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HomeMy WebLinkAbout042-S PortIN RE: JOAN PORT Respondent 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 -071 -P Date Decided: December 10, 1992 Date Mailed: December 15, 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. §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 not filed and a hearing was deemed 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(b),(c). Joan Port December 15, 1992 Page 2 I. FINDINGS: 1. Respondent Joan Port is an adult individual who resides or maintains a mailing address at 1846 Zion Road, Bellefonte, Pennsylvania 16823. 2.. Respondent is now and at all times relevant to these proceedings has been an Auditor for Spring Township in Centre County, Pennsylvania. (a) Respondent specifically held the aforesaid position in 1990, 1991 and 1992. 3. Respondent did not timely file Statements of Financial Interests for calendar years 1989, 1990 and 1991 with Spring Township. 4. A Notice letter dated July 6, 1992 and a final Notice letter dated August 11, 1992 were served upon Respondent by this Commission. The said Notice letters stated in detail the specific allegations against Respondent concerning the delinquency of Respondent's Statements of Financial Interests for calendar years 1989, 1990 and 1991 and the penalties for failure to file or for filing a deficient Statement of Financial Interests. The said Notice letters provided Respondent an opportunity to avoid the institution of these civil penalty proceedings by filing accurate and complete Statements of Financial Interests for calendar years 1989, 1990 and 1991 within twenty (20) days of the dates of the respective Notice letters. (a) The records of the State Ethics Commission reflect that the aforesaid Notice letters were issued to Respondent at R.D. #5, Box 87, Bellefonte, Pennsylvania 16823. 5. Respondent did not file Statements of Financial Interests for calendar years 1989, 1990 and 1991 with Spring Township on or before the expiration of twenty days from the date of the said final Notice letter. 6. An Order to Show Cause was issued to Respondent in this matter on September 4, 1992. (a) The records of the State Ethics Commission reflect that the said Order to Show Cause was issued to Respondent at R.D. #5, Box 87, Bellefonte, Pennsylvania 16823. 7. On October 16, 1992, after the thirty -day period for responding to the Order to Show Cause had expired, the State Ethics Commission received the following documents submitted Joan Port December 15, 1992 Page 3 by Respondent: Petition to Respond to Order to Show Cause and Allegations Nunc Pro Tunc (hereinafter "Petition "); Response to Order to Show Cause and Allegations (hereinafter "Response "); and Statement of Respondent Joan Port (hereinafter "Statement "). 8. In support of her Petition, Respondent avers the following: (a) That Respondent received the Notice and Order to Show Cause, and subsequently contacted Assistant Counsel for the Commission on September 15, 1992 in a good faith effort to ascertain the nature of the aforesaid documents served upon her; (b) That after the conversation with Assistant Counsel, Respondent attempted to obtain the assistance of legal counsel without success, and was unable to secure the assistance of counsel until October 13, 1992, due to a delay in securing an appointment as well as her responsibilities to her family business; and (c) That Respondent has in good faith attempted to comply with the Order to Show Cause. 9. The Response and the Statement which Respondent asks this Commission to consider allege: (a) A denial of the mailing address used by the Commission and a proffered address of 1846 Zion Road, Bellefonte, Pennsylvania 16823; (b) An admission that Respondent failed to file Statements of Financial Interests as required by the Ethics Law for calendar years 1989, 1990 and 1991 with regard to her duties as an Auditor with the municipality of Spring Township, Centre County, Pennsylvania; (c) An admission that to the extent Respondent was lawfully required to file the said Statements of Financial Interests, Respondent failed to comply with Sections 4 and 5 of the Ethics Law; (d) That Respondent's failure to so comply was not willful, intentional or maliciously done; (e) That prior to receiving the Statement of Financial Interests forms from the Commission in the July 6 and August 11, 1992 Notice letters, Respondent had not received said forms from Spring Township; Joan Port December 15, 1992 Page 4 That other employees of the municipality have similarly not been provided with such forms such that Respondent avers that the failure to obtain these forms and to file them would be due in part to the municipality's omission to advise Respondent of her obligation to do so as well as to provide the necessary forms for completion; That Respondent was not aware of the existence of forms for the calendar years in question until Respondent's aforesaid discussions with Assistant Counsel for the Commission in September, 1992; (h) An admission that Respondent received the aforesaid Notice letters dated July 6 and August 11, 1992 and was served with Notice in accordance with Section 7(5) of the Ethics Law of the specific allegations against her and that she failed to prepare and file said forms; That although Respondent admits receiving the aforesaid Notices from this Commission, she did not understand the legal significance of these documents and due to omission in setting these documents aside, she did not pursue a detailed follow -up to these documents; That Respondent did not refuse to comply with the specific requirements of the Ethics Law, but instead did not understand the significance of the forms and failed to comply with the state laws and regulations; (k) A confirmation of Respondent's receipt of the Notice and Order to Show Cause subsequent to September 4, 1992, and Respondent's contact to Assistant Counsel for the Commission on September 15, 1992, in a good faith effort to understand and resolve this matter; (1) That although it may have been discussed with said Assistant Counsel, Respondent did not fully understand the significance of the Order to Show Cause and documents that had been provided and her obligation to consult an attorney to prepare and file a timely response to the allegations, but rather that Respondent believed that the matter could still be resolved through some informal means without the expense of an attorney; (m) Respondent's failure to respond in a timely fashion due to family business demands and her reservation about the expense of involving an attorney; (n) That when she realized the deadline for a response had passed, Respondent contacted her attorney; (f) (g) (i) (j) Joan Port December 15, 1992 Page 5 (o) Respondent's inability to secure an appointment with her attorney until October 13, 1992, being due in part to said attorney's schedule as well as the Columbus Day holiday on October 12; That Respondent now understands the requirements as explained by Assistant Counsel for the Commission as well as by Respondent's attorney; That Respondent has filed the required Statements of Financial Interests with the State Ethics Commission mailed through United Parcel Service on September 18, 1992, and October 12, 1992 respectively; and (r) That the aforesaid circumstances constitute mitigating circumstances. 10. As a matter of public record, Respondent filed Statements of Financial Interests for calendar years 1989, 1990 and 1991 after issuance of the Order to Show Cause. (a) The Statements of Financial Interests for calendar years 1989 and 1990 are dated October 8, 1992, and were received by this Commission on October 13, 1992. (b) The Statement of Financial Interests for calendar year 1991 is dated September 18, 1992, and was received by this Commission on September 22, 1992. (c) Blocks 13 and 15 of the Statement of Financial Interests for calendar year 1989 are incomplete. (d) Block 8 of the Statement of Financial Interests for calendar year 1990 is incomplete. II. DISCUSSION: Respondent is now and at all times relevant to these proceedings has been an Auditor for Spring Township in Centre County, Pennsylvania. Respondent specifically held the aforesaid position in 1990, 1991, and 1992. As an Auditor for Spring Township, 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 sect., and as such, Respondent is subject to the provisions of the Ethics Law. Pursuant to Section 4(a) of the Ethics Law, Respondent is required to file a Statement of Financial Interests for the preceding calendar year with Spring Township each year Respondent Joan Port December 15, 1992 Page 6 holds the above position and the year after Respondent leaves said position: (a) 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 P.S. 5404(a). Section 4(d) of the Ethics Law provides: (d) No public official shall be allowed to take the oath of office or enter or continue upon his duties, nor shall he receive compensation from public funds, unless he has filed a statement of financial interests as required by this act. 65 P.S. 5404(d). Before addressing the substantive merits of this case, Respondent's Petition by which she seeks to respond to the Order to Show Cause nunc pro tunc must first be addressed. In this regard, Respondent asks this Commission to grant her the opportunity to present for the Commission's consideration a Response to the Order to Show Cause and a Statement, despite the fact that Respondent failed to meet the deadline for doing so. In reviewing Respondent's arguments in support of her Petition, we are simply unpersuaded that there is any valid basis for granting Respondent's Petition. First, Respondent received the Notice and Order to Show Cause issued September 4, 1992. The Notice attached to the Order to Show Cause clearly sets forth the process and the deadline for filing an answer to the Order to Show Joan Port December 15, 1992 Page 7 Cause, and includes a recommendation that the documents be taken to an attorney at once. Second, Respondent contacted Assistant Counsel for the Commission "to ascertain the nature" of the Notice and Order to Show Cause on September 15, 1992 -- still twenty days before a response was due. According to the Commission file, during the course of this telephone conversation, it was again suggested to Respondent that she consult with an attorney in this matter. It is clear that Respondent had an ample opportunity to respond to the Order to Show Cause, whether she chose to retain counsel or not. Respondent's mere, general assertion that she attempted but was unable to secure the assistance of counsel until October 13, 1992, due to an unspecified "delay" in securing an appointment as well as unspecified responsibilities to her family business, fails to present the sort of exigent factual circumstances which could justify a request to submit a response nunc pro tunc. Any delay in securing legal representation and /or responding to the Order to Show Cause was the fault of Respondent. Respondent's Petition to Respond to Order to Show Cause and Allegations Nunc Pro Tunc is denied. In passing, we note that although the Petition has been denied on its own averments, we are concerned that Port's proffered Statement appears to contradict her Petition in that it indicates that Port did not even contact her attorney until after the deadline for filing a response to the Order to Show Cause had already passed. Turning now to the substantive merits of this case, factually, Respondent failed to timely file Statements of Financial Interests for calendar years 1989, 1990 and 1991 with Spring Township, 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. The maximum penalty payable under this paragraph is $250. 65 P.S. 5409(f). An application of Section 9(f) to this case establishes that this Commission has the discretion to levy a maximum civil penalty Joan Port December 15, 1992 Page 8 against the Respondent for each such delinquent or deficient Statement of Financial Interests. The prerequisite service of a Notice letter in accordance with Section 7(5) was satisfied. Furthermore, upon being notified of the above transgressions, Respondent did not remedy Respondent's failure to comply with the Ethics Law, although she was given until the expiration of twenty days from the date of the final Notice letter in which to comply so as to avoid the institution of these formal proceedings. 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 her. Respondent did not timely file an answer to the Order to Show Cause. There is nothing of record which would constitute a defense or excuse for Respondent's failure to comply with the Ethics Law. Respondent has failed to show cause why a civil penalty should not be levied against her in this matter. It is noted that following the issuance of the Order to Show Cause, Respondent filed Statements of Financial Interests for calendar years 1989, 1990 and 1991, as noted in Finding 11 above. The aforesaid Statements of Financial Interests for calendar years 1989 and 1990 are deficient. Blocks 13 and 15 on the Statement of Financial Interests for calendar year 1989 are incomplete. Block 8 on the Statement of Financial Interests for calendar year 1990 is incomplete. Based upon the totality of circumstances in this case, this Commission would have the discretion to assess three maximum civil penalties against Respondent, for total civil penalty liability of $750.00. However, given that Respondent does not have a history of prior civil penalty proceedings with this Commission, we have determined that an appropriate exercise of our discretion in this case would be to assess a lesser civil penalty. We hereby levy a civil penalty against Respondent Joan Port in the total amount of $250.00. Respondent shall be ordered to file amended, complete and accurate Statements of Financial Interests for calendar years 1989 and 1990. III. CONCLUSIONS OF LAW: 1. Respondent Joan Port, as an Auditor for Spring Township in Centre County, Pennsylvania is now and at all times relevant to these proceedings has been a "public official" subject to the provisions of the Ethics Law, Act 9 of 1989, 65 P.S. S401 et sea. Joan Port December 15, 1992 Page 9 2. Respondent's Petition to Respond to Order to Show Cause and Allegations Nunc Pro Tunc is denied. 3. Respondent failed to comply with Sections 4 and 5 of the Ethics Law when Respondent failed to timely file Statements of Financial Interests for calendar years 1989, 1990 and 1991 with Spring Township. 4. Notice of the delinquency of Respondent's Statements of Financial Interests for calendar years 1989, 1990 and 1991 was previously served upon Respondent in accordance with Section 7(5) of the Ethics Law, 65 P.S. S407(5). 5. Based upon the totality of the circumstances in this case, a civil penalty is warranted. IN RE: JOAN PORT Respondent File Docket: 92 -071 -P Date Decided: December 10, 1992 Date Mailed: December 15, 1992 ORDER NO. 042 - 1. Respondent Joan Port's Petition to Respond to Order to Show Cause and Allegations Nunc Pro Tunc is denied. 2. Joan Port, as an Auditor for Spring Township in Centre County, Pennsylvania failed to comply with Sections 4 and 5 of the Ethics Law, 65 P.S. SS404, 405, by failing to timely file Statements of Financial Interests for calendar years 1989, 1990 and 1991 with Spring Township. 3. Based upon the circumstances of this case, a civil penalty is hereby levied against Respondent Joan Port in the total amount of $250.00. 4. Respondent Joan Port is ordered to pay the above civil penalty in the total amount of $250.00 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. 5. Respondent Joan Port is directed within 30 days of issuance of this Order to file amended, complete and accurate Statements of Financial Interests for calendar years 1989 and 1990 with Spring Township, providing full financial disclosure as required by the Ethics Law, and to forward copies of same to this Commission at the following address to evidence compliance: State Ethics Commission 309 Finance Building P.O. Box 11470 Harrisburg, PA 17108 -1470 Attention: Robin M. Hittie, Assistant Counsel 6. 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,