HomeMy WebLinkAbout1471 KermesIn Re: Stewart Kermes,
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 -030
Order No. 1471
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.
Kermes, 07 -030
Page 2
I. ALLEGATIONS:
That Stewart Kermes, a public official /public employee in his capacity as Director of
Alternative Education 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 he failed to file a Statement of Financial Interests for the 2004 calendar
year, and when he subsequently backdated the form to give the impression that the forms
were timely filed.
II. FINDINGS:
1. Stewart Kermes has been employed by the Harrisburg City School District as the
Director of the Alternative Education Program since approximately June 2002.
2. As the Director of the Alternative Education Program, Kermes has a job description
outlining the following job duties:
a. Responsible for the creation and development of a Transition and Work
Study Program.
b. Develop and administer all related curriculum, programs and activities.
c. The selection, evaluation, utilization and professional development of all
assigned personnel.
3. As the Director of the Alternative Education Program, Kermes 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.
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.
Kermes, 07 -030
Page 3
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
Kermes, 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. Kermes asserts that he 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
Kermes, 07 -030
Page 4
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. Kermes 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 Kermes 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: 02/15/05
Position: Director of Alternative Education
Creditors: None
Direct /Indirect Income: Harrisburg School District
All other financial Interests: None
b. The form listed a Superintendent's Office date stamp of 02/16/05 to give the
appearance of a timely filing.
c. The above filing was on a form with a revision date of 1/06.
18. Kermes' 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 2005.
b. Kermes completed his calendar year 2004 filing after the May 1, 2005, filing
deadline, while Mackey backdated the date stamp to reflect a filing date of
February 16, 2005.
c. Kermes signed the form.
19. Although Mackey whited out the revision date on the replacement form, the form
Kermes, 07 -030
Page 5
contained other unique revisions that identified it as the form printed and distributed
for 2006 (SEC -1 Rev. 1/06).
20. Kermes asserts that he 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 the Alternative Education Program for the Harrisburg School
District since approximately June 2002, Stewart Kermes (hereinafter also referred to as
"Respondent," "Respondent Kermes," or "Kermes ") 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 Kermes violated Sections 1104(a), 1104(d), and 1105(a) of
the Ethics Act when he failed to file a Statement of Financial Interests for the 2004
calendar year, and when he 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.
Since approximately June 2002, Respondent Kermes has been employed by the
Harrisburg School District ( "School District ") as the Director of the Alternative Education
Program. Pursuant to Section 1104(a) of the Ethics Act, Kermes, as the School District's
Director of the Alternative Education Program, 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 "). Kermes asserts that he 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
Kermes, 07 -030
Page 6
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 Kermes, 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 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 Kermes that was provided to this Commission for calendar year
2004 listed the date of filing as February 15, 2005. The form included a Superintendent's
Office date stamp of 02/16/05 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.
Kermes 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 February
16, 2005. Kermes signed the form.
Kermes asserts that he 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 Kermes.
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 Kermes signed, in compliance
Kermes, 07 -030
Page 7
with purported instructions from the School District
Secretary, Statements of Financial Interests for the
2004 calendar year with a date representing the time
period when the form, as Kermes asserts was
previously filed, should have been filed rather than
when it was actually filed.
4. Kermes 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 Kermes.
As the School District's Director of the Alternative Education Program, Kermes 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 was no SFI form on file with the School District for Kermes 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 Kermes 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 Kermes 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 Kermes
asserts was previously filed -- should have been filed rather than when it was actually filed.
Per the Stipulated Fact Findings, the SFI form for Kermes that was provided to this
Commission for calendar year 2004 was completed and filed in late 2006. It was
backdated as having been filed February 15, 2005, and received by the Superintendent's
Office on February 16, 2005, to give the appearance of a timely filing. Kermes asserts that
he 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. Kermes signed the form with
the inaccurate date. Mackey backdated the date stamp.
Kermes, 07 -030
Page 8
Accordingly, we hold that an unintentional violation of Section 1104(a) of the Ethics
Act occurred when Kermes 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 Kermes asserts was previously filed -- should have been
filed rather than when it was actually filed.
As part of the Consent Agreement, Kermes 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. Kermes 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 Kermes has not
already done so, Kermes 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. Kermes is instructed that the SFI is to be dated with the
date Kermes 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 the Alternative Education Program for the Harrisburg School
District ( "School District ") since approximately June 2002, Stewart Kermes
( "Kermes ") 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
Kermes for calendar year 2004.
3. An unintentional violation of Section 1104(a) of the Ethics Act occurred when
Kermes 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 Kermes asserts was previously filed -- should have
been filed rather than when it was actually filed.
In Re: Stewart Kermes,
Respondent
ORDER NO. 1471
File Docket: 07 -030
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 Stewart Kermes ( "Kermes "), Director of the
Alternative Education Program for the School District.
2. An unintentional violation of Section 1104(a) of the Ethics Act occurred when
Kermes 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 Kermes 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 Kermes has not already
done so, Kermes 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