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HomeMy WebLinkAbout027-S DeBaptisteSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 IN RE: CLIFFORD E. DEBAPTISTE : File Docket: 92 -019 -P : Date Decided: June 23, 1922 Respondent : Date Mailed: June 29, 1922 Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Austin M. Lee Allan M. Kluger The State Ethics Commission received information regarding possible violation(s) of Section 4 and /or Section 5 of the Public Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, 65 P.S. §401 et seq. Written Notice was mailed to Respondent in accordance with Section (7)(5) of the Ethics Law, as to which there was no response. A Notice and Order to Show Cause was issued and served upon Respondent. An Answer was filed and a hearing was waived. The record is complete. This adjudication of the Commission is hereby issued, which sets forth Findings of Fact, Discussion, Conclusions of Law and Order. This Adjudication is final and is a public document. Reconsideration may be requested. A request for reconsideration, however, does not affect the finality of this adjudication. A reconsideration request must be received at this Commission within fifteen days of issuance and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §2.38. Clifford E. DeBaptiste June 29, 1992 Page 2 I. FINDINGS: 1. Respondent Clifford E. DeBaptiste is an adult individual who resides or maintains a mailing address at 610 East Miner Street, West Chester, Pennsylvania 19382. 2. Respondent is now and at all times relevant to these proceedings has been a Member of the State Board of Funeral Directors. (a) Respondent specifically held the aforesaid position in 1990. (b) Respondent admits that he is subject to the provisions of the Ethics Law. 3. Respondent did not file a Statement of Financial Interests for calendar year 1990 with the State Ethics Commission and the Governor's Office of Administration on or before May 1, 1991. (a) Respondent admits that he did not file a Statement of Financial Interests for calendar year 1990 with the State Ethics Commission and the Governor's Office of Administration on or before May 1, 1991. (b) Respondent avers in mitigation that he has faithfully and timely filed each of the eleven years he has been a member of the State Board of Funeral Directors, and that his failure to file the Statement of Financial Interests for calendar year 1990 was unintentional and strictly inadvertent. 4. A Notice letter dated June 18, 1991 was served upon Respondent by this Commission. The said Notice letter stated in detail the specific allegations against Respondent concerning the delinquency of Respondent's Statement of Financial Interests for calendar year 1990 and the penalties for failure to file or for filing a deficient Statement of Financial Interests. The 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 1990 within fourteen (14) days of the date of the Notice letter. (a) Respondent admits service of the aforesaid Notice letter of June 18, 1991, upon Respondent. (b) Respondent avers in mitigation that he has no recollection of reading the aforesaid letter and that if he had read such letter he would have filed the requested Clifford E. DeBaptiste June 29, 1992 Page 3 Statement of Financial Interests within the fourteen day period. 5. Respondent did not file a Statement of Financial Interests with the State Ethics Commission and the Governor's Office of Administration for calendar year 1990 within fourteen days of the date of the said Notice letter. 6. Respondent admits that Respondent is subject to civil penalty liability in this matter of up to the statutory maximum. 7. Respondent denies that there are no mitigating circumstances such that Respondent should be assessed the aforesaid maximum civil penalty of Two Hundred Fifty Dollars ($250.00). (a) Respondent states that he does not believe the legislature intended to penalize merely inadvertent non- filing but obviously intended such penalties to apply to instances of deliberate refusal to file. (b) Respondent requests that this Commission exercise its discretion and reduce the penalty from the maximum rate of $25.00 per day for $250.00 maximum, and suggests a civil penalty at the rate of $5.00 per day for a total civil penalty of $50.00. 8. As a matter of public record, Respondent filed a Statement of Financial Interests for calendar year 1990 after receiving the Order to Show Cause which Statement of Financial Interests is dated April 13, 1992, and was received by this Commission on April 13, 1992. (a) Block 11 of said Statement of Financial Interests does not disclose as sources of income various funeral homes noted elsewhere in the form. II. DISCUSSION: Respondent is now and at all times relevant to these proceedings has been a Member of the State Board of Funeral Directors. Respondent specifically held the aforesaid position in 1990. As a Member of the State Board of Funeral Directors, Respondent is a "public official" as that term is defined under the Public Official and Employee Ethics Law ( "Ethics Law "), 65 P.S. 5401, ,e„ secr. , and as such, Respondent is subject to the provisions of the Ethics Law. Pursuant to Sections 4 and 5 of the Ethics Law, Respondent was Clifford E. DeBaptiste June 29, 1992 Page 4 required to file a Statement of Financial Interests providing complete financial disclosure for calendar year 1990 with the State Ethics Commission and the Governor's Office of Administration by May 1, 1991. 