HomeMy WebLinkAbout036-S FailIN RE: FRANK M. FAIL
Respondent
STATE ETHICS COMMISSION
309 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
Before: James M. Howley, Chair
Daneen E. Reese, Vice Chair
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
File Docket: 92 -021 -P
Date Decided: September 15, 1992
Date Mailed: September 18, 19
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. A formal answer was not filed but a letter
response was received. 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 SS2.38(b),(c).
Frank M. Fail
September 18, 1992
Page 2
I. FINDINGS:
1. Respondent Frank M. Fail is an adult individual who resides or
maintains a mailing address at 800 Delaware Avenue, Scottdale,
Pennsylvania 15683.
2. Respondent is now and at all times relevant to these
proceedings has been a Member of the Westmoreland County Board
of Assistance.
(a) Respondent has been a Member of the Westmoreland County
Board of Assistance for more than ten years.
(b) Respondent specifically held the aforesaid position in
1991.
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 states that having been a Member of the
Westmoreland County Board of Assistance for more than ten
years he has never failed to file the Statements of
Financial Interests.
(b) Respondent states that the forms requesting the financial
reports were sent to his daughter's residence at 2204
Cowling Road.
(c) Respondent states that he vaguely remembers receiving the
forms to be filed, but due to certain serious health
problems requiring that he undergo many tests,
treatments, and finally radical surgery followed by more
tests and treatments, the request was overlooked.
(d) Respondent states that there was no intention to avoid
the financial disclosure.
4. A Notice letter dated June 18, 1991 was issued to 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.
Frank M. Fail
September 18, 1992
Page 3
(a) The Notice letter was incorrectly addressed to 2204
Cowling Road, Scottdale, Pennsylvania 15683.
(b) Respondent states that the above address is his
daughter's residence.
(c) Respondent states that his home address is 800 Delaware
Avenue, Scottdale, Pennsylvania 15683.
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. As a matter of public record, Respondent filed a Statement of
Financial Interests for calendar year 1990 after issuance of
the Order to Show Cause which Statement of Financial Interests
is dated April 28, 1992 and was received by this Commission on
May 5, 1992.
II. DISCUSSION:
Respondent is now and at all times relevant to these
proceedings has been a Member of the Westmoreland County Board of
Assistance. Respondent specifically held the aforesaid position in
1991.
As a Member of the Westmoreland County Board of Assistance,
Respondent is a "public official" as that term is defined under the
Public Official and Employee Ethics Law ( "Ethics Law "), 65 P.S.
S401, et seg., and as such, Respondent is subject to the provisions
of the Ethics Law.
Factually, 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, which
constitutes a failure to comply with Sections 4 and 5 of the Ethics
Law. 65 P.S. $5404,405.
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.
Frank M. Fail
September 18, 1992
Page 4
The maximum penalty payable under this paragraph is $250.
65 P.S. 5409(f).
Respondent states that the forms requesting the financial
reports were sent to his daughter's residence at 2204 Cowling Road.
Respondent states that he vaguely remembers receiving those forms,
but that due to his serious illness at the time, which required
many tests, treatments, and ultimately radical surgery followed by
more tests and treatments, the request to file the form was
overlooked. Respondent states that there was no intention of
avoiding the financial disclosure. Respondent has additionally
noted that he has served as a Member of the Westmoreland County
Board of Assistance for more than ten years and has never failed to
file the Statement of Financial Interests.
While Respondent has admitted receiving the forms requesting
that he file the Statement of Financial Interests for calendar year
1990, it is not clear whether Respondent ever received the formal
Notice letter issued to him pursuant to Section 7(5) of the Ethics
Law. 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. 5409(f). The said Notice
letter and the Order to Show Cause were issued to Respondent at an
incorrect address, specifically 2204 Cowling Road, Scottdale,
Pennsylvania 15683, which appears to be Respondent's daughter's
residence rather than his own home address. Respondent's prior
Statements of Financial Interests, as a matter of public record, do.
indicate the 800 Delaware Avenue address. Although Respondent
undoubtedly received the Order to Show Cause, as evidenced by his
letter responding to same, it is likely that Respondent may not
have received the required Notice letter.
We would further note that following the issuance of the Order
to Show Cause, Respondent filed a Statement of Financial Interests
for calendar year 1990, dated April 28, 1992, and received by this
Commission on May 5, 1992.
Based upon the totality of circumstances in this case, no
civil penalty shall be levied in this case.
III. CONCLUSIONS OF LAW:
1. Respondent Frank M. Fail is now and at all times relevant to
these proceedings has been a Member of the Westmoreland County
Board of Assistance and as such Respondent is a "public
official" subject to the provisions of the Ethics Law, Act 9
of 1989.
2. Respondent failed to comply with the requirements of Sections
Frank M. Fail
September 18, 1992
Page 5
•
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.
Respondent was not properly served with notice of the
delinquency of Respondent's Statement of Financial Interests
for calendar year 1990, which is a prerequisite to levying a
civil penalty under Section 9(f) of the Ethics Law.
4. Based upon the totality of the circumstances in this case, a
civil penalty is not warranted.
IN RE: FRANK M. FAIL
Respondent
File Docket: 92 -021 -P
Date Decided: September 15. 1992
Date Mailed: September 1$, 1992
ORDER NO. 036 -S
1. Frank M. Fail, as a Member of the Westmoreland County Board of
Assistance, failed to comply with Sections 4 and 5 of the
Ethics Law, 65 P.S. SS404, 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, no civil penalty
shall be levied against Respondent in this matter.
BY THE COMMISSION,
am H,oWre"y,