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HomeMy WebLinkAbout1478 BotelIn Re: Julie Botel, 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 -024 Order No. 1478 7/21/08 8/5/08 This is a final adjudication of the State Ethics Commission. 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 seq., by the above -named Respondent. At the commencement 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." An Answer was filed and a hearing was requested. A Stipulation of Findings and a Consent Agreement waiving an evidentiary hearing were subsequently submitted by the parties to the Commission for consideration. The Stipulated Findings are set forth as the Findings in this Order. The Consent Agreement has been approved. This adjudication of the State Ethics Commission is issued under the Ethics Act and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date 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). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with the Ethics Act. Botel, 07 -024 Page 2 I. ALLEGATIONS: That Julie Botel, a public official /public employee in her capacity as Deputy Superintendent of the Harrisburg School District, violated Sections 1104(a), 1104(d), and 1105(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § §1104(a), 1104(d), and 1105(a) when she failed to file a Statement of Financial Interests for the 2003, 2004 and 2005 calendar years, and when she subsequently backdated those forms to give the impression that the forms were timely filed. II. FINDINGS: 1. Julie Botel has been employed by the Harrisburg City School District as the Deputy Superintendent since approximately August 2001. 2. As Deputy Superintendent, Botel has an employment contract with the district entered into on December 1, 2005, outlining in part the following duties of employment: a. The Deputy Superintendent shall be charged with the administration of the schools and programs of the district as assigned by the District Superintendent and subject to the supervision of the District Superintendent. 3. As Assistant Superintendent, Botel is annually required to file a Statement of Financial Interests form by May 1 containing information for the prior calendar year. 4. Statement of Financial Interests (SFI) forms filed by officials and employees of the Harrisburg School District are required to be maintained by Board Secretary Julie Ann Mackey. a. As Board Secretary, Mackey is responsible for maintaining completed Statement of Financial Interests forms filed by officials and employees of the Harrisburg School District. b. As Board Secretary, Julie Anne Mackey is responsible for: 1. Filling out the SFI forms for certain Harrisburg School District employees, including but not limited to Botel, based upon information provided to her by the employees, 2. Presenting the forms to the employees for their review, and 3. Obtaining their signatures on the completed forms. 5. Once forms were received by the district, according to Julie Anne Mackey, she distributed SFIs by interoffice mail or for employees working within the main office building, she would put the form in their mail basket. a. Mackey would mail blank forms for completion to former district officials and employees. b. Mackey also would generally send reminder notices out in the same fashion. 6. On March 8, 2005, correspondence was sent to Gerald Kohn, Superintendent, Harrisburg School District, 2102 North Front Street, Building 2, Harrisburg, PA 17110, from the State Ethics Commission requesting copies of all Statements of Financial Interests on file for calendar years 2000, 2001, 2002 and 2003. Botel, 07 -024 Page 3 a. This letter was sent to Superintendent Kohn via first class mail through the United States Postal Service and not to the other officials from the Harrisburg City School District. 7 No response was received by the State Ethics Commission from Superintendent Kohn. a. Mackey advised the State Ethics Commission representatives that the March 8, 2005, letter was never received by the Harrisburg School District. 8. Due to the lack of response, Investigators from the State Ethics Commission (SEC) were physically dispatched to obtain SFIs from the Harrisburg School District. a. On October 23, 2006, SEC Investigators obtained Statement of Financial Interests forms filed with the Harrisburg City School District from Christine Anderson, Administrative Assistant, Superintendent's Office. b. Anderson photocopied all SFIs which could be located in Mackey's office. 9. On October 27, 2006, Mackey submitted additional copies of SFIs for calendar years 2000, 2001, 2002, 2003 and 2004 to the State Ethics Commission. 10. Between September 25, 2006, and October 23, 2006, Mackey met with Kohn to discuss the September 25, 2006, letter from the State Ethics Commission. a. Mackey advised Kohn that the district files were missing completed Statement of Financial Interests forms for district officials and employees for various calendar years, including 2003, 2004 and 2005. b. Mackey informed Kohn that upper level district employees including Botel did not have completed SFI forms on file in the board secretary's office. c. Mackey advised Kohn that she believed that the SFI forms may have been timely filed but were now missing. 11. Botel asserts that she timely filed SFIs, with Mackey, for 2003, 2004, and 2005. 12. Between September 25, 2006, and October 23, 2006, Superintendent Kohn and Mackey discussed ways in which statements not on file could be provided to the Ethics Commission. a. According to Mackey, Kohn directed Mackey to "replace and restore" the missing SFIs. b. Kohn asserts that he was under the belief that the State Ethics Commission wanted the forms filed as they would have originally appeared. c. Kohn asserts that he formed this belief as a result of conversations with Mackey and the belief that Mackey had been told such by the State Ethics Commission. 13. To comply with Superintendent Kohn's directive, Mackey obtained blank SFI forms which contained a revision date of SEC -1 Rev. 1/06 to distribute to select district administrators. a. Mackey selected the district administrators to whom she distributed replacement forms. Botel, 07 -024 Page 4 14. Mackey used white -out to cover over the revision date on the SEC -1 Rev. 1/06 form. a. Mackey covered the 2006 revision date because forms for the 2003 and 2004 calendar years would not contain that revision date. b. Mackey then photocopied the white -out version of the form prior to distribution to district officials and employees. 15. Botel was not involved in the activities described in paragraphs six (6) through fourteen (14). 16. Mackey distributed copies of SFIs with the SEC -1 Rev. 1/06 revision date whited out to the following district officials. a. Debra Ferguson, Curriculum Director Barbara Ford, Assistant Business Administrator William Gretton, Assistant Superintendent of Business Affairs Robert Hilinski, Director of Information Stewart Kermes, Director of Alternative Education Debra Reuvenny, Director of Early Childhood Development Gail Tapper, Assistant Superintendent Mark Holman, Director of Human Resources b. Forms were not given to either Superintendent Kohn or Deputy Superintendent Julie Botel. 1. Mackey filled out forms on their behalf. c. Forms were distributed to these district employees /officials to complete for the 2003, 2004 and /or 2005 calendar years, depending upon what was missing for a particular employee. 17. Mackey personally completed replacement SFIs for Superintendent Kohn and Deputy Superintendent Julie Botel for calendar years 2003, 2004 and 2005. a. Mackey filled out the replacement forms for Kohn at Superintendent Kohn's direction. b. Mackey selected the date filed to give the appearance of a timely filing. c. Kohn and Botel signed the forms. d. Mackey then adjusted the date stamp for the Superintendent's Office to correspond to the date she placed on the replacement forms to reflect timely filings. 18. Statement of Financial Interests forms for Botel provided to the State Ethics Commission included the following: a. Calendar Year 2005 Form - SEC Form information whited out Date Listed as Being Filed: 02/06/06 Position: Deputy Superintendent Creditors: None Botel, 07 -024 Page 5 Direct /Indirect Income: Harrisburg School District All other financial Interests: None Received Superintendent's Office date stamp 2/6/06 b. Calendar Year 2004 Form - SEC Form information whited out Date Listed as Being Filed: 01/22/05 Position: Deputy Superintendent Creditors: None Direct /Indirect Income: Harrisburg School District All other financial Interests: None Received Superintendent's Office date stamp 1/22/05 c. Calendar Year 2003 Form - SEC Form information whited out Date Listed as Being Filed: 12/11/03 Position: Deputy Superintendent Creditors: None Direct /Indirect Income: Harrisburg School District All other financial Interests: None Received Superintendent's Office date stamp 12/11/03 d. All of the above filings were on a form with a revision date of 1/06. 19. Botel's SFI filing[s] for calendar years 2003 -2005 were on an SFI form for calendar year 2005 with the (SEC -1 Rev. 1/06) whited out. a. This form was not distributed to the school district until December 19, 2005. b. Mackey completed Botel's calendar year 2005 filing after the May 1, 2006, filing deadline and changed the date stamp to reflect a filing date of February 6, 2006. c. Mackey also dated the 2003 and 2004 forms in a similar manner. d. Botel signed the forms. e. The 2005 calendar year form was signed at the same time Botel signed SFIs for calendar years 2003 and 2004. 20. Mackey changed the date stamp of the Superintendent's Office to give the appearance of timely filings for Botel's SFIs covering calendar years 2003 through 2005. a. Botel signed each SFI. 21. Botel's SFI for calendar 2003 had a date stamp of December 11, 2003, indicating the form was filed on that date. a. The form on which the 2004 filing was made was not mailed to the district until December 19, 2005. 22. Botel's SFI for calendar year 2004 had a date stamp of January 22, 2005, indicating the form was filed with the district on that date. Botel, 07 -024 Page 6 a. The form on which the filing was made was not mailed to the district until December 19, 2005. 23. Botel's SFI for calendar year 2005 had a date stamp of February 6, 2006. 24. Although Mackey whited out the revision date on the replacement form, the form contained other unique revisions that identified it as the form printed and distributed for 2006 (SEC -1 Rev. 1/06). 25. Botel asserts that she was told by Mackey that the forms were to be replicated to appear as they would have appeared at the time they were originally required to be filed. III. DISCUSSION: As Deputy Superintendent for the Harrisburg School District since approximately August 2001, Julie Botel (hereinafter also referred to as "Respondent," "Respondent Botel," or "Botel ") has been 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. The allegations are that Botel violated Sections 1104(a), 1104(d), and 1105(a) of the Ethics Act when she failed to file a Statement of Financial Interests for the 2003, 2004 and 2005 calendar years, and when she subsequently backdated those forms to give the impression that the forms were timely filed. Section 1104(a) of the Ethics Act provides that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Section 1104(d) of the Ethics Act provides that no public official shall be allowed to take the oath of office, enter or continue upon his duties, or receive compensation from public funds unless he has filed a Statement of Financial Interests as required by the Ethics Act. Section 1105(a) of the Ethics Act provides that the Statement of Financial Interests shall be filed on the form prescribed by this Commission; that all information requested on the form shall be provided to the best of the knowledge, information and belief of the filer; and that the form shall be signed under oath or equivalent affirmation. 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. Since approximately August 2001, Respondent Botel has been employed by the Harrisburg School District ( "School District ") as the Deputy Superintendent. Pursuant to Section 1104(a) of the Ethics Act, Botel, as the School District's Deputy Superintendent, is required to annually file a Statement of Financial Interests (SFI) form by May 1 containing information for the prior calendar year. SFIs filed by School District officials and employees are maintained by Board Secretary Julie Ann Mackey ( "Mackey "). As Board Secretary, Mackey is responsible for filling out the SFI forms for certain School District employees -- including Botel- -based upon information provided to her by the employees, presenting the forms to the employees for their review, and obtaining their signatures on the completed forms. Botel asserts that she timely filed SFIs with Mackey for 2003, 2004, and 2005. Botel, 07 -024 Page 7 On March 8, 2005, a Division of this Commission issued correspondence via first class mail through the United States Postal Service to Gerald Kohn ( "Kohn "), Superintendent of the School District, requesting copies of all SFIs on file for calendar years 2000, 2001, 2002 and 2003. No response to the March 8, 2005, letter was received from Kohn. Mackey advised Commission representatives that the aforesaid March 8, 2005, letter was never received by the School District. On October 23, 2006, Investigators from the Investigative Division of this Commission obtained SFI forms filed with the School District from Christine Anderson, an Administrative Assistant in the Superintendent's Office. Anderson photocopied all SFIs that could be located in Mackey's office. On October 27, 2006, Mackey submitted additional copies of SFIs for calendar years 2000, 2001, 2002, 2003 and 2004 to this Commission. Between September 25, 2006, and October 23, 2006, Mackey advised Kohn that the School District files were missing completed SFI forms for School District officials and employees for various calendar years, including 2003, 2004 and 2005. Mackey informed Kohn that upper level School District employees, including Botel, did not have completed SFI forms on file in the Board Secretary's office. Mackey advised Kohn that she believed that the SFI forms might have been timely filed but were missing. Kohn and Mackey discussed ways in which SFIs not on file could be provided to the Ethics Commission. According to Mackey, Kohn directed Mackey to "replace and restore" the missing SFIs. Kohn asserts that he was under the belief that the State Ethics Commission wanted the forms filed as they would have originally appeared. Kohn asserts that he formed this belief as a result of conversations with Mackey and the belief that Mackey had been told such by the State Ethics Commission. To comply with Kohn's directive, Mackey obtained blank SFI forms which contained a revision date of "SEC -1 Rev. 1/06" to distribute to various School District administrators. Mackey used "white -out" to cover over the revision date on the SEC -1 Rev. 1/06 form. Mackey covered the 2006 revision date because forms for the 2003 and 2004 calendar years would not have contained that revision date. (The form with the 2006 revision date was not distributed to the School District until December 19, 2005 -well after the May 1, 2005, filing deadline for calendar year 2004 forms.) Mackey then photocopied the white- out version of the form and distributed copies to various School District officials /employees. Mackey personally completed replacement SFIs for Botel for calendar years 2003, 2004 and 2005. Botel's replacement SFIs for calendar years 2003, 2004 and 2005 were on the SFI form used for calendar year 2005, but with the 2006 revision date whited out. Mackey completed the aforesaid SFIs for Botel for calendar years 2003, 2004 and 2005 in late 2006, after all applicable filing deadlines. Mackey selected the dates to insert as the dates filed to give the appearance of timely filings. Mackey also adjusted the date stamp for the Superintendent's Office to correspond with the filing dates she had placed on the forms to reflect timely filings. Specifically, Mackey dated and date stamped the forms with the following filing /receipt dates: December 11, 2003, for Botel's calendar year 2003 SFI; January 22, 2005, for Botel's calendar year 2004 SFI; and February 6, 2006, for Botel's calendar year 2005 SFI. Botel signed each of the aforesaid SFI forms. All three forms were signed by Botel at the same time, in late 2006. Botel asserts that she was told by Mackey that the forms were to be replicated to appear as they would have appeared at the time they were originally required to be filed. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. Botel, 07 -024 Page 8 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 an unintentional violation of Section 1104(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1104(a) occurred when Statements of Financial Interests were not on file for Botel. b. That an unintentional violation of Section 1104(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1104(a) occurred when Botel signed, in compliance with purported instructions from the School District Secretary, Statements of Financial Interests for the 2003 through 2005 calendar years with dates representing the time period when the forms, as Botel asserts were previously filed, should have been filed rather than when they were actually filed. 4. Botel agrees to file accurate and complete Statements of Financial Interests for calendar years 2003, 2004 and 2005, if such has not already been done, within thirty (30) days of the date of the issuance of the final adjudication of the matter. Copies of such forms must also be forwarded to the State Ethics Commission. 5. 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 Respondent'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. Consent Agreement, at 1 -2. We shall first consider the parties' recommendation that this Commission find that an unintentional violation of Section 1104(a) of the Ethics Act occurred when SFIs were not on file for Botel. As the School District's Deputy Superintendent, Botel is required to annually file with the School District an SFI form by May 1 containing information for the prior calendar year. By law, SFIs are public records and are kept on file for five (5) years from the date of filing. 65 Pa.C.S. § 1107(9). At or about September- October 2006, there were no SFI forms on file with the School District for Botel for calendar years 2003, 2004 and 2005. Although intent is not a requisite element of a violation of the Ethics Act, see, Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Cmwlth. 