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HomeMy WebLinkAbout046-S WhitesellSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 IN RE: WILLIAM E. WHITESELL : File Docket: 92 -052 -P Date Decided: February 16, 1993 Respondent : Date Mailed: February 19, 1993 Before: 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 "ma. 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 and a letter response were 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). William E. Whitesell February 19, 1993 Page 2 I. FINDINGS A. PLEADINGS: 1. Respondent William E. Whitesell is an adult individual who resides or maintains a mailing address at 580 North School Lane, Lancaster, Pennsylvania 17603. 2. Respondent is now and at all times relevant to these proceedings has been a Member of the State Board of Certified Real Estate Appraisers. (a) Respondent specifically held the aforesaid position in 1991. 3. The records of the State Ethics Commission indicate that Respondent did not file a Statement of Financial Interests for calendar year ffice of Administration E on or before May 1, and 9 Gov (a) Respondent denies that he has failed, to file the aforesaid form. (b) Respondent believes that he filed the Statement of Financial Interests for calendar year 1990, although he did not retain a copy. (c) Respondent denies that he has not anything h t to di in t his matter or that he does requested. 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. (a) Respondent did not receive the Notice letter of June 18, 1991 and states that such a letter would have gotten his attention. (b) Respondent denies that he has failed and refused to file a Statement or that he has ever knowingly failed to file anything which this Commission has asked him to file. 5. Respondent denies committing the alleged violation. William E. Whitesell February 19, 1993 Page 3 (a) Respondent notes his voluntary public service on the Board. (b) Respondent states his willingness to file new forms. 6. Respondent states that the following are mitigating circumstances. (a) Respondent believes he filed the form. (b) To his knowledge, Respondent has never been served any letter suggesting that he did not conform to reporting requirements. (c) If Respondent had been served with such a letter, he would have responded. B. TESTIMONY: 7. Laura L. Myers is employed by the State Ethics Commission as an Administrative Officer. (a) Myers' duties as Administrative Officer include the Statement of Financial Interests process as well as having general custody of the records of the State Ethics Commission. (b) The Respondent is on the State Ethics Commission's list of non - filers for calendar year 1990. 8. Respondent William E. Whitesell is the Stager Professor of Economics at Franklin and Marshall College, and a former Secretary of Banking for the Commonwealth of Pennsylvania. (a) For many years, Respondent has been a regulator, with the Federal Reserve System, the Comptroller of the Currency, the Administrator of National Banks, and as Secretary of Banking. (b) Respondent has no objection to complying with any requirement for financial disclosure. (c) Respondent believes that he filed and mailed his Statement of Financial Interests for calendar year 1990 to Harrisburg, within the appropriate time frame. (1) Respondent's belief that he previously filed the 1990 calendar year form is based upon his recollection that on that particular form, he disclosed receiving a certain financial gift from William E. Whitesell February 19, 1993 Page 4 (d) Respondent has not been able to find a record of his filing but did not see a need to save a copy of the form. (1) Respondent keeps records of correspondence on computer disks, but any record of any such correspondence relating to this matter was erased or scrambled when Respondent transferred his records to new disks for a new computer. (e) The Order to Show Cause was the first notification Respondent received that his form had not been received by this Commission. (1) (3) family members even though he was not required to list it. Respondent and his wife review and sort all mail received at the home address, with all mail from Harrisburg being given to Respondent. (2) On some occasions, items which have been mailed to Respondent at said address have not received. Respondent did not receive the prior Notice letter issued by this Commission advising him that he had not filed the requisite form. (4) Respondent states that he would have noticed such a letter right away and would have done something about it. C. EXHIBITS: 9. Based upon a diligent and thorough examination of the official records of the State Ethics Commission, no Statement of Financial Interests for calendar year 1990 was received from William E. Whitesell for service as a Member of the State Board of Certified Real Estate Appraisers, on or before the close of office hours on May 1, 1991, nor was any Statement of Financial Interests for calendar year 1990 subsequently received from William E. Whitesell bearing an official United States postmark of on or before May 1, 1991. 10. A Statement of Financial Interests dated May, 11, 1992, for calendar year 1990 was received from William E. Whitesell on May 13, 1992. III. DISCUSSION: Respondent is now and at all times relevant to these William E. Whitesell February 19, 1993 Page 5 proceedings has been a Member of the State Board of Certified Real Estate Appraisers. Respondent specifically held the aforesaid position in 1991. As a Member of the State Board of Certified Real Estate Appraisers, Respondent is a "public official" as that term is defined under the Public Official and Employee Ethics Law ( "Ethics Law ") , 65 P.S. §401, et se q., , and as such, Respondent is 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. § §404,405. 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 service of a Notice letter in accordance with Section 7(5) was met. Although the records of the State