliver Realty relative to the sale of the Con -Agra property. Lastly, it is contended that Mr. O'Malley did not use his positions in a way that would favor the Company with which he was associated, Oliver Realty, and further that Oliver Realty had no dealings with ALCOSAN. As this Commission previously stated in its original order, considering all the facts and circumstances of this case and the separate instances wherein Mr. O'Malley Mr. James O'Malley Page 3 exerted influence for the benefit of Oliver Realty, you have not presented any material error of fact or law which would justify reconsideration. Following acknowledgement of your June 12, 1987 letter, the Executive Director of Commission wrote you a letter dated August 4, 1987, wherein he confirmed that he had several prior telephone conversations with you wherein he attempted to elicit information from you in the nature of an answer to the findings of the Order which would narrow the scope of the facts and conclusions of law that were being contested. The Executive Director concluded his letter by directing that the information should be received by August 13, 1987. This Commission then received a letter dated August 18, 1987, which was received August 26, 1987, which did not provide the requested information nor the answer. Instead, the letter of August 18, 1987, merely set forth a generalized denial as to the five specific charges in allegation 1 of the original order. The letter basically set forth legal conclusions that Mr. O'Malley did not use his public office to receive anything of value or did not lobby or did not use any confidential information to the benefit of Oliver Realty. In short, the letter of August 18, 1987, constituted nothing more than a general denial of the five specific charges under allegation 1 in the original order. It did not supply any additional information nor did it supply the answer type pleading as was requested in the letter of August 4, 1987. Thereafter, staff of this Commission contacted you on several occasions requesting that the requisite answer type pleading be filed in this matter so that the contested issues and conclusions of law could be narrowed. By letter of September 11, 1987, staff of this Commission again requested the answer type pleading and set a ten day deadline for the filing of that answer. You neither responded to the letter of September 11, 1987, nor did you file the requisite answer type pleading. Thereafter, staff in a letter of September 24, 1987, reiterated the request for the answer type pleading and gave you a second deadline to file that answer within seven days of the date of that letter. You did respond to that second letter in an untimely fashion by supplying a document which was received by this Commission on October 5, 1987. Although that document purports to respond to the fact findings on a paragraph by paragraph basis, it cannot be considered an answer type pleading by any stretch of the imagination. Although the document does admit or deny certain fact findings, it contains over 70 responses, or perhaps non - responses, which state that you "cannot confirm or deny." Further, a comparison of the "Answer" with the numbered findings of the original Order reflects that is was not even made as part of a good faith effort since the expression "cannot confirm or deny" is used in instances where Mr. O'Malley did have personal knowledge as to the fact findings. Mr. -James O'Malley Page 4 When the foregoing document is reviewed in conjunction with the two prior letters, it is the view of this Commission that the content of these three documents, relative to your request for a reconsideration, would in no way change the order for two reasons: first, the minor factual errors in the original order were not material to the Commission's decision in finding a violation of the Ethics Act and secondly, the points which you raise in your two letters amount to nothing more than a challenge as to the legal conclusion in applying the Ethics Act to the facts in this case. Based upon this, there is no basis for this Commission to modify its original order. In light of the foregoing, the State Ethics Commission concludes that your request for reconsideration must be DENIED. That Order, a copy of which is attached hereto and this decision denying reconsideration, shall be made available as public documents five business days after the date of mailing of this Order. By the Commission, G. Sieber Pancoast Chairman