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HomeMy WebLinkAbout045-S FerrettiBefore: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 IN RE: JOHN M. FERRETTI, II : File Docket: 92 -022 -P : Date Decided: February 16, 1993 Respondent : Date Mailed: February 19, 1993 James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger Joseph W. Marshall, III 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 sea. 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 requested. A hearing was held on November 5, 1992. 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 §S2.38(b),(c). John M. Ferretti, II February 19, 1993 Page 2 I. FINDINGS: A. PLEADINGS: 1. Respondent John M. Ferretti, II is an adult individual who resides or maintains a mailing address at 1237 St. Marys Drive, Erie, Pennsylvania 16509. 2. At all times relevant to these proceedings, Respondent has been a Member of the State Board of Podiatry. (a) Respondent specifically held the aforesaid position in 1991. (b) Respondent resigned from the State Board of Podiatry by letter dated July 11, 1991 to the Honorable Robert P. Casey, Governor of the Commonwealth of Pennsylvania. 3. The public records of the State Ethics Commission reflect that 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 he provided full financial disclosure as required by the Ethics Law in each year that he was furnished with the Statement of Financial Interests form. (b) Respondent alleges that the Statement of Financial Interests for calendar year 1990 was filed in the event it was provided to Respondent by the State Board of Podiatry and /or this Commission for filing at the appropriate times. (c) Respondent alleges that the State Board of Podiatry and/ or the State Ethics Commission failed to send the appropriate Statement of Financial Interests at the appropriate time for completion and filing by the Respondent. 4. The records of the State Ethics Commission indicate that a letter dated June 18, 1991, was issued to the Respondent as service of Notice in accordance with Section 7(5) of the Ethics Law of the specific allegations against Respondent concerning this matter. The said Notice letter provided Respondent an opportunity to avoid the institution of these civil penalty proceedings by filing a completed Statement of Financial Interests for calendar year 1990 within fourteen (14) days of the date of the Notice letter. John M. Ferretti, II February 19, 1993 Page 3 (a) Respondent did not receive the Notice letter dated June 18, 1991. (b) Respondent alleges that the State Board of Podiatry and /or the State Ethics Commission failed to send the appropriate Notice letter. 5. Respondent alleges that he should not be subject to any penalty for the alleged failure to file a Statement of Financial Interests for calendar year 1990 in that there is no violation of the State Ethics Law by him. 6. Respondent alleges the following as mitigating circumstances: (a) That Respondent was never served with the June 18, 1991 Notice letter; (b) That Respondent was never provided with a Statement of Financial Interests for filing in 1990, either by the State Board of Podiatry or the State Ethics Commission; (c) That Respondent's 8 -1/2 years of service on the State Board of Podiatry was without monetary compensation, only reimbursement for expenses up to $60.00 per day; (d) That Respondent resigned from the State Board of Podiatry on July 11, 1991, and is no longer subject to the provisions of the State Ethics Law or the State Ethics Commission; (e) That throughout his service with the State Board of Podiatry, the Respondent had no conflicts of interest and reported that accordingly on the Statement of Financial Interests as supplied to him by the State Board of Podiatry and /or the State Ethics Commission; and (f) Any violation would be a technical violation of the statute only and should be cured not by the imposition of any civil penalty, but by the authorization to file the appropriate Statement of Financial Interests. B. TESTIMONY: 7. Laura L. Myers is employed by the State Ethics Commission in the capacity of Administrative Officer. (a) Myers' duties include general oversight of the filing and issuance of Notices as to non - filing of Statements of Financial Interests. John M. Ferretti, II February 19, 1993 Page 4 (b) Respondent is on the State Ethics Commission's list of non - filers for calendar year 1990. 8. Respondent is a physician who serves as the Chief Executive Officer, Professional Director and Director of Medical Education of Mill Creek Community Hospital and is involved in numerous professional and community activities. (a) Respondent was appointed to two consecutive four -year terms of service on the State Board of Podiatry prior to his resignation on July 11, 1991. (b) Respondent states that to the best of his knowledge, all Statements of Financial Interests prior to the Statement in question for calendar year 1990 were submitted to the State Ethics Commission as required. (c) Following his receipt of the Order to Show Cause in this matter, Respondent filed a Statement of Financial Interests with the State Ethics Commission for calendar year 1990. (d) Respondent states that there was no change in his Statement of Financial Interests between his filing for calendar year 1989, dated July 24, 1990, and his filing dated April 27, 1992 (for calendar year 1990). (e) Respondent states that during his service on the State Board of Podiatry: (f) (1) He did not realize any personal financial gain by serving on the Board; (2) He did not permit any personal financial . interest to influence his decisions; (3) He administered his duties impartially and honestly; (4) He did not use that office for private pecuniary benefit for himself or any member of his family; (5) He did not use