65 P.S. §S404,405. Section 9(f) of the Ethics Law provides as follows: (f) In addition to any other civil remedy or criminal penalty provided for in this act, the commission may, after notice has been served in accordance with section 7(5) and upon a majority vote of its members, levy a civil penalty upon any person subject to this act 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 P.S. S409(f). An application of Section 9(f) to this case establishes that this Commission has the discretion to levy a maximum civil penalty against the Respondent for the delinquent Statement of Interests for calendar year 1990. Respondent has admitted that he is subject to civil penalty liability in this matter of up to the statutory maximum. However, Respondent avers various mitigating circumstances and asks that this Commission exercise its discretion to reduce the penalty from the maximum rate, suggesting a penalty of $5.00 per day and $50.00 total. Factually, Respondent has admitted that he failed to timely file a Statement of Financial Interests for calendar year 1990 with the State Ethics Commission and the Governor's Office of Administration, which constitutes a failure to comply with Sections 4 and 5 of the Ethics Law. In this regard, Respondent avers in mitigation that he has faithfully and timely filed each of the eleven years he has been a member of the State Board of Funeral Directors, and that the failure to file the Statement of Financial Interests for calendar year 1990 was unintentional and strictly inadvertent. Pursuant to Section 7(5) of the Ethics Law, a Notice letter dated June 18, 1991 was issued to Respondent notifying Respondent in detail of the specific allegations against Respondent concerning the delinquency of Respondent's Statement of Financial Interests for calendar year 1990 and the penalties for failure to file or for filing a deficient Statement of Financial Interests. The service of a Notice letter in accordance with Section 7(5) is a prerequisite to the levying of a civil penalty under Section 9(f) of the Ethics Law. 65 P.S. S409(f). This prerequisite has been Clifford E. DeBaptiste June 29, 1992 Page 5 met in this case. Respondent has admitted service of the aforesaid Notice letter upon him. Respondent avers in mitigation that he has no recollection of reading the letter and that if he had read that letter he certainly would have filed the requested Statement of Financial Interests within the fourteen day period. From a legal standpoint, the proper service of the Notice letter upon Respondent would not be invalidated simply because the Respondent does not recall reading it. Upon being notified of the above transgression, Respondent did not remedy the failure to file a Statement of Financial Interests for calendar year 1990 although given fourteen days from the date of the aforesaid Notice letter in which to do so. This Commission then instituted formal proceedings against Respondent by issuing an Order to Show Cause, ordering Respondent to show cause why a civil penalty should not be levied against Respondent. Respondent's Answer to the Order to Show Cause does not seek an absolute waiver of a civil penalty but rather, requests a reduction in the amount of the civil penalty based upon the averred mitigating circumstances. As noted above, such circumstances which Respondent has averred include a history of prior timely filings, the unintentional and inadvertent nature of the instant delinquency, and the lack of any recollection by Respondent of reading the Section 7(5) Notice letter which Respondent indicates would have induced his compliance •if it had been read by him. Additionally, Respondent avers that he does not believe the legislature intended to penalize merely inadvertent non - filing but obviously intended such civil penalties to apply to instances of deliberate refusal to file. The public records of the State Ethics Commission reflect that Respondent has a history of delinquency with regard to filing Statements of Financial Interests for other calendar years, including calendar years 1987, 1988, and 1989. However, as to prior delinquencies, Respondent appears to have paid heed to prior Notice letters which were issued to him. It is additionally noted that Respondent filed a timely Statement of Financial Interests for calendar year 1991, which was submitted with his Answer to the Order to Show Cause. We would further note that following the issuance of the Order to Show Cause, Respondent filed a Statement of Financial Interests dated April 13, 1992 for calendar year 1990. The Statement of Financial Interests may be technically deficient in block 11, because various funeral homes listed elsewhere in the form are not . listed as sources of income in block 11. Based upon the totality of circumstances in this case, we hereby levy one civil penalty against Respondent Clifford E. Clifford E. DeBaptiste June 29, 1992 Page 6 DeBaptiste in the total amount of One Hundred Fifty Dollars ($150.00). In levying the aforesaid civil penalty, we are cognizant that we could assess a per diem civil penalty against Respondent up to the total maximum amount of Two Hundred Fifty Dollars ($250.00) allowed by the Ethics Law, but have determined that an appropriate exercise of our discretion in this case would be to assess a lesser civil penalty in the total amount of $150.00. If Respondent has failed to disclose in block 11 of his Statement of Financial Interests for calendar year 1990 all reportable sources of income, Respondent is directed to file an amended Statement of Financial Interests for calendar year 1990 correcting all such technical deficiencies. III. CONCLUSIONS OF LAW: 1. Respondent Clifford E. DeBaptiste is now and at all times relevant to these proceedings has been a Member of the State Board of Funeral Directors and as such Respondent is a "public official" as that term is defined in the Ethics Law. 2. Pursuant to Section 4 of the Ethics Law, Respondent is required to file the Statement of Financial Interests each year Respondent holds the above position and the year after leaving said position. 3. Respondent was required by the Ethics Law to file a Statement of Financial Interests for calendar year 1990 with the State Ethics Commission and the Governor's Office of Administration, which Statement of Financial Interests was due no later than May 1, 1991. 4. Respondent failed to comply with the requirements of Sections 4 and 5 of the Ethics Law when Respondent failed to timely file a Statement of Financial Interests for calendar year 1990 with the State Ethics Commission and the Governor's Office of Administration. 5. Notice of the delinquency of Respondent's Statement of Financial Interests for calendar year 1990 was previously served upon Respondent in accordance with Section 7(5) of the Ethics Law, 65 P.S. 5407(5). 6. Respondent failed to remedy the delinquency of Respondent's Statement of Financial Interests for calendar year 1990, although Respondent was given fourteen (14) days from the date of the aforesaid Notice letter in which to do so. 7. Following the issuance of the Order to Show Cause, Respondent filed a Statement of Financial Interests for calendar year Clifford E. DeBaptiste Juno 29, 1992 Page 7 1990 dated April 13, 1992, received by this Commission on April 13, 1992. The said Statement of Financial Interests may be technically deficient as noted above in that block eleven does not include as reportable sources of income certain funeral homes listed elsewhere in the form. 8. Based upon the totality of the circumstances in this case, a total civil penalty in the amount of One Hundred Fifty Dollars ($150.00) shall be levied against Respondent in this matter. 9. If Respondent has failed to disclose in block 11 of his Statement of Financial Interests for calendar year 1990 all reportable sources of income, Respondent is directed to file an amended Statement of Financial Interests for calendar year 1990 with the State Ethics Commission and the Governor's Office of Administration, correcting all such technical deficiencies and providing full financial disclosure as required by the Ethics Law and signed under oath or equivalent affirmation. IN RE: CLIFFORD E. DEBAPTISTE : File Docket: 92 -019 -P Date Decided: Jpne ;3. 1992 Respondent Date Mailed: June 29. 192 ORDER NO, 027.S 1. Clifford E. DeBaptiste, as a Member of the State Board of Funeral Directors, failed to comply with Sections 4 and 5 of the Ethics Law, 65 P.S. 55404, 405, by failing to timely file a Statement of Financial Interests for calendar year 1990 with the State Ethics Commission and the Governor's Office of Administration. 2. Based upon the circumstances of this case, a total civil penalty in the amount of One Hundred Fifty Dollars ($150.00) is hereby levied against Respondent Clifford E. DeBaptiste. Respondent is ordered to pay the above civil penalty in the total amount of $150.00 within thirty days of the issuance of this Order, by forwarding a check to this Commission payable to the Commonwealth of Pennsylvania for deposit in the State Treasury. 3. If Respondent Clifford E. DeBaptiste has failed to disclose in block eleven of his Statement of Financial Interests for calendar year 1990 all reportable sources of income as discussed in Finding 8 and the Discussion above, Respondent Clifford E. DeBaptiste is directed within 30 days of issuance of this Order to file an amended Statement of Financial Interests for calendar year 1990 with the State Ethics Commission and the Governor's Office of Administration, correcting all such technical deficiencies and providing full financial disclosure as required by the Ethics Law. 4. Failure to comply with any provision of this Order will result in the initiation of an appropriate enforcement action. BY THE COMMISSION, James M. Howley,