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HomeMy WebLinkAbout491-S FrombachIn Re: Erik Frombach, File Docket: 15 -031 -P Respondent X -ref: Order No. 491 -S Date Decided: 6/23/16 Date Mailed: 7/8/16 Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Kathryn Streeter Lewis Maria Feeley Melanie DePalma 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 seg. 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 filed and a hearing was held. The record is complete. FINDINGS: A. Pleadings 1. Respondent is an adult individual who resides or maintains a mailing address at [address redacted]. 2. At all times relevant to these proceedings, Respondent has been a Real Estate Appraiser with the Pennsylvania Department of Transportation ( "PennDOT "), and as such, Respondent has at all times relevant to these proceedings been a "public employee" as defined in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102. 3. Respondent as a public employee has been subject to the Statement of Financial Interests filing provisions of the Ethics Act. 4. Respondent failed to file a Statement of Financial Interests for calendar year 2013 by May 1 of 2014. Respondent avers that he did not have access to the Commonwealth online filing system to file his Statement of Financial Interests for calendar year 2013 because he had retired from his Commonwealth employment in March 2013. (Answer to Order to Show Cause, at paragraph 2). By Notice letter dated August 25, 2014, 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 Frombach, 15 -031 -P Page 2 year 2013 within twenty (20) days of receipt of the Notice letter. a. Frombach avers that he does not recall receiving the Notice letter dated August 25, 2014, from the State Ethics Commission. (Answer to Order to Show Cause, at paragraph 3). 6. By Notice letter dated October 21, 2014, 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 2013 within twenty (20) days of receipt of the Notice letter. a. Respondent acknowledges receiving the October 21, 2014, Notice letter from the State Ethics Commission (ID- 3(A)). (Answer to Order to Show Cause, at paragraph 4). b. Respondent avers that he contacted the State Ethics Commission at the telephone number provided and asked if there was a paper version of the Statement of Financial Interests form available for him to complete. (Answer to Order to Show Cause, at paragraph 4). C. Respondent avers that he was told no paper version of the Statement of Financial Interests form was available and that he was given instructions on how to file a Statement of Financial Interests through the Commonwealth online filing system. (Answer to Order to Show Cause, at paragraph 4). d. Respondent avers that he was unable to get the Commonwealth online filing system to work as he did not have his Commonwealth employee identification number or access to his previous passwords. (Answerto Order to Show Cause, at paragraph 4). e. Respondent avers that he lost the telephone number for the State Ethics Commission and that he assumed he would be contacted by the State Ethics Commission when his Statement of Financial Interests for calendar year 2013 was not completed. (Answer to Order to Show Cause, at paragraph 4). 7. 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 paragraph is $250. 65 Pa.C.S. § 1109(f). 8. For each violation the State Ethics Commission finds, Respondent is subject to civil Frombach, 15 -031 -P Page 3 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 could be subject to total maximum civil penalty liability of $250.00. The Investigative Division asserts that there are no mitigating circumstances in this case and that 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 expired without Respondent complying. Respondent acknowledges that he did not file a Statement of Financial Interests for calendar year 2013. Respondent asserts that there are mitigating circumstances in this case. Respondent asserts that: (1) he did not have access to the Commonwealth online filing system to file his Statement of Financial Interests for calendar year 2013 because he had retired from his Commonwealth employment in March 2013; (2) after he received notice from the State Ethics Commission regarding his delinquent Statement of Financial Interests, he contacted the State Ethics Commission and requested a paper version of the Statement of Financial Interests form, but he was told none was available and was instead given instructions for using the Commonwealth online filing system; (3) he was unable to get the Commonwealth online filing system to work as he did not have his Commonwealth employee identification number or access to his previous passwords; (4) after he spoke with Counsel for the Investigative Division, he was provided with a paper version of the Statement of Financial Interests form, which he completed and returned to the State Ethics Commission; and (5) his Statement of Financial Interests for calendar year 2013 would have been completed in a timely fashion if he would have been provided with a paper version of the Statement of Financial Interests form as he had initially requested instead of being referred to the Commonwealth online filing system. (Answer to Order to Show Cause, at paragraphs 5, 7). B. Testimony 10. Leticia Powell ( "Ms. Powell ") is employed as the Administrative Officer of the State Ethics Commission. a. Ms. Powell is the custodian of records for the Notice letters issued by the State Ethics Commission to individuals regarding failure to file Statements of Financial Interests pursuant to the Ethics Act. b. Notice letters issued by the State Ethics Commission to current and former Commonwealth employees include an attachment containing contact information and instructions for filing Statements of Financial Interests via the Commonwealth online filing system or requesting paper forms. (ID -2). C. Each year, the Governor's Office of Administration provides the State Ethics Commission with a list of current or former Commonwealth employees who failed to file Statements of Financial Interests. d. The State Ethics Commission issued a Notice letter dated August 25, 2014, to Respondent, notifying him of his failure to file a Statement of Financial Interests for calendar year 2013. (ID -1). The August 25, 2014, Notice letter was forwarded to Respondent by Frombach, 15 -031 -P Page 4 U.S. mail and was not returned to the State Ethics Commission by the U.S. Postal Service. e. The State Ethics Commission issued a Final Notice letter dated October 21, 2014, to Respondent, notifying him of his failure to file a Statement of Financial Interests for calendar year 2013. (ID- 3(A)). 1. The October 21, 2014, Final Notice letter was forwarded to Respondent by certified mail. 2. The Domestic Return Receipt bore the signature of Respondent. (ID- 3(B)). f. Respondent filed a Statement of Financial Interests for calendar year 2013 with the State Ethics Commission on January 28, 2016. (ID -4). 11. Helen Johns ( "Ms. Johns ") is employed as a Clerk Typist 2 with the State Ethics Commission. a. Ms. Johns testified that she will provide a paper version of the Statement of Financial Interests form to anybody who requests one. 12. Lori Garvin ( "Ms. Garvin ") is employed as an HR Analyst with the Governor's Office of Administration. a. Ms. Garvin oversees the financial disclosure program for the Governor's Office of Administration. b. Respondent separated from his Commonwealth employment in March 2013. C. ID -6, which describes the job duties of a residential real estate appraiser, is substantially the same job description that Respondent held in 2013. d. The Governor's Office of Administration sent Respondent three letters dated April 12, 2013, May 31, 2013, and July 1, 2013, each of which advised Respondent of his requirement to file a Statement of Financial Interests for calendar year 2012 and provided instructions for utilizing the Commonwealth online filing system. (ID- 11(A), ID- 11(B), ID- 11(C)). Each of the three letters contained Respondent's Commonwealth employee identification number and noted the availability of the Pennsylvania HR Service Center to answer questions at the telephone number provided. e. On or about July 3, 2013, Respondent telephoned the Pennsylvania HR Service Center for assistance in filing his Statement of Financial Interests for calendar year 2012 via the Commonwealth online filing system. (ID -13). Respondent was provided with instructions for utilizing the Commonwealth online filing system to file his Statement of Financial Interests for calendar year 2012, and he was told that he could call back if he had any problems filing his Statement of Financial Interests online. 2. Respondent did not contact the Pennsylvania HR Service Center again, and he did not file a Statement of Financial Interests for calendar year 2012. Frombach, 15 -031 -P Page 5 The Governor's Office of Administration sent Respondent three letters dated February 3, 2014, June 9, 2014, and July 1, 2014, each of which advised Respondent of his requirement to file a Statement of Financial Interests for calendar year 2013 and provided instructions for utilizing the Commonwealth online filing system. (ID -8, ID -9, ID -10). Each of the three letters contained Respondent's Commonwealth employee identification number and noted the availability of the Pennsylvania HR Service Center to answer questions at the telephone number provided. Respondent contacted the Pennsylvania HR Service Center in 2013 (ID -13) and was told how to create a login to file a Statement of Financial Interests electronically. During his aforesaid contact with the Pennsylvania HR Service Center in 2013, Respondent was told that he could call the Pennsylvania HR Service Center again if he had any problems. Respondent did not file a Statement of Financial Interests for calendar year 2013 via the Commonwealth online filing system. C. Documents 13. ID -1 consists of a Notice letter dated August 25, 2014, from the Executive Director of the State Ethics Commission to Respondent, which notified Respondent of his failure to file a Statement of Financial Interests for calendar year 2013 and provided Respondent an opportunity to avoid the institution of civil penalty proceedings by filing a complete and accurate Statement of Financial Interests for calendar year 2013 within twenty (20) days of receipt of the Notice letter. 14. ID -2 consists of a State Ethics Commission document containing instructions forthe filing of Statements of Financial Interests by current and former Commonwealth employees. The instructions indicate that current employees with Commonwealth computer access are required to file their Statements of Financial Interests online through the Commonwealth financial disclosure filing website. The instructions indicate that while former employees are encouraged to file their Statements of Financial Interests electronically, paper forms will be accepted from former employees. The instructions inform former employees where to call if they do not have computer access and need to request paper forms. 15. ID -3(A) consists of a Final Notice letter dated October 21, 2014, from the Executive Director of the State Ethics Commission to Respondent, which notified Respondent of his failure to file a Statement of Financial Interests for calendar year 2013 and provided Respondent an opportunity to avoid the institution of civil penalty proceedings by filing a complete and accurate Statement of Financial Interests for calendar year 2013 within twenty (20) days of receipt of the Notice letter. 16. ID -4 consists of a Statement of Financial Interests for calendar year 2013 that Respondent filed with the State Ethics Commission on January 28, 2016. Frombach, 15 -031 -P Page 6 17. ID -5 consists of an Answer to the Order to Show Cause filed by Respondent on January 28, 2016. 18. ID -6 consists of the job classification specifications for the position of Residential Real Estate Appraiser as of March 28, 2014. D. Other Fact Findings 19. On November 10, 2015, the Investigative Division filed with the State Ethics Commission a Petition for Civil Penalties against Respondent, alleging that Respondent failed to file a Statement of Financial Interests for calendar year 2013, which Statement of Financial Interests was to be filed by May 1 of 2014. 20. On December 31, 2015, the Chair of the State Ethics Commission issued an Order to Show Cause, ordering Respondent to show cause why a civil penalty should not be levied against him. 21. On January 28, 2016, Respondent filed an Answer to the Order to Show Cause. a. In his Answer to the Order to Show Cause, Respondent stated that "I am requesting a hearing so the above response can be reviewed without my presence being required." (Answer to Order to Show Cause, at paragraph 8). 22. On January 29, 2016, Chief Counsel of the State Ethics Commission issued a letter to Respondent acknowledging receipt of Respondent's Answer to the Order to Show Cause and stating, in part: You timely filed an answer, which was received by the State Ethics Commission on January 28, 2016. You timely requested a hearing at which your presence would not be required. A hearing will be scheduled. Although you are not required to attend, failure to attend could result in adverse legal consequences for your case. (January 29, 2016, letter of Chief Counsel, at paragraph 2). 23. A Notice of Hearing was issued on March 2, 2016, notifying Respondent that the State Ethics Commission would conduct a hearing in this matter on April 5, 2016, at which time Respondent would be provided an opportunity to be heard and to present evidence. 24. Respondent did not attend the hearing that was held in this matter on April 5, 2016. II. DISCUSSION: As a Real Estate Appraiser for the Pennsylvania Department of Transportation ( "PennDOT "), Erik Frombach ( "Frombach ") was at all times relevant to these proceedings a "public employee" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. C.S. § 1101 et seg. Pursuant to Section 1104(a) of the Ethics Act, Frombach was specifically required to file a Statement of Financial Interests for calendar year 2013 with PennDOT on or before May 1, 2014. Section 1104(a) provides: § 1104. Statement of financial interests required to be filed (a) Public official or public employee. - -Each public official of the Frombach, 15 -031 -P Page 7 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 Frombach as a Real Estate Appraiser for PennDOT 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 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) Procedurally, in accordance with Section 1107(5) of the Ethics Act, the Investigative Division of the State Ethics Commission sent a Notice of Intent to Commence Civil Penalty Proceedings (Notice letter) dated August 25, 2014, to Frombach, stating that Frombach had failed to file a Statement of Financial Interests for calendar year2013. The Notice letter provided Frombach an opportunity to avoid the institution of civil penalty proceedings by filing an accurate and complete Statement of Financial Interests for calendar year 2013 within twenty (20) days of receipt of the Notice letter. Frombach did not file a Statement of Financial Interests within such 20 -day grace period. A Final Notice letter dated October 21, 2014, containing the same substantive information as the first Notice letter, and providing another 20 -day grace period for filing the delinquent Statement of Financial Interests, was sent to Frombach. Once again, Frombach did not file a Statement of Financial Interests within the 20 -day grace period. The Investigative Division then instituted formal proceedings against Frombach by filing with the State Ethics Commission and serving upon Frombach a Petition for Civil Penalties. On December 31, 2015, the Commission Chair issued an Order to Show Cause, ordering Frombach to show cause why a civil penalty should not be levied against him. Frombach, 15 -031 -P Page 8 On January 28, 2016, Frombach filed a Statement of Financial Interests for calendar year 2013 with the State Ethics Commission. Frombach additionally filed an Answer to the Order to Show Cause, asserting that there are mitigating circumstances in this case. Specifically, Frombach asserts that: (1) he did not have access to the Commonwealth online filing system to file his Statement of Financial Interests for calendar year 2013 because he had retired from his Commonwealth employment in March 2013; (2) after he received notice from the State Ethics Commission regarding his delinquent Statement of Financial Interests, he contacted the State Ethics Commission and requested a paper version of the Statement of Financial Interests form, but he was told none was available and was instead given instructions for using the Commonwealth online filing system; (3) he was unable to get the Commonwealth online filing system to work as he did not have his Commonwealth employee identification number or access to his previous passwords; (4) after he spoke with Counsel for the Investigative Division, he was provided with a paper version of the Statement of Financial Interests form, which he completed and returned to the State Ethics Commission; and (5) his Statement of Financial Interests forcalendaryear 2013 would have been completed in a timely fashion if he would have been provided with a paper version of the Statement of Financial Interests form as he had initially requested instead of being referred to the Commonwealth online filing system. Frombach requested a hearing so that his Answer to the Order to Show Cause could be considered without his presence being required. A hearing was held in this matter on April 5, 2016. Frombach did not attend the hearing. There is no evidence of record that would support Frombach's assertions. The Investigative Division has filed a Closing Statement and Brief arguing that Frombach should be assessed a civil penalty in the amount of $250.00 for failing to file a Statement of Financial Interests for calendar year 2013 with PennDOT. Pursuant to Section 1109(f) of the Ethics Act, this Commission may levy a maximum civil penalty against Frombach for the delinquent Statement of Financial Interests for calendar year 2013. Although we may consider mitigating factors when exercising our discretion to levy civil penalty(ies), see, State Ethics Commission Resolution No. 91 -002, there is no evidence of record establishing mitigating circumstances in this case. The assertions set forth by Frombach in his Answer to the Order to Show Cause are unsupported. There is nothing of record that would constitute a defense or excuse for Frombach's failure to comply with the Ethics Act. We find that Frombach, as a Real Estate Appraiser for PennDOT, failed to comply with Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), when he failed to timely file a Statement of Financial Interests for calendar year 2013 with PennDOT. We hereby levy one maximum civil penalty against Frombach at the rate of Twenty - Five Dollars ($25.00) per day for each day his Statement of Financial Interests for calendar year 2013 remained delinquent. Given the number of days during which the Statement of Financial Interests remained delinquent, the resultant amount to be levied against Frombach is Two - Hundred and Fifty Dollars ($250.00). Frombach shall be ordered to make paymett 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. III. CONCLUSIONS OF LAW: 1. Erik Frombach ( "Frombach "), as a Real Estate Appraiser for the Pennsylvania Department of Transportation, was at all times relevant to these proceedings a "public employee" subject to the provisions of the Public Official and Employee Frombach, 15 -031 -P Page 9 Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et sec 2. Frombach, as a Real Estate Appraiser for the Pennsylvania Department of Transportation, failed to comply with Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), when he failed to timely file a Statement of Financial Interests for calendar year 2013 with the Pennsylvania Department of Transportation. 3. Notice of the delinquency of Frombach's Statement of Financial Interests for calendar year 2013 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: Erik Frombach, File Docket: 15 -031 -P Respondent Date Decided: 6/23/16 Date Mailed: 7/8/16 ORDER NO. 491 -S Erik Frombach ( "Frombach "), as a Real Estate Appraiser for the Pennsylvania Department of Transportation, failed to comply with Section 1104(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1104(a), when he failed to timely file a Statement of Financial Interests for calendar year 2013 with the Pennsylvania Department of Transportation. This Commission hereby levies one maximum civil penalty against Frombach at the rate of Twenty -Five Dollars ($25.00) per day for each day his Statement of Financial Interests for calendar year 2013 remained delinquent, for a total civil penalty of Two - Hundred and Fifty Dollars ($250.00). Frombach is ordered top t said civil penalty in the total amount of $250.00 by no later than the thirtieth (30t day after the mailing date of this Order, by forwarding a check to the State Ethics Commission made payable to the Commonwealth of Pennsylvania, for deposit in the State Treasury. Failure to comply with Paragraph 2 of this Order will result in the initiation of an appropriate enforcement action. BY THE COMMISSION, Nicholas A. Colafella, Chair