any information gained as a Member of the Board for any commercial purpose; and (6) He did not receive any honorarium as a result of said service. Respondent did not receive a letter from the Governor's Office of Administration with a blank Statement of John M. Ferretti, II February 19, 1993 Page 5 Financial Interests for calendar year 1990 on or about or shortly after March 15, 1991. (1) Respondent states that had he received such a letter from the Governor's Office of Administration, he would have followed his usual procedure for filing the Statement of Financial Interests. (g) Respondent did not receive the June 18, 1991 Notice letter signed by John Contino, Executive Director of the State Ethics Commission. (1) Respondent states that if he had received such a Notice letter, he would have followed his usual procedure for filing the Statement of Financial Interests. (h) Respondent states that he has nothing to gain by not filing the disclosure of financial interest. (i) Respondent has experienced deficiencies in mail delivery at his home address. (1) Respondent has often experienced such mail delivery deficiencies for mail from Harrisburg. (2) While serving on the Board, it was not unusual for Respondent to not receive packets that were sent to him. (3) During the last two years of his service on the Board, all packets from the Board were forwarded by overnight express to insure that Respondent was receiving them at his home. (4) Respondent personally opens all of his mail received at his home address. (5) Respondent states that he knows that he received the forms in prior years because they were filled out and his secretary retains copies of them. C. EXHIBITS: 9. Based upon a thorough examination of the official records of the State Ethics Commission, no Statement of Financial Interests for calendar year 1990 was received from Respondent for service as a Member of the State Board of Podiatry on or before the close of office hours on May 1, 1991, nor was any John M. Ferretti, II February 19, 1993 Page 6 such Statement of Financial Interests for calendar year 1990 subsequently received from Respondent bearing an official United States postmark of on or before May 1, 1991. 10. A Statement of Financial Interests for calendar year 1990, dated April 27, 1992, was received from Respondent under cover letter of his counsel dated May 1, 1992, on May 4, 1992. 11. By letter dated July 11, 1991, from Respondent to the Honorable Robert P. Casey, Governor, Respondent resigned as a Member of the State Board of Podiatry effective immediately. II. DISCUSSION: Respondent has been a Member of the State Board of Podiatry at all times relevant to these proceedings. Respondent specifically held the aforesaid position in 1991, having served on the Board for 8 -1/2 years continuously before his resignation of July 11, 1991. As a Member of the State Board of Podiatry, Respondent has at all times relevant to these proceedings been a "public official" as that term is defined under the Public Official and Employee Ethics Law ( "Ethics Law "), 65 P.S. S401, et sea., and as such, Respondent has at all times relevant to these proceedings been subject to the provisions of the Ethics Law. Factually, the records of the State Ethics Commission reflect that 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, as required by 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. S409(f). In this case, we are not satisfied that the prerequisite requirement for service of a Notice letter in accordance with Section 7(5) was met. Although the records of the State Ethics John M. Ferretti, 1I February 19, 1993 Page 7 Commission confirm that the Notice letter was mailed to Respondent, we conclude that Respondent did not receive the said Notice letter. We find Respondent to be quite credible in his testimony: that he did not receive the form to file from the Governor's Office of Administration; that he did not receive the Notice letter from this Commission; that he has experienced frequent mail delivery problems at his home address; that had he received the form and /or Notice letter, he would have followed his usual process for filing the Statement of Financial Interests form; and that there would have been no reason for him to not file the form for calendar year 1990 had the form and /or Notice letter been received. Having determined that the prerequisite service of Notice was not accomplished, no further issues need be addressed in this case. We would further note that following the issuance of the Order to Show Cause, Respondent has filed a Statement of Financial Interests dated April 27, 1992, for calendar year 1990. Based upon the totality of circumstances in this case, no civil penalty shall be levied in this case. III. CONCLUSIONS OF LAW: 1. Respondent John M. Ferretti was at all times relevant to these proceedings a Member of the State Board of Podiatry and as such Respondent was a "public official" subject to the provisions of the Ethics Law, Act 9 of 1989. 2. Respondent was not 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. 3. Based upon the totality of the circumstances in this case, a civil penalty is not warranted. IN RE: JOHN M. FERRETTI, II File Docket: 92 -022 -P • Date Decided: February 16, 1993 Respondent : Date Mailed: February 19, 1993 ORDER NO. 045 -S 1. John M. Ferretti, II, as a Member of the State Board of Podiatry, was not served with Notice of the delinquency of his 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. 2. Based upon the circumstances of this case no civil penalty shall be levied against Respondent in this matter. BY THE COMMISSION, James M. Howley, Commissioner Austin M. Lee did not participate in the final decision of this case because he presided at the hearing as one Commissioner and recused himself.