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HomeMy WebLinkAbout542-S NiehenkeSTATE ETHICS COMMISSION 309 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: Derek Niehenke, File Docket: Respondent X -ref: Date Decided Date Mailed: 17 -012 -P Order No. 542 -S 9128117 10/13/17 Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick 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 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. A Stipulation of Findings and a Consent Agreement 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. 1. FINDINGS: 1. Respondent Derek Niehenke ( "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 Constable, and as such, Respondent has at all times relevant to these proceedings been a "public official" as defined in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102. 3. Respondent, as a public official, is subject to the Statement of Financial Interests filing provisions of the Ethics Act. 4. Respondent failed to timely provide full financial disclosure as required by the Ethics Act. Respondent failed to timely file a Statement of Financial Interests for calendar year 2015, which [Statement of Financial Interests was to be filed] by May 1, 2016. Resppondent has therefore violated Sections 1104 and 1105 of the Ethics Act, 65 PaTS. §§ 1104, 1105. 5. By Notice Letter dated August 8, 2016, 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 ear 2015 within twenty (20) days of the date of the Notice Letter. Respondent has ailed and /or otherwise refused to file a Statement of Financial Interests for calendar year 2015 so as to comply with the specific requirements of the Ethics Act. This notice incorrectly stated that Respondent was additionally delinquent in regards to his 2013 and 2014 calendar year Statements of Financial Interests. P.©, BOX 11470, HARRISBURG, PA 17108 -1470 , 717 -783 -1610 a 1 -800- 932 -0936 ® www.ethics.state.pa.us Niehenke, 17- 012 -P age 6. By Notice Letter dated October 11, 2016, 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 civil penalty proceedings by filing an accurate and complete Statement of Financial Interests for calendar year 2015 so as to comply with the specific requirements of the Ethics Act. 7. By Notice Letter dated November 18, 2016, 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 civil penalty proceedings by filing an accurate and complete Statement of Financial Interests for calendar year 2015 so as to comply with the specific requirements of the Ethics Act. 8. Respondent failed to file his Statement of Financial Interests for calendar year 2015 with the State Ethics Commission by the deadlines imposed in the Notice Letters. II. DISCUSSION: As a Constable, Derek Niehenke ( "Niehenke ") was at all times relevant to these proceedings a "public official" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et s� Pursuant to Section 1104(a) of the Ethics Act, Niehenke was specifically required to file a Statement of Financial Interests for calendar year 2015 with the State Ethics Commission on or before May 1, 2016. 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 Niehenke as a Constable 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 Niehenke, 17 -012 -P agl-- 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 Niehenke for the delinquent Statement of Financial Interests for calendar year 2015. The prerequisite service of a Notice letter in accordance with Section 11 07(5) was satisfied. Niehenke 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 Niehenke by filing with this Commission and serving upon him a Petition for Civil Penalties. The Commission Chair issued an Order to Show Cause, ordering Niehenke to show cause why a civil penalty should not be levied against him. The parties then filed a Stipulation of Findings and Consent Agreement. The parties propose that this case be resolved by: (1) this Commission finding that Niehenke failed to timely file his Statement of Financial Interests for the 2015 calendar year in compliance with Section 1104(a ) of the Ethics Act; (2) Niehenke making payment of a civil penalty in the amount of $200.00 in settlement of this matter, payable to the Commonwealth of Pennsylvania and forwarded to this Commission in three installments - an initial installment of $25.00 by June 9, 2017, a second installment of $75.00 by June 30, 2017, and a third installment of $100.00 by July 31, 2017; and (3) Niehenke filing a Statement of Financial Interests for calendar year 2015 with this Commission within thirty days of the date of the final adjudication in this matter. We believe that the Consent Agreement sets forth a proper disposition for this case, based upon our review of the totality of the facts and circumstances. Accordingly, we approve the Consent Agreement that has been submitted by the parties. We hereby find that Niehenke, as a Constable, failed to timely file his Statement of Financial Interests for the 2015 calendar year in compliance with Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a). Per the Consent Agreement of the parties, we hereby levy one civil penalty against Niehenke in the total amount of $200.00 for Niehenke's delinquent Statement of Financial Interests for calendar year 2015. To the extent he has not already done so, Niehenke shall be ordered to make payment of the aforesaid civil penalty in the total amount of $200.00 by no later than the hirtieth (30th) day after the mailing date of this adjudication and Order, by forwarding to this Commission a check in the amount of $200.00 made payable to the Commonwealth of Pennsylvania, for deposit in the State Treasury. To the extent he has not already done so, Niehenke shall be ordered to file a complete and accurate Statement of Financial Interests for calendar year 2015 with this Commission by no later than the thirtieth (30th) day after the mailing date of this adjudication and Order. III. CONCLUSIONS OF LAW: 1. As a Constable, Derek Niehenke ( "Niehenke ") was at all times relevant to these Niehenke, 17 -012 -P agP"e4 proceedings a "public official" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et se q. 2. Niehenke, as a Constable, failed to timely file his Statement of Financial Interests for the 2015 calendar year in compliance with Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a). 3. Notice of the delinquency of Niehenke's Statement of Financial Interests for calendar year 2015 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 $200.00 is warranted. In Re: Derek Niehenke, File Docket: 17 -012 -P Respondent Date Decided: 9128117 Date Mailed: 10/13/17 ORDER NO. 542 -S 1. Derek Niehenke ("Niehenke"), as a Constable, failed to timely file his Statement of Financial Interests for the 2015 calendar year in compliance with Section 1104(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1104(a). 2. Per the Consent Agreement of the parties, we hereby levy one civil penalty against Niehenke in the total amount of $200.00 for Niehenke's delinquent Statement of Financial Interests for calendar year 2015. 3. To the extent he has not already done so, Niehenke is ordered to make payment of the aforesaid civil penalty in the total amount of $200.00 by no later than the thirtieth (30th) day after the mailing date of this Order, by forwarding to this Commission a check in the amount of $200.00 made payable to the Commonwealth of Pennsylvania, for deposit in the State Treasury. 4. To the extent he has not already done so, Niehenke is ordered to file a complete and accurate Statement of Financial Interests for calendar year 2015 with this Commission by no later than the thirtieth (30th) day after the mailing date of this Order. 5. Failure to comply with Paragraph 3 or 4 of this Order will result in the initiation of an appropriate enforcement action. BY THE COMMISSION, i f