1987), it would appear that the aforesaid violation was unintentional. Accordingly, we hold that an unintentional violation of Section 1104(a) of the Ethics Act occurred when SFIs were not on file with the School District for Botel for calendar years 2003, 2004 and 2005. The parties have additionally recommended that this Commission find that an unintentional violation of Section 1104(a) of the Ethics Act occurred when Botel signed, in Botel, 07 -024 Page 9 compliance with purported instructions from the School District Secretary, SFIs for the 2003 through 2005 calendar years with dates representing the time periods when the forms - -which Botel asserts were previously filed -- should have been filed rather than when they were actually filed. Per the Stipulated Fact Findings, the SFI forms for Botel that were provided to this Commission for calendar years 2003, 2004 and 2005 were completed and filed in late 2006. The forms were backdated as having been filed with and received by the Superintendent's Office on December 11, 2003, January 22, 2005, and February 6, 2006, respectively, to give the appearance of timely filings. Botel asserts that she was told by Mackey that the forms were to be replicated to appear as they would have appeared at the time they were originally required to be filed. Botel signed the forms with the inaccurate dates. Mackey backdated the date stamps. Accordingly, we hold that an unintentional violation of Section 1104(a) of the Ethics Act occurred when Botel signed, in compliance with purported instructions from the School District Secretary, SFIs for the 2003 through 2005 calendar years with dates representing the time periods when the forms - -which Botel asserts were previously filed -- should have been filed rather than when they were actually filed. As part of the Consent Agreement, Botel has agreed to file accurate and complete SFIs for calendar years 2003, 2004 and 2005, if such has not already been done, within thirty (30) days of the date of the issuance of the final adjudication of this matter. Botel has agreed to provide copies of such forms to this Commission. As for the portions of the allegations involving Section 1104(d) and Section 1105(a) of the Ethics Act, it appears that the Investigative Division in the exercise of its prosecutorial discretion has elected to non pros those allegations. We determine that the Consent Agreement submitted by the parties sets forth the proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, to the extent Botel has not already done so, Botel is directed to file accurate and complete SFIs for calendar years 2003, 2004 and 2005 with the School District within thirty (30) days of the date of the issuance of this adjudication and Order, with a copy of each such filing forwarded to this Commission for compliance verification purposes. Botel is instructed that the SFIs are to be dated with the date(s) Botel actually files them, not the dates by which the original forms should have been filed or the dates any other forms were filed. 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: 1. As the Deputy Superintendent for the Harrisburg School District ( "School District ") since approximately August 2001, Julie Botel ( "Botel ") has been 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. An unintentional violation of Section 1104(a) of the Ethics Act occurred when SFIs were not on file with the School District for Botel for calendar years 2003, 2004 and 2005. 3. An unintentional violation of Section 1104(a) of the Ethics Act occurred when Botel signed, in compliance with purported instructions from the School District Secretary, SFIs for the 2003 through 2005 calendar years with dates representing the time Botel, 07 -024 Page 10 periods when the forms - -which Botel asserts were previously filed -- should have been filed rather than when they were actually filed. In Re: Julie Botel, Respondent ORDER NO. 1478 File Docket: 07 -024 Date Decided: 7/21/08 Date Mailed: 8/5/08 1 An unintentional violation of Section 1104(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1104(a), occurred when Statements of Financial Interests ( "SFIs ") for calendar years 2003, 2004 and 2005 were not on file with the Harrisburg School District ( "School District ") for Julie Botel ( "Botel "), Deputy Superintendent for the School District. 2. An unintentional violation of Section 1104(a) of the Ethics Act occurred when Botel signed, in compliance with purported instructions from the School District Secretary, SFIs for the 2003 through 2005 calendar years with dates representing the time periods when the forms - -which Botel asserts were previously filed -- should have been filed rather than when they were actually filed. 3. Per the Consent Agreement of the parties, to the extent Botel has not already done so, Botel is directed to file accurate and complete SFIs for calendar years 2003, 2004 and 2005 with the School District within thirty (30) days of the date of the issuance of this Order, with a copy of each such filing forwarded to this Commission for compliance verification purposes. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair