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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,