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HomeMy WebLinkAbout038-S SpicerIN RE: RITA M. SPICER Respondent r STATE ETHICS COMMISSION 308 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 -046 -P : Date Decided: September 15, 1992 Date Mailed: September 18, 1992 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. 5401 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). Rita M. Spicer September 18, 1992 Page 2 I. FINDINGS: 1. Respondent Rita M. Spicer is an adult individual who presently resides or maintains a mailing address at 36 Latham Park, Melrose, Pennsylvania 19126. (a) As a matter of public record, Respondent listed her address as 7108 Germantown Avenue, Philadelphia, Pennsylvania 19119 on a Statement of Financial Interests dated January 12, 1988, and received by this Commission on January 19, 1988. (b) Respondent states that she does own a business located at 7108 Germantown Avenue, Philadelphia, Pennsylvania 19119. (c) Following the issuance of the Order to Show Cause, Respondent supplied the Commission with the aforesaid new mailing address at 36 Latham Park, Melrose, Pennsylvania 19126. 2. Respondent is now and at all times relevant to these proceedings has been a Member of the State Board of Cosmetology. (a) 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 to the best of her knowledge she has complied with filling out and returning every form she has received. (b) Respondent states that she is not sure why she has not received the forms in question, but states the possibilities of misplacement, loss, or mailing to an old address. (c) Respondent states that it is not her intention to not file properly. 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. Rita M. Spicer September 18, 1992 Page 3 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 states that until receiving the Order to Show Cause issued May 1, 1992, she was unaware that she was not current in filing her financial disclosure. (b) The aforesaid Notice letter as well as the Order to Show Cause in this matter were issued to Respondent at 7108 Germantown Avenue, Philadelphia, Pennsylvania 19119. (c) While acknowledging that she does own a business at the 7108 Germantown Avenue address, Respondent states that she has been "out sick" since March of 1989 due to an accident. (d) Respondent that she has mostly had to rely upon others to give her the mail. Respondent states that she moved in the last year which might also account for some of "the problem." Respondent states that she informed the Board where to send her mail, but that some of it is still going to other locations. (e) (f 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 June 10, 1992, and was received by this Commission on June 18, 1992. (a) Block 10 of said Statement of Financial Interests does not disclose the addresses or applicable interest rates for the creditors listed. (b) Block 15 of said form is not completed in any way whatsoever but is left blank. (c) Block 16 of said form is not completed and is left blank, other than that a date has been indicated. Rita M. Spicer September 18, 1992 Page 4 II. DISCUSSION: Respondent is now and at all times relevant to these proceedings has been a Member of the State Board of Cosmetology. Respondent specifically held the aforesaid position in 1991. As a Member of the State toard of Cosmetology, Respondent is a "public official" as that term is defined under the Public Official and Employee Ethics Law ( "Ethics Law "), 65 P.S. 5401, et eeq., 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. 55404,405. 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 Financial Interests for calendar year 1990. The prerequisite service of a Notice letter in accordance with Section 7(5) was satisfied. The Notice letter and the Order to Show Cause were issued to Respondent at 7108 Germantown Avenue, Philadelphia, Pennsylvania 19119. As a matter of public record, the aforesaid address was listed by Respondent on her prior Statement of Financial Interests dated January 12, 1988, and received by this Commission on January 19, 1988. Respondent admits that she does own a business located at the said address. Service of the Notice letter upon the Respondent at her business address is proper and would not be invalidated by a change of residence, illness, or private arrangements to receive mail properly delivered. Furthermore, it is clear that Respondent received the Order to Show Cause issued to the 7108 Germantown Avenue business Rita M. Spicer September 18, 1992 Page 5 address, as evidenced by her letter responding to same. 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 did not file an Answer to the Order to Show Cause, but she did submit a letter response. Respondent's letter response fails to show cause why a civil penalty should not be levied against Respondent in this matter. Respondent's statement that to the best of her knowledge she has complied with filling out and returning every form she has received is simply insufficient, in and of itself, to overcome the status of the public records of this Commission which establish the delinquency of Respondent's Statement of Financial Interests for calendar year 1990. Respondent's statement that it was not her intention to fail to file properly is not a defense. Intent is not a requisite element for a finding of a violation of the Ethics Law. See, Yacobet v. Com., State Ethics Com'n., 531 A. 2d 536 (1987) . However, Respondent's lack of intent to fail to comply with the Ethics Law and her lengthy illness causing her to be absent from her place of business constitute mitigating circumstances which shall be considered in determining the amount of the civil penalty to be levied against her. Respondent's move during the last year is not a mitigating circumstance because Respondent continues to own a business at the address used in the Notice letter and Order to Show Cause. Respondent's stated reliance upon others to give her the mail shall not be considered a mitigating circumstance because we are not persuaded that such reliance could be justified under the circumstances given the availability of forwarding services by the United States Postal Service. We would additionally note that following the issuance of the Order to Show Cause, Respondent filed a Statement of Financial Interests dated June 10, 1992 for calendar year 1990, and received by this Commission on June 18, 1992. The Statement of Financial Interests is technically deficient in Block 10 where the addresses and applicable interests rates for the creditors listed have not been disclosed, and in Blocks 15 and 16 which were not completed. Based upon the totality of circumstances in this case, we hereby levy one civil penalty against Respondent Rita M. Spicer in the total amount of $1.00. 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 Rita M. Spicer September 18, 1992 Page 6 case would be to assess a nominal penalty in the total amount of $1.00. Respondent shall be ordered to file an amended, complete and accurate Statement of Financial Interests for calendar. year 1990. III. CONCLUSIONS OF LAW: 1. Respondent Rita M. Spicer is now and at all times relevant to these proceedings has been a Member of the State Board of Cosmetology 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 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.. 3. 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. §407(5). 4. Respondent's Statement of Financial Interests for calendar year 1990 dated June 10, 1992, and received by this Commission on June 18, 1992, is technically deficient. IN RE: RITA M. SPICER Respondent File Docket: 92 -046 -P Date Decided: September 15, 1992 Date Mailed: September 18, 199; ORDER NO. 038 -S 1. Rita M. Spicer, as a Member of the State Board of Cosmetology, 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, a nominal penalty in the amount of $1.00 is hereby levied against Respondent Rita M. Spicer. Respondent is ordered to pay the above penalty-in the total amount of $1.00 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. Respondent Rita M. Spicer is directed within 30 days of issuance of this Order to file an amended, complete and accurate Statement of Financial Interests for calendar year 1990 with the State Ethics Commission and the Governor's Office of Administration, correcting all technical deficiencies noted above 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, Jame . Howley, Chair Commissioners Austin M. Lee and Allan M. Kluger dissent as to the imposition of merely a nominal penalty.