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HomeMy WebLinkAbout1475 FergusonIn Re: Debra Ferguson, 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 -026 Order No. 1475 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. Ferguson, 07 -026 Page 2 I. ALLEGATIONS: That Debra Ferguson, a public official /public employee in her capacity as Director of Curriculum 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 2004 calendar year, and when she subsequently backdated the form to give the impression that the forms were timely filed. II. FINDINGS: 1. Debra Ferguson [was] employed by the Harrisburg City School District as the Director of Curriculum from approximately May 2003 to August 2005. 2. As Director of Curriculum, Ferguson had a job description outlining ... duties and responsibilities. Some of those duties are listed below: a. Coordinate the development of e -grant for consolidated Title programs. b. Monitor and approve expenditures for grants. c. Act as a liaison with consolidated federal grants and other special grants with PA Department of Education. 3. As Director of Curriculum, Ferguson was 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. 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. 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 Ferguson, 07 -026 Page 3 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 Ferguson, 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. Ferguson asserts that she timely filed SFIs, with Mackey, for 2004. 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. 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. Ferguson, 07 -026 Page 4 b. Mackey then photocopied the white -out version of the form prior to distribution to district officials and employees. 15. Ferguson 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. Statements of Financial Interests forms for Ferguson provided to the State Ethics Commission for calendar year 2004 included the following: a. Calendar Year 2004 Form - SEC Form information whited out Date Listed as Being Filed: 04/18/05 Position: Curriculum Director Creditors: None Direct /Indirect Income: Harrisburg School District All other financial Interests: None b. The form listed a Superintendent's Office date stamp of 04/18/05 to give the appearance of a timely filing. c. The above filing was on a form with a revision date of 1/06. 18. Ferguson's SFI filing for calendar year 2004 was 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. Ferguson completed her calendar year 2004 filing after the May 1, 2005, filing deadline, while Mackey backdated the date stamp to reflect a filing date of April 18, 2005. c. Ferguson signed the form. 19. 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). Ferguson, 07 -026 Page 5 20. Ferguson 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 the Director of Curriculum for the Harrisburg School District from approximately May 2003 to August 2005, Debra Ferguson (hereinafter also referred to as "Respondent," "Respondent Ferguson," or "Ferguson ") 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 Ferguson 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 2004 calendar year, and when she subsequently backdated the form to give the impression that the form was 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. From approximately May 2003 to August 2005, Respondent Ferguson was employed by the Harrisburg School District ( "School District ") as the Director of Curriculum. Pursuant to Section 1104(a) of the Ethics Act, Ferguson, as the School District's Director of Curriculum, was 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 "). Ferguson asserts that she timely filed SFI(s) with Mackey for 2004. On March 8, 2005, a Division of this Commission issued correspondence via first class mail through the United States Postal Service to Gerald 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 Superintendent 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. Ferguson, 07 -026 Page 6 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 Ferguson, 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. Superintendent 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 Superintendent 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 School District officials /employees including Respondent. The SFI form for Ferguson that was provided to this Commission for calendar year 2004 listed the date of filing as April 18, 2005. The form included a Superintendent's Office date stamp of 04/18/05 to give the appearance of a timely filing. The filing was on the SFI form used for calendar year 2005, but with the 2006 revision date whited out. Ferguson completed the aforesaid calendar year 2004 SFI in late 2006, after the May 1, 2005, filing deadline. Mackey backdated the date stamp to reflect a filing date of April 18, 2005. Ferguson signed the form. Ferguson 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. 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 a Statement of Financial Interests was not on file for Ferguson. 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 Ferguson signed, in compliance with purported instructions from the School Ferguson, 07 -026 Page 7 District Secretary, Statements of Financial Interests for the 2004 calendar year with a date representing the time period when the form, as Ferguson asserts was previously filed, should have been filed rather than when it was actually filed. 4. Ferguson agrees to file an accurate and complete Statement of Financial Interests for calendar year 2004, 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 an SFI was not on file for Ferguson. As the School District's Director of Curriculum from approximately May 2003 to August 2005, Ferguson was 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 was no SFI form on file with the School District for Ferguson for calendar year 2004. 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 an SFI was not on file with the School District for Ferguson for calendar year 2004. The parties have additionally recommended that this Commission find that an unintentional violation of Section 1104(a) of the Ethics Act occurred when Ferguson signed, in compliance with purported instructions from the School District Secretary, SFI(s) for the 2004 calendar year with a date representing the time period when the form - -which Ferguson asserts was previously filed -- should have been filed rather than when it was actually filed. Per the Stipulated Fact Findings, the SFI form for Ferguson that was provided to this Commission for calendar year 2004 was completed and filed in late 2006. It was backdated as having been filed with and received by the Superintendent's Office on April 18, 2005, to give the appearance of a timely filing. Ferguson 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. Ferguson signed the form with the inaccurate date. Mackey backdated the date stamp. Ferguson, 07 -026 Page 8 Accordingly, we hold that an unintentional violation of Section 1104(a) of the Ethics Act occurred when Ferguson signed, in compliance with purported instructions from the School District Secretary, SFI(s) for the 2004 calendar year with a date representing the time period when the form - -which Ferguson asserts was previously filed -- should have been filed rather than when it was actually filed. As part of the Consent Agreement, Ferguson has agreed to file an accurate and complete SFI for calendar year 2004, if such has not already been done, within thirty (30) days of the date of the issuance of the final adjudication of this matter. Ferguson has agreed to provide copies of such form(s) 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 Ferguson has not already done so, Ferguson is directed to file an accurate and complete SFI for calendar year 2004 with the School District within thirty (30) days of the date of the issuance of this adjudication and Order, with a copy of such filing forwarded to this Commission for compliance verification purposes. Ferguson is instructed that the SFI is to be dated with the date Ferguson actually files it, not the date by which the original form should have been filed or the date 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 Director of Curriculum for the Harrisburg School District ( "School District ") from approximately May 2003 to August 2005, Debra Ferguson ( "Ferguson ") 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 a Statement of Financial Interests ( "SFI ") was not on file with the School District for Ferguson for calendar year 2004. 3. An unintentional violation of Section 1104(a) of the Ethics Act occurred when Ferguson signed, in compliance with purported instructions from the School District Secretary, SFI(s) for the 2004 calendar year with a date representing the time period when the form - -which Ferguson asserts was previously filed -- should have been filed rather than when it was actually filed. In Re: Debra Ferguson, Respondent ORDER NO. 1475 File Docket: 07 -026 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 a Statement of Financial Interests ( "SFI ") for calendar year 2004 was not on file with the Harrisburg School District ( "School District ") for Debra Ferguson ( "Ferguson "), who served as the Director of Curriculum for the School District from approximately May 2003 to August 2005. 2. An unintentional violation of Section 1104(a) of the Ethics Act occurred when Ferguson signed, in compliance with purported instructions from the School District Secretary, SFI(s) for the 2004 calendar year with a date representing the time period when the form - -which Ferguson asserts was previously filed -- should have been filed rather than when it was actually filed. 3. Per the Consent Agreement of the parties, to the extent Ferguson has not already done so, Ferguson is directed to file an accurate and complete SFI for calendar year 2004 with the School District within thirty (30) days of the date of the issuance of this Order, with a copy of 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