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Home My WebLink About343-S SmallwoodIn Re: Kirk Smallwood, Respondent File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella 07 -020 -P Order No. 343 -S 1/29/08 2/15/08 This is a final adjudication of the State Ethics Commission as to the alleged delinquency and /or deficiency of Statement(s) of Financial Interests required to be filed pursuant to Sections 1104 and 1105 of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The Investigative Division initiated these proceedings by filing with the State Ethics Commission and serving upon Respondent a Petition for Civil Penalties. An Order to Show Cause was issued to Respondent. An Answer was not filed by the Respondent, and a hearing was deemed waived. The record is complete. The Findings in this Order are derived from the Petition for Civil Penalties filed by the Investigative Division. This is a final Order, and it is publicly available upon issuance. Reconsideration may be requested, but a request for reconsideration will not affect the finality of this adjudication or its availability as a public document. Any reconsideration request must be received at this Commission within thirty days of the mailing date noted above 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). Smallwood, 07 -020 -P Page 2 I. FINDINGS: 1. Respondent is an adult individual who resides or maintains a mailing address at C/O Harrisburg School District, Administration Building, 2101 N. Front Street, Building #2, Harrisburg, PA 17110. 2. At all times relevant to these proceedings, Respondent has been an Athletic Director for Harrisburg School District and as such Respondent has at all times relevant to these proceedings been a "public official" as that term is defined in Section 1102 of the Ethics Act, 65 Pa.C.S. §1102. 3. Respondent as a public official is subject to the Statement of Financial Interests filing provisions of the Ethics Act. 4. Respondent has failed to provide full financial disclosure as required by the Ethics Act. Respondent has failed to file Statements of Financial Interests for calendar years 2004 and 2005 with the Harrisburg School District, which Statements of Financial Interests were to be filed by May 1, 2005, and May 1, 2006, and Respondent has therefore transgressed Sections 1104 and 1105 of the Ethics Act, 65 Pa.C.S. § §1104, 1105. 5. By Notice letter dated February 26, 2007, Respondent was served with Notice in accordance with Section 1107(5) of the Ethics Act of the specific allegations against Respondent concerning the above transgressions. Said Notice letter provided Respondent an opportunity to avoid the institution of these civil penalty proceedings by filing accurate and complete Statements of Financial Interests for calendar years 2004 and 2005 within twenty (20) days of the date of the Notice letter. Respondent has failed and refused to file Statements of Financial Interests for calendar years 2004 and 2005 so as to comply with the specific requirements of the Ethics Act. 6. By Notice letter dated April 9, 2007, Respondent was served with Notice in accordance with Section 1107(5) of the Ethics Act of the specific allegations against Respondent concerning the above transgressions. Said Notice letter provided Respondent an opportunity to avoid the institution of these civil penalty proceedings by filing accurate and complete Statements of Financial Interests for calendar years 2004 and 2005 within twenty (20) days of the date of the Notice letter. Respondent has failed and refused to file Statements of Financial Interests for calendar years 2004 and 2005 so as to comply with the specific requirements of the Ethics Act. 7 Section 1109(f) of the Ethics Act provides as follows: §1109. Penalties (f) Civil Penalty. -- In addition to any other civil remedy or criminal penalty provided for in this chapter, the commission may, after notice has been served in accordance with section 1107(5) (relating to powers and duties of commission) and upon a majority vote of its members, levy a civil penalty upon any person subject to this chapter who fails to file a statement of financial interests in a timely manner or who files a deficient statement of financial interests, at a rate of not more than $25 for each day such statement remains delinquent or deficient. The maximum penalty payable under this paragraph is $250. 65 Pa.C.S. §1109(f). 8. For each violation the Commission finds, Respondent is subject to civil penalty Smallwood, 07 -020 -P Page 3 liability under Section 1109(f) of the Ethics Act, 65 Pa. C.S. §1109(f), at a rate of not more than $25.00 per day for each day the Statement of Financial Interests remains delinquent or deficient, for a maximum civil penalty of $250.00 per violation. Because Respondent has committed two violations alleged herein, Respondent is subject to total maximum civil penalty liability of $500.00 for said violations. 9. There are no mitigating circumstances and Respondent should be assessed the maximum civil penalty of $250.00 for each violation, in that the twenty -day deadline set forth in the said final Notice letter to Respondent has expired and the Respondent has not complied. II. DISCUSSION: As an Athletic Director for the Harrisburg School District, Kirk Smallwood ( "Smallwood ") was at all times relevant to these proceedings a "public official /public employee" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101, et seq. Pursuant to Section 1104(a) of the Ethics Act, Smallwood was specifically required to file Statements of Financial Interests for calendar years 2004 and 2005 with the Harrisburg School District on or before May 1, 2005, and May 1, 2006. Section 1104(a) provides: §1104. Statement of financial interests required to be filed (a) Public official or public employee. - -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 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 Pa.C.S. §1104(a). The complete financial disclosure which Smallwood as an Athletic Director for the Harrisburg School District was required to provide in the Statement of Financial Interests forms is statutorily mandated in detail at Section 1105 of the Ethics Act, 65 Pa.C.S. § 1105. Section 1109(f) of the Ethics Act provides as follows: §1109. Penalties (f) Civil penalty. -- In addition to any other civil remedy or criminal penalty provided for in this chapter, the commission may, after notice has been served in accordance with section 1107(5) (relating to powers and duties of commission) and upon a majority vote of its members, levy a civil penalty upon any person subject to this chapter who fails to file a statement of financial interests in a timely manner or who files a deficient statement of Smallwood, 07 -020 -P Page 4 financial interests, at a rate of not more than $25 for each day such statement remains delinquent or deficient. The maximum penalty payable under this paragraph is $250. 65 Pa.C.S. §1109(f). An application of Section 1109(f) to this case establishes that this Commission has the discretion to levy a maximum civil penalty against Smallwood for each delinquent or deficient Statement of Financial Interests. The prerequisite service of a Notice letter in accordance with Section 1107(5) was satisfied. Smallwood did not remedy the failure to comply with the Ethics Act although given more than the usual grace period following Notice in which to do so. The Investigative Division then instituted formal proceedings against Smallwood by filing with the State Ethics Commission and serving upon Smallwood a Petition for Civil Penalties. The Commission Chair issued an Order to Show Cause, ordering Smallwood to show cause why a civil penalty should not be levied against him. Smallwood did not file an answer to the Order to Show Cause. There is nothing of record that would constitute a defense or excuse for Smallwood's failure to comply with the Ethics Act. Smallwood has failed to show cause why civil penalties should not be levied against him in this matter. We find that Smallwood, as an Athletic Director for the Harrisburg School District, failed to comply with Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), when he failed to file Statements of Financial Interests for calendar years 2004 and 2005 with the Harrisburg School District. We hereby levy two civil penalties against Smallwood, each at the rate of Twenty - Five Dollars ($25.00) per day, for each day his Statements of Financial Interests for calendar years 2004 and 2005 have remained delinquent. Given the number of days during which the Statements of Financial Interests have remained delinquent, the resultant total amount to be levied against Smallwood is Five - Hundred Dollars ($500.00). Smallwood shall be ordered to make payment t cf the above civil penalties in the total amount of $500.00 by no later than the thirtieth (30) day after the mailing date of this Order, by forwarding a check to this Commission made payable to the Commonwealth of Pennsylvania, for deposit in the State Treasury. Smallwood shall be ordered to file complete and accurate Statements of Financial Interests for calendar years 2004 and 2005 with the Harrisburg School District within 30 days of the issuance of this adjudication and Order, with one copy filed with this Commission for compliance verification purposes. III. CONCLUSIONS OF LAW: 1. Kirk Smallwood ( "Smallwood "), as an Athletic Director for the Harrisburg School District, was at all times relevant to these proceedings a "public official /public employee" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. 2. Smallwood, as an Athletic Director for the Harrisburg School District, failed to comply with Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), when he failed to file Statements of Financial Interests for calendar years 2004 and 2005 with the Harrisburg School District. 3. Notice of the delinquency of Smallwood's Statements of Financial Interests for calendar years 2004 and 2005 was previously served upon him in accordance with Section 1107(5) of the Ethics Act, 65 Pa.C.S. § 1107(5). Smallwood, 07 -020 -P Page 5 4. Based upon the totality of the circumstances in this case, the imposition of two maximum civil penalties in the total amount of $500.00 is warranted. IN RE: Kirk Smallwood, Respondent File Docket: 07 -020 -P Date Decided: 1/29/08 Date Mailed: 2/15/08 ORDER NO. 343 -S 1 Kirk Smallwood ( "Smallwood "), as an Athletic Director for the Harrisburg School District, failed to comply with Section 1104(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1104(a), when he failed to file Statements of Financial Interests for calendar years 2004 and 2005 with the Harrisburg School District. 2. This Commission hereby levies two civil penalties against Smallwood, each at the rate of Twenty -Five Dollars ($25.00) per day for each day his Statements of Financial Interests for calendar years 2004 and 2005 have remained delinquent, for total civil penalty liability in the amount of Five Hundred Dollars ($500.00). Smallwood is ordered to pay the said civil penalties in the total amount of $500.00 by no later than the thirtieth (30) day after the mailing date of this Order, by forwarding a check to this Commission made payable to the Commonwealth of Pennsylvania, for deposit in the State Treasury. 3. Smallwood is ordered to file complete and accurate Statements of Financial Interests for calendar years 2004 and 2005 with the Harrisburg School District within 30 days of issuance of this Order with one copy filed with this Commission for compliance verification purposes. 4. Failure to comply with any provision of this Order will result in the initiation of an appropriate enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair