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HomeMy WebLinkAbout1829 CapobiancoPHONE: 7'17-783-16'10 STATE E,THICS COMMISSION TOLL FREE: 1-800-932-0936 FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 In Re: Doniinic Capobianco, File Docket: 22-0146-C Respondent Order No. 1829 Date Decided: 1/11/24 Date Mailed: 1/12/24 Before: Michael A. Schwartz, Chair Paul E. Parsells David L Reddecliff Robert P. Caruso Emilia McKee Vassallo Thomas E. Leipold This is a final adjudication of the State Ethics Commission. FACSIMILE: 717-787-0806 WEBSITE: www.eth1cs.p@,gpv Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding possible violation(s) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et se-q., by the above -named Respondent. At the cornmencernent of its investigation, the Investigative Division served upon Respondent written notice of the specific allegations. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." A Stipulation of Findings and a Consent Agreement were subsequently submitted by the parties to the State Ethics Commission ("Commission") for consideration, The Stipulated Findings are set forth as the Findings in this Order. The Consent Agreement has been approved. I. ALLEGATIONS: That Dominic Capobianco, a public official as a Member of Parkside Borough ("Borough") Council and a public employee as Code Enforcement Officer for the Borough, violated Sections I I 03(a), I 103(f), I I 04(a), I I 04(d), 1105(a), 11 05(b)(1), and 11 05(b)(2) of the Ethics Act: (1) When lie participated in discussions and actions of Borough Council to hire and pay a business with which he is associated, Capo's Handyman Services, to disinfect Borough offices, resulting in a private pecuniary benefit to himself and/'or a business with which he is associated; (2) When he, through a business with which he is associated, Capo's Handyman Services, entered into an agreement/arrangement valued at $500.00 or more with the Borough without an open and public process including prior public notice and subsequent public disclosure; Capobianco, 22-0146-C Page 2 (3) When he failed to file a Statement of Financial Interests ("SFI") for calendar year 2021 and subsequently received compensation from the Borough; (4) When he filed a deficient SFI for calendar year 2017 when he failed to list the Borough as his governmental entity and when he failed to list his public position as Borough Code Enforcement Officer; (5) When he filed a deficient SFI for calendar year 2019 when he failed to list his occupation or profession; (6) When he filed a deficient SFI for calendar year 2019 when he failed to list his public position as Borough Code Enforcement Officer; (7) When he filed a deficient SFI for calendar year 2020 when he failed to list his public position as Borough Code Enforcement Officer; and (8) When he filed a deficient SFI for calendar year 2022 when he failed to list his public position as Borough Code Enforcement Officer. 11. FINDINGS: I. Dominic Capobianco ("Capobianco") served as a Member of Council for Parkside Borough ("Borough") from September 25, 2013, to December 2021. 2. For his service on Borough Council, Capobianco received $1,875.00 per year for calendar years 2018 through 2021. 3. In addition to serving on Borough Council, Capobianco was employed as the Borough Code Enforcement Officer. a. Capobianco served as Borough Code Enforcement Officer from April 2016 until August 3, 2023. 1. Capobianco was budgeted to receive the following salary, approved by Borough Council as part of the annual budget, each year as follows: 2018 - $18,025.00 2019 - $18,563.00 2020 - $19,120.00 2021 - $19,665.00 2022 - $20,255.00 2023 - $19,665.00 b. Capobianco also received additional compensation from completing annual Use and Occupancy and Rental License inspections. Capobianco, 22-0146-C Page 3 4. The Borough is governed by a seven -Member Council and a Mayor. 5. Borough Council meetings are held on the third Wednesday of each month. a. Special meetings are held when necessary. b. Voting at Borough Council meetings occurs after a motion is made and properly seconded, with those in favor stating "Aye" and those opposed stating "No." a. Objections and abstentions are noted in the meeting minutes. 7. The Borough Secretary is responsible for attending each monthly Borough Council meeting and taking notes to record discussions, official actions, and public comment. a. The Borough Secretary uses the notes to complete meeting minutes following each meeting. b. The purpose of meeting minutes is to memorialize Borough Council actions, including votes and public discussions. C. Each Borough Council Member is provided a copy of the meeting minutes to review for accuracy prior to the following month's meeting. d. Each Borough Council Member is provided the opportunity to amend the previous month's meeting minutes prior to an official vote. e. Borough Council votes to approve the accuracy of the previous month's meeting minutes at each subsequent meeting. 8. All Borough Council meetings are video recorded and posted on the Borough's YouTube.com channel, htt.ps://www.youtube..com/@parksideboroughpa/featured. a. The Borough has recorded public meetings since 2020. THE FOLLOWING FINDINGS PERTAIN TO BOROUGH COUNCIL'S PROCESS FOR APPROVING INVOICES AND MAKING PAYMENTS DURING THE 2021 CALENDAR YEAR. 9. During the 2021 calendar year, the Borough followed the following process with regard to the approval of invoices. a. All invoices were received by Borough Secretary Linda Higgins ("Higgins"). b. Higgins approved the monthly invoices and placed the invoices in a blue folder for Borough Treasurer Joseph Possenti ("Possenti"). Capobianco, 22-0146-C Page 4 C. Possenti physically picked up the blue folder that contained the monthly invoices from Higgins. d. Possenti reviewed the invoices and issued Sharon Bank checks to pay the invoices. 1. Sharon Bank is used by the Borough for the Borough General Fund. 2. A check was routinely issued to the company noted on the invoice. e. Each check issued by the Borough requires two physical signatures. 1. Higgins, Possenti, Borough Council President Shirley Purcival, and Borough Council Vice President Doug Bull had check signing authority. f. Possenti listed each check issued and deposited items on a monthly bills and deposit list. 1. Possenti provided each Member of Borough Council a copy prior to the monthly meeting to review. g. An official vote was taken by Borough Council at each monthly meeting to approve the payment of bills for the month. THE FOLLOWING FINDINGS RELATE TO BOROUGH COUNCIL'S PROCESS TO APPROVE REIMBURSEMENT TO BOROUGH OFFICIALS DURING THE 2021 CALENDAR YEAR. 10. The Borough provided reimbursement to Borough officials for the purchase of items for community events and other miscellaneous purchases for the Borough. 11. To receive a reimbursement payment, the Borough official must provide documentation or receipts to be reimbursed. 12. Higgins provided copies of receipts to Possenti to process a reimbursement payment. a. Possenti issued a check for reimbursement after receiving receipts and proper documentation from Higgins. 13. Reimbursement payments were included on the monthly bills and deposit list that was provided to each Borough Council Member. THE FOLLOWING FINDINGS PERTAIN TO CAPOBIANCO'S USES OF OFFICE REGARDING PERFORMING COVID-19 CLEANING SERVICES FOR THE BOROUGH. Capobianco, 22-0146-C Page 5 14. During the March 25, 2020, Borough Council meeting, there was discussion regarding hiring the same "vendor" that provided COVID-19 cleaning for the Borough firehouse to clean the Borough building. a. The name of the vendor was not listed in the meeting minutes. b. Borough Council agreed to hire a cleaning vendor to clean the Borough building at a cost not to exceed $550.00 per cleaning. 15. Meeting minutes and YouTube.com video footage of Borough Council meetings between December 2020 and .tune 2021 show that Capobianco informed Borough Council and the public that he had been performing the COVID-19 cleaning at the Borough building and the Borough police station and for two Borough police cars twice a week, saving the Borough and the residents money by not charging for his services. a. At no time did Capobianco inform Borough Council or the public that he charged or was going to charge the Borough a fee for his services. b. Capobianco stated that he was performing COVID-19 cleaning for the Borough voluntarily. 16. In December 2020, Capobianco submitted a reimbursement request and receipt for a Ryobi One + FoggerlMister with an 18 volt lithium battery and charger in the amount of $141.99. a. Capobianco purchased the mister to sanitize the Borough building, the Borough police station, and two Borough police vehicles. b. Capobianco purchased the mister at the same time he informed Borough Council that he began to voluntarily clean the Borough building. 17. Between December 2020 and July 2021, Capobianco sanitized the Borough building, the Borough police station, and two Borough police vehicles at a minimum of twice a week. a. The Borough building consists of a small administrative office area, Borough Council meeting chambers, and one small police station. 18. During the June 23, 2021, Borough Council meeting, Higgins read correspondence from Pennsylvania Governor Torn Wolf concerning federal funds that would be allocated to the Borough from the American Rescue Plan Act. a. The Borough was entitled to receive $243,879.26 from the American Rescue Plan Act. b. The June 23, 2021, Borough Council meeting minutes reflect the following: "A letter from Governor Tom Wolf was read. The letter informed Parkside Borough that they are entitled up to $243,879.26 from the federal funding under the American Rescue Plan Act of 2021. These funds must be applied for within 5 days Capobianco, 22-0146-C Page 6 of the announcement. The proper paperwork has been completed and submitted within the allotted time. These funds can only be used for certain eligible projects. Half of the money will be received in 2021 and the second half is to be distributed in 2022." C. Capobianco was present for the June 23, 2021, meeting. 19. The American Rescue Plan Act, also called the COVID-19 Stimulus Package, was a $1.9 trillion economic stimulus bill passed by the United States Congress and signed into law by President Joe Biden on March 11, 2021. a. The purpose of the American Rescue Plan Act was to speed up the country's recovery from the economic and health impacts of the COVID-19 pandemic. b. A total of $195 billion was allocated from the American Rescue Plan Act to provide aid to states and local government to bridge budget shortfalls. G. The Commonwealth of Pennsylvania was allocated $6.15 billion in federal dollars under the American Rescue Plan Act for counties, metropolitan cities, and local government units to support COVID-19 response efforts, replace lost revenue, support economic stabilization for households and businesses, and address systemic public health and economic challenges. d. Recipients were permitted to use the funds to support public health expenditures, funding for COVID-19 mitigation efforts, medical expenses, behavioral healthcare, certain public health and safety staff, address negative economic impacts caused by the public health emergency, including economic harm to workers, households, small businesses, impacted industries, and the public sector; replace lost public sector revenue, funding to provide government services to the extent of the reduction in revenue experienced due to the pandemic; provide premium pay for essential workers, offering additional support to those who have and will bear the greatest health risks because of their service in critical infrastructure sectors, and to invest in water, sewer, and broadband infrastructure, to improve access to clean drinking water, support vital wastewater and storm -water infrastructure, and to expand access to broadband internet, 20. After learning about federal funding that the Borough was entitled to receive under the American Rescue Plan Act, Capobianco submitted invoices to Higgins for the COVID-19 cleaning services he provided to the Borough from December 2020 through July 2021. a. Capobianco submitted invoices to Higgins titled "Capo's Handyman Services." b. The billing and service address listed on each invoice was 22 East Elbon Road, Parkside, PA 19015, which is the address of the Parkside Borough Municipal Building. C. Capobianco asserts the following; Capobianco, 22-0146-C Page 7 1. Capobianco submitted receipts for supplies he purchased and used to provide cleaning services to the Borough. a. Neither the Borough nor Capobianco have been able to produce these receipts. 2. The invoices also stated, "Serving Delaware County," which Capobianco included as a play on words to reflect his role as a Borough Council Member. 3. Although the invoices stated, "Capo's Handyman Services," Capobianco intended and believed the Borough understood that the invoices were for direct reimbursement to him in his individual capacity. d. The combined total of the invoices was $7,941.99. e. The description of services listed on each invoice was Disinfectant Cleaning 1.0 $750.00 and 2 Police Vehicles Disinfectant Cleaning 1.0 $225.00. f. The cost for services provided by Capobianco was $975.00 on each invoice. g. None of the invoices submitted by Capobianco included costs for materials or supplies including the amount of chemicals used. 21. Capobianco included "Technician Notes" with the invoices he provided to Higgins from December 2020 through July 2 02 1. a. The "Technician Notes" Capobianco provided detail, "Disinfecting services, Treated Borough offices and office area, lobby, kitchen, council chambers all desks, chairs, and equipment, all doors and light switches. Treated hall, bathrooms and storage room in hall area. Treated police department area, offices, kitchen, locker room, bathrooms, holding cell, desk area, chairs, all doors, and light switches. Treated 2 police cars with Terg-O-Cide, Fan sprayed interiors, service equipment, computer, radios, etc. Wiped down when down and cleaned all windows." b. Capobianco included "Material" with his "Technician Notes" with the invoices provided to Higgins that included, "FORMULA 236.... Terg-O-Cide Didecyl Dimethyl Ammonium Chloride ...... 2.54% Alky (50% C14, 40% C1210% C16) Dimethyl Benzyl Ammonium Chloride... 1.69% Other Ingredients ...... 95.77% Total ..............100%." C. Capobianco failed to list how much cleaning chemical he used, where it was purchased, and the cost of the "Material." Capobianco, 22-0146-C Page 8 22. The only invoice that included equipment Capobianco purchased to perform cleaning services was his purchase of a Ryobi Fogger/Mister Ryobi ONE+ 18 Volt Lithium -Ion Cordless with 2.0 Ah better and Charger in the amount of $141.99. 23. A search through the Pennsylvania Department of State Bureau of Corporations and Charitable Organizations found "Capo's Handyman Services" is not a registered company. 24. After receiving the invoices from Capobianco, Higgins sent them to Possenti to issue a check for payment. a. Possenti issued the payment based on the Capo's Handyman Services invoices he received from Higgins. 25. On July 15, 2021, Possenti issued Parkside Borough Sharon Bank Check No. 3375 in the amount of $7,941.99 to "Nick Capobianco." a. Possenti did not issue the check to "Capo's Handyman Services." b. The check memo included, "Nick Capobianco" and "Reimbursement- Covi d Cleaning" [along with an address]. 1. The address [listed on the check memo] is Capobianco's personal residence. C. Check No. 3375 payable to Capobianco was signed by Higgins and Possenti. 26. The amount of $7,941.99 was the exact amount invoiced by Capobianco. 27. Possenti included Check No. 3375 in the amount of $7,941.99, payable to "Nick Capobianco," on the July 28, 2021, Sharon Bank Monthly Bills and Deposit List. a. The July 28, 2021, monthly bills and deposit list was provided to every Member of Borough Council, including Capobianco. 28. Meeting minutes and YouTube.com video footage reflect that during the July 28, 2021, Borough Council meeting, Capobianco seconded the motion to approve the July 2021 bills which included the $7,94199 payment to him for the COVID-19 cleaning. a. Meeting minutes for the July 28, 2021, Borough Council meeting detail the following: "Finance Report: (Doug Bull) Vice President Bull made a motion, seconded by Councilman Capobianco, to accept the Treasurer's Report as submitted; motion carried. Vice President Bull made a motion, seconded by Councilman Capobianco, to pay the bills when properly approved; motion carried." b. Capobianco failed to abstain or announce that he had a conflict of interest at the time of the vote to approve the bill list that included the $7,941.99 payment to him. Capobianco, 22-0146-C Page 9 C. Capobianco asserts the following: I . Capobianco was not aware that failing to abstain or announce that the bills included a payment to him at the time of the vote was improper. 29. Capobianco acknowledges that he received and deposited Parkside Borough Sharon Bank Check No. 3375 in the amount of $7,941.99. 30. Capobianco's WSFS accounts do not display any purchases of cleaning supplies from any retailer or wholesaler. 31. A review of another account to which Capobianco has access revealed no purchase of materials or cleaning supplies in the amount contained on the invoices which Capobianco submitted to the Borough. a. Capobianco asserts that he paid for the cleaning supplies with cash on hand from his emergency savings fund. THE FOLLOWING FINDINGS PERTAIN TO CAPOBIANCO'S FAILURE TO FILE A STATEMENT OF FINANCIAL INTERESTS FOR CALENDAR YEAR 2021 AND HIS FILING OF DEFICIENT STATEMENTS OF FINANCIAL INTERESTS FOR CALENDAR YEARS 2017, 2018, 2019, 2020, AND 2022. 32. In his capacities as a Borough Council Member and the Borough Code Enforcement Officer, Capobianco was required to annually file a Statement of Financial Interests by May I" of each year. 33. Capobianco's Statements of Financial Interests on file at the Borough contain the following deficiencies: a. Failure to list the Borough as his governmental entity on his calendar year 2017 form. b. Failure to list his occupation or profession on his calendar year 2018 form. C. Failure to list his public position as Borough Code Enforcement Officer on his forms for calendar years 2017, 2019, 2020, and 2022. 34. Capobianco's Statement of Financial Interests for calendar year 2021 is not on file at the Borough. III. DISCUSSION: As a Member of Council for Parkside Borough ("Borough") from September 25, 2013, to December 2021, Respondent Dominic Capobianco ("Capobianco") was a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 Capobianco, 22-0146-C Page 10 et sew As the Borough Code Enforcement Officer from April 2016 until August 3, 2023, Capobianco was a public official/public employee subject to the provisions of the Ethics Act. The allegations are that Capobianco violated Sections 1103(a), 1103(f), 1104(a), 1104(d), 1105(a), 1105(b)(1), and 1105(b)(2) of the Ethics Act: (1) When he participated in discussions and actions of Borough Council to hire and pay a business with which he is associated, Capo's Handyman Services, to disinfect Borough offices, resulting in a private pecuniary benefit to himself and/or a business with which he is associated; (2) When he, through a business with which he is associated, Capo's Handyman Services, entered into an agreement/arrangement valued at $500.00 or more with the Borough without an open and public process including prior public notice and subsequent public disclosure; (3) When he failed to file a Statement of Financial Interests ("SFI") for calendar year 2021 and subsequently received compensation from the Borough; (4) When he filed a deficient SFI for calendar year 2017 when he failed to list the Borough as his governmental entity and when he failed to list his public position as Borough Code Enforcement Officer; (5) When he filed a deficient SFI for calendar year 2018 when he failed to list his occupation or profession; (6) When he filed a deficient SFI for calendar year 2019 when he failed to list his public position as Borough Code Enforcement Officer; (7) When he filed a deficient SFI for calendar year 2020 when he failed to list his public position as Borough Code Enforcement Officer; and (8) When he filed a deficient SFI for calendar year 2022 when he failed to list his public position as Borough Code Enforcement Officer. Per the Consent Agreement, the Investigative Division has exercised its prosecutorial discretion to nolle pros the allegations pertaining to Sections 1103(f) and 1104(d) of the Ethics Act as well as the allegations pertaining to deficiencies in Capobianco's SFIs for calendar years 2017, 2018, 2019, 2020, and 2022. We therefore need not address those allegations. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities (a) Conflict of interest. —No public official or public employee shall engage in conduct that constitutes a conflict of Capobianco, 22-0146-C Page 11 interest. 65 Pa.C.S. § 1103(a). The following terms relevant to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary (financial) benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1104(a) of the Ethics Act provides that each public official/public employee must file an SFI for the preceding calendar year, by May 1 of each year that he holds the position and the year after he leaves it. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are set forth above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. CaCa oobia lco, 22-0146-C Page 12 The Borough is governed by a seven -Member Council and a Mayor. Capobianco served as a Member of Borough Council from September 25, 2013, to December 2021. In addition to serving on Borough Council, Capobianco served as the Borough Code Enforcement Officer from April 2016 until August 3, 2023. Capobianco received compensation from the Borough for his service as a Borough Council Member and as the Borough Code Enforcement Officer. During the March 25, 2020, Borough Council meeting, there was discussion with regard to hiring the same "vendor" that provided COVID-19 cleaning for the Borough firehouse to clean the Borough building. The name of the vendor was not listed in the meeting minutes. Borough Council agreed to hire a vendor to clean the Borough building at a cost not to exceed $550.00 per cleaning. In December 2020, Capobianco informed Borough Council that he had started voluntarily cleaning the Borough building. Capobianco purchased a Ryobi One + Fogger/Mister with an 18 volt lithium battery and charger at the cost of $141.99 in order to sanitize the Borough building, the Borough police station, and two Borough police vehicles. Between December 2020 and July 2021, Capobianco sanitized the Borough building, the Borough police station, and two Borough police vehicles at least twice a week. Borough Council meeting minutes and YouTube.com video footage of Borough Council meetings between December 2020 and June 2021 reflect that Capobianco informed Borough Council and the public that he had been performing COVID-19 cleaning at the Borough building and the Borough police station and for two Borough police vehicles twice a week, saving the Borough and the residents money by not charging for his services. At no time did Capobianco inform Borough Council or the public that he charged or was going to charge the Borough a fee for his services. During the June 23, 2021, Borough Council meeting, Borough Secretary Linda Higgins ("Higgins") read correspondence from Pennsylvania Governor Tom Wolf which informed the Borough that it was entitled to receive up to $243,879.26 in federal funding under the American Rescue Plan Act of 2021. The purpose of the American Rescue Plan Act was to speed up the country's recovery from the economic and health impacts of the COVID-19 pandemic by, inter alia, providing aid to states and local governments to support public health expenditures and fiend COVID-19 mitigation efforts. Capobianco was present for the June 23, 2021, meeting of Borough Council. After Capobianco learned about the federal funding that the Borough was entitled to receive under the American Rescue Plan Act, he submitted invoices to Higgins for the COVID-19 cleaning services which he had provided to the Borough from December 2020 through July 2021. The invoices were submitted under the name "Capo's Handyman Services." The combined total of the invoices was $7,941.99. Each invoice included a cost of $975.00 and listed the services provided as "Disinfectant Cleaning 1.0 $750.00" and "2 Police Vehicles Disinfectant Cleaning 1.0 $225.00." None of the invoices included costs for materials or supplies. One invoice included a charge of $141.99 for the Ryobi One + Fogger/Mister which Capobianco purchased to sanitize the Borough building, the Borough police station, and the Borough police vehicles. No entity named "Capo's Handyman Services" is registered with the Pennsylvania Department of State. Although Capobianco, 22-0146-C Page 13 the invoices were titled "Capo's Handyman Services," Capobianco believed that it would be understood that the invoices were for direct reimbursement to him in his individual capacity. Higgins sent the invoices she received from Capobianco to Borough Treasurer Joseph Possenti ("Possenti") for payment. On July 15, 2021, Possenti issued Borough General Fund Check No. 3375 in the amount of $7,941.99, payable to "Nick Capobianco." Possenti included Check No. 3375 on the July 28, 2021, monthly bills and deposit list provided to Borough Council. During the July 28, 2021, meeting of Borough Council, Capobianco seconded a motion to approve the monthly bills and deposit list which included the $7,941.99 payment to him for his COVID-19 cleaning services. Capobianco failed to abstain when Borough Council voted to approve the monthly bills and deposit list which included the payment to him. As a Borough Council Member and as the Borough Code Enforcement Officer, Capobianco was annually required to file an SFI by May 1 containing information for the prior calendar year, Capobianco's SFI for calendar year 2021 is not on file with the Borough. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations as follows: 3. The Investigative Division will recommend the following in relation to the above allegations: a. That a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Capobianco participated in .discussions and actions of Borough Council to hire and pay a business with which he is associated, Capo's Handyman Services, to disinfect Borough offices, resulting in a private pecuniary benefit to himself and/or a business with which he is associated; b. That a violation of Section 1104(a) of the Public Official and Employee Ethics Act, 65 Pa.C,S. § 1104(a), occurred when Capobianco failed to file a Statement of Financial Interests for calendar year 2021 and subsequently received compensation from the Borough; and C. That the remaining allegations be nolle prossed. 4. Capobianco agrees to make payment in the amount of $4,000.00 in settlement of this matter payable to Parkside Borough and forwarded to the Pennsylvania State Ethics Commission within Capobianco, 22-0146-C Page 14 thirty (30) days of the issuance of the final adjudication in this matter. a. As part of this agreement, Capobianco is not required to disgorge his public compensation received pursuant to Section 1104(d) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1104(d), when he did not file his Statement of Financial Interests. 5. To the extent he has not already done so, Capobianco agrees to file a complete and accurate Statement of Financial Interests for calendar year 2021 along with complete and accurate amended Statements of Financial Interests with Parkside Borough, through the Pennsylvania State Ethics Commission, for calendar years 2017, 2018, 2019, 2020, and 2022 within thirty (30) days of the issuance of the final adjudication in this matter. 6. Capobianco agrees to not accept any reimbursement, compensation or other payment from Parkside Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. 7. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Capobianco's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. a. Capobianco has been advised that as a matter of course, all orders from the Commission are provided to the Attorney General, albeit without any specific recommendations pursuant to paragraph 7 above. b. Capobianco has been advised that all orders become public records and may be acted upon by law enforcement as they deem appropriate. C. The non -referral language contained in this paragraph is considered an essential part of the negotiated Consent Agreement. Consent Agreement, at 2-3. Capobianco, 22-0146-C Page 15 We accept the recommendation of the parties for a finding that a violation of Section I t03(a) of the Ethics Act occurred when Capobianco participated in discussions and actions of Borough Council to hire and pay a business with which he is associated, Capo's Handyman Services, to disinfect Borough offices, resulting in a private pecuniary benefit to himself and/or a business with which he is associated. The Consent Agreement reflects the parties' agreement that the elements of a use of the authority of office for a private pecuniary benefit have been established. It is clear that Capobianco used the authority of his public position as a Member of Borough Council when he seconded and voted on the motion to approve the July 28, 2021, monthly bills and deposit list which included the $7,941.99 payment to him for the COVID-19 cleaning that he performed for the Borough. Although there is no indication in the Stipulated Findings that "Capo's Handyman Services" is an actual business entity, based upon the Consent Agreement, it appears that the parties agree that Capobianco was a self-employed individual doing business as "Capo's Handyman Services" when he performed the COVID-19 cleaning services for the Borough. Additionally, the parties appear to be treating Borough Council's approval of payment to Capobianco for the COVID-19 cleaning services which he had previously claimed were being voluntarily performed to be the retroactive "hiring" of him/Capo's Handyman Services to provide those services. Based upon the Stipulated Findings and Consent Agreement, we hold that a violation of Section I I03(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Capobianco, as a Member of Borough Council, participated in discussions and actions of Borough Council to hire and pay a business with which he is associated, Capo's Handyman Services, to disinfect Borough offices, resulting in a private pecuniary benefit to himself and/or a business with which he is associated. We shall next address the parties' recommendation for a finding that a violation of Section 1104(a) of the Ethics Act occurred when Capobianco failed to file an SFI for calendar year 2021 and subsequently received compensation from the Borough. We agree with the parties that a violation of Section 1104(a) of the Ethics Act occurred when Capobianco failed to file an SFI for calendar year 2021. Given that Capobianco's service on Borough Council ended in December 2021 and that Capobianco served as the Borough Code Enforcement Officer throughout 2022, he was required to file an SFI for calendar year 2021 by May 1, 2022, as both a former Borough Council Member and the then -current Borough Code Enforcement Officer. However, to the extent Capobianco received compensation from the Borough when he did not have an SFI for calendar year 2021 on file with the Borough, the receipt of such compensation would not be an element for establishing a violation of Section I I04(a) of the Ethics Act. Instead, the receipt of such compensation would be an element for establishing a violation of Section 1104(d) of the Ethics Act, which provides, in pertinent part, that no public official shall receive compensation from public funds unless he has filed an SFI as required by the Ethics Act. Given that the Investigative Division has exercised its prosecutorial discretion to nolle pros the allegation pertaining to Section 1104(d) of the Ethics Act, we accept the recommendation of the parties as modified to reflect the elements of a violation of Section 1104(a) of the Ethics Act, and we hold that a violation of Section I I04(a) of the Ethics Act, 65 Pa.C.S. § I I04(a), occurred Capobianco,22-0146-C Page 16 when Capobianco, as a former Member of Borough Council and as the then -current Borough Code Enforcement Officer, failed to file an SFI for calendar year 2021. We note that the Investigative Division is not seeking any disgorgement of Capobianco's compensation pursuant to Section 1104(d) of the Ethics Act. As part of the Consent Agreement, Capobianco has agreed to make payment in the amount of $4,000.00 payable to the Borough and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Capobianco has further agreed to not accept any reimbursement, compensation or other payment from the Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. Additionally, to the extent he has not already done so, Capobianco has agreed to file a complete and accurate SFI for calendar year 2021 and complete and accurate amended SFIs for calendar years 2017, 2018, 2019, 2020, and 2022 with the Borough, through this Commission, within thirty (30) days of the issuance of the final adjudication in this matter. We agree that the aforesaid recommendations are appropriate, including the recommendation that Capobianco file complete and accurate amended SFIs for calendar years 2017, 2018, 2019, 2020, and 2022, notwithstanding the nolle pros as to the allegations regarding deficiencies in his SFIs for the aforesaid calendar years. Accordingly, per the Consent Agreement of the parties, Capobianco is directed to make payment in the amount of $4,000.00 payable to Parkside Borough and forwarded to this Commission by no later than the thirtieth (30'b) day after the mailing date of this adjudication and Order. Capobianco is directed to not accept any reimbursement, compensation or other payment from the Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. 'ro the extent he has not already done so, Capobianco is directed to file a complete and accurate SFI for calendar year 2021 and complete and accurate amended SFls for calendar years 2017, 2018, 2019, 2020, and 2022 with the Borough, through this Commission, by no later than the thirtieth (301h) day after the mailing date of this adjudication and Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: l . As a Member of Council for Parkside Borough ("Borough") from September 25, 2013, to December 2021, Respondent Dominic Capobianco ("Capobianco") was a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq. As the Borough Code Enforcement Officer from April 2016 until August 3, 2023, Capobianco was a public official/public employee subject to the provisions of the Ethics Act. Capobianco, 22-0146-C Page 17 2. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Capobianco participated in discussions and actions of Borough Council to hire and pay a business with which he is associated, Capo's Handyman Services, to disinfect Borough offices, resulting in a private pecuniary benefit to himself and/or a business with which he is associated. 3. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Capobianco, as a former Member of Borough Council and as the then -current Borough Code Enforcement Officer, failed to file a Statement of Financial Interests for calendar year 2021. In Re: Dominic Capobianco, File Docket: 22-0146-C Respondent Date Decided: 1/11/24 Date Mailed: 1/12/24 ORDER NO. 1829 A violation of Section 1103(a) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1103(a), occurred when Dominic Capobianco, as a Member of Council for Parkside Borough, participated in discussions and actions of Parkside Borough Council to hire and pay a business with which he is associated, Capo's Handyman Services, to disinfect Parkside Borough offices, resulting in a private pecuniary benefit to himself and/or a business with which he is associated. 2. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Capobianco, as a former Member of Parkside Borough Council and as the then -current Parkside Borough Code Enforcement Officer, failed to file a Statement of Financial Interests for calendar year 2 02 1. 3. Per the Consent Agreement of the parties, Capobianco is directed to make payment in the amount of $4,000.00 payable to Parkside Borough and forwarded to the Pennsylvania State Ethics Commission by no later than the thirtieth (30t") day after the mailing date of this Order. 4. Capobianco is directed to not accept any reimbursement, compensation or other payment from Parkside Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. 5. To the extent he has not already done so, Capobianco is directed to file a complete and accurate Statement of Financial Interests for calendar year 2021 and complete and accurate amended Statements of Financial Interests for calendar years 2017, 2018, 2019, 2020, and 2022 with Parkside Borough, through this Commission, by no later than the thirtieth (30"') day after the mailing date of this Order. 6. Compliance with paragraphs 3, 4, and 5 of this Order will result in the closing of this case with no further action by this Commission. a. Non-compliance will result in the institution of an order enforcement action. BY THE COMMISSION, W/�� Michael A. Schwarz, Chair