Petitioner G.L. (hereinafter Petitioner), a former member of the Planning Commission and president of Borough Council, petitioned for review of a decision made against him by the State Ethics Commission (hereinafter “Commission”) forcing him to pay restitution to the state for violating Section 1103(a) of the Public Official and Employee Ethics Act (hereinafter “Ethics Act”). The Commission found that he used the authority of his public office for private pecuniary gain when he voted to grant final approval on a land development project (hereinafter “Project”) and signed certain documents that allowed Project to proceed. Petitioner owned a construction company that was working on Project. On appeal Petitioner claims that the Commission erred in denying his motion to dismiss based on untimely amendment to the Findings Report and also in finding that Petitioner violated Section 1103(a) of the Ethics Act.
A restaurant of which Petitioner was a patron began planning a move from their original location to another location that would require construction and contracting work. Between 2002 and 2005 the restaurant went through the necessary approval process with the local zoning board and planning commission. In late 2004 Petitioner voted to approve the plans as a member of the Planning Commission and again as the President of the Borough Council. Petitioner admitted that his construction company became involved on or about March 25, 2005. In May 2005, the restaurant submitted, after a series of revisions, the final plans for project. Petitioner approved those plans in June 2005 and also signed the restaurant’s development agreement (hereinafter “Agreement”), effectively allowing Project to begin. In July 2005 the petitioner’s company received payment of $25,000, which Petitioner deposited in the company’s bank account. The company essentially operated under contracts between Prime Properties (another construction company that Petitioner and Company had worked with in the past) and the restaurant. Acting as a member and subsequently as president of the Borough Council, Petitioner voted to approve the project and signed certain documents that allowed Project to begin. Construction began in August 2005 and ended in August 2006, during which time Petitioner received multiple payments that had been forwarded from Prime after Prime received the payments from the restaurant.
The court on appeal found that his motion to dismiss was improperly denied but nevertheless affirmed the decision of the State Ethics Commission on different grounds. Petitioner moved for dismissal because the Ethics Act mandated that the Findings Report be filed no later than 360 days after the commencement of the investigation. The Initial Findings Report was filed 359 days after the Commission started investigating Petitioner, and it sent an Amended Findings Report two weeks later. The Commission denied the motion to dismiss based on Section 35.48 of the General Rules of Administrative Practice and Procedure (GRAPP) which allowed amendments until five days before a hearing. However, the plain language of the Ethics Act caused the court here to disagree, as it contains a provision stating that the Ethics Act would prevail in the event it conflicted with another law, and the GRAPP conflicted with the Ethics Act. However, because the Amended Findings Report was not materially different on any factual matters from the timely-filed Initial Findings Report, the Commission’s decision was substantially supported by the findings of the report without the amendment. The court affirmed the Commission’s decision that Petitioner violated Section 1103(a) of the Ethics Act as a result and had used his authority as a public official for private pecuniary gain.
G.L. v. State Ethics Commission, 2011 WL 903963 (Pa.Cmwlth. 3/17/11)
The opinion can be accessed here
