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HomeMy WebLinkAbout359-S LitzenbergerIn Re: James Litzenberger, Respondent File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella Mark Volk 09 -012 -P Order No. 359 -S 9/22/09 10/6/09 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). Litzenberger, 09 -012 -P Page 2 I. FINDINGS: 1. Respondent is an adult individual who resides or maintains a mailing address at 16 Homestead Road, Kintnersville, PA 18930. 2. At all times relevant to these proceedings, Respondent has been a Controller for Hope Charter School, and as such Respondent has at all times relevant to these proceedings been a "public official /public employee" as defined in Section 1102 of the Ethics Act, 65 Pa.C.S. §1102. 3. Respondent as a public official /public employee 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 a Statement of Financial Interests for calendar year 2005 with Hope Charter School, which Statement of Financial Interests was to be filed by May 1 of 2006. Respondent has therefore transgressed Sections 1104 and 1105 of the Ethics Act, 65 Pa.C.S. §§ 1104, 1105. 5. By Notice letter dated February 2, 2009, Respondent was served with Notice in accordance with Section 1107(5) of the Ethics Act of the specific allegations against Respondent concerning the above transgression. Said Notice letter provided Respondent an opportunity to avoid the institution of these civil penalty proceedings by filing an accurate and complete Statement of Financial Interests for calendar year 2005 within twenty (20) days of the date of the Notice letter. Respondent has failed and refused to file a Statement of Financial Interests for calendar year 2005 so as to comply with the specific requirements of the Ethics Act. 6. By Notice letter dated March 16, 2009, Respondent was served with Notice in accordance with Section 1107(5) of the Ethics Act of the specific allegations against Respondent concerning the above transgression. Said Notice letter provided Respondent an opportunity to avoid the institution of these civil penalty proceedings by filing an accurate and complete Statement of Financial Interests for calendar year 2005 within twenty (20) days of the date of the Notice letter. Respondent has failed and refused to file a Statement of Financial Interests for calendar year 2005 so as to comply with the specific requirements of the Ethics Act. 7 In addition to calendar year 2005, both Notice letters also stated that Respondent's Statements of Financial Interests for calendar year(s) 2006 and 2007 were legally deficient. Upon further investigation, the Investigative Division has determined that Respondent's Statements of Financial Interests for calendar years 2006 and 2007 are legally sufficient; therefore, the instant matter pertains only to calendar year 2005. 8. Section 1109(f) of the Ethics Act provides: § 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 Litzenberger, 09 -012 -P Page 3 paragraph is $250. 65 Pa.C.S. § 1109(f). 9. For each violation the Commission finds, Respondent is subject to civil penalty 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 one violation alleged herein, Respondent is subject to total maximum civil penalty liability of $250.00. 10. There are no mitigating circumstances and Respondent should be assessed the maximum civil penalty of $250.00, 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 Controller for Hope Charter School, James Litzenberger ( "Litzenberger ") 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, Litzenberger was specifically required to file a Statement of Financial Interests for calendar year 2005 with Hope Charter School on or before 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 Litzenberger as Controller for Hope Charter School was required to provide in the Statement of Financial Interests form 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 Litzenberger, 09 -012 -P Page 4 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). An application of Section 1109(f) to this case establishes that this Commission has the discretion to levy a maximum civil penalty against Litzenberger for the delinquent Statement of Financial Interests for calendar year 2005. The prerequisite service of a Notice letter in accordance with Section 1107(5) was satisfied. Litzenberger 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 Litzenberger by filing with the State Ethics Commission and serving upon Litzenberger a Petition for Civil Penalties. The Commission Chair issued an Order to Show Cause, ordering Litzenberger to show cause why a civil penalty should not be levied against him. Litzenberger did not file an answer to the Order to Show Cause. There is nothing of record that would constitute a defense or excuse for Litzenberger's failure to comply with the Ethics Act. Litzenberger has failed to show cause why a civil penalty should not be levied against him in this matter. We find that Litzenberger, as Controller for Hope Charter School, failed to comply with Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), when he failed to file a Statement of Financial Interests for calendar year 2005 with Hope Charter School. We hereby levy one civil penalty against Litzenberger at the rate of Twenty -Five Dollars ($25.00) per day for each day his Statement of Financial Interests for calendar year 2005 has remained delinquent. Given the number of days during which the Statement of Financial Interests has remained delinquent, the resultant amount to be levied against Litzenberger is Two - Hundred and Fifty Dollars ($250.00). Litzenberger shall be ordered to make payment of the above civil penalty in the amount of $250.00 by no later than the thirtieth (30) day after the mailing date of this adjudication and Order, by forwarding a check to this Commission made payable to the Commonwealth of Pennsylvania, for deposit in the State Treasury. Litzenberger shall be ordered to file a complete and accurate Statement of Financial Interests for calendar year 2005 with Hope Charter School by no later than the thirtieth (30 day after the mailing date of this adjudication and Order, with one copy filed with this Commission for compliance verification purposes. III. CONCLUSIONS OF LAW: 1. James Litzenberger ( "Litzenberger "), as Controller for Hope Charter School, 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. Litzenberger, as Controller for Hope Charter School, failed to comply with Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), when he failed to file a Statement of Financial Interests for calendar year 2005 with Hope Charter School. 3. Notice of the delinquency of Litzenberger's Statement of Financial Interests for Litzenberger, 09 -012 -P Page 5 calendar year 2005 was previously served upon him in accordance with Section 1107(5) of the Ethics Act, 65 Pa.C.S. § 1107(5). 4. Based upon the totality of the circumstances in this case, a civil penalty in the total amount of $250.00 is warranted. IN RE: James Litzenberger, Respondent File Docket: 09 -012 -P Date Decided: 9/22/09 Date Mailed: 10/6/09 ORDER NO. 359 -S 1 James Litzenberger ( "Litzenberger "), as Controller for Hope Charter School, 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 a Statement of Financial Interests for calendar year 2005 with Hope Charter School. 2. This Commission hereby levies one civil penalty against Litzenberger at the rate of Twenty -Five Dollars ($25.00) per day for each day his Statement of Financial Interests for calendar year 2005 has remained delinquent, for a total civil penalty of Two - Hundred and Fifty Dollars ($250.00). Litzenberger is ordered to pay the said civil penalty in the total amount of $250.00 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. Litzenberger is ordered to file a complete and accurate Statement of Financial Interests for calendar year 2005 with Hope Charter School by no later than the thirtieth (30 day after the mailing date of this Order, with one copy filed with this Commission for compliance verification purposes. 4. Failure to comply with Paragraph 2 or 3 of this Order will result in the initiation of an appropriate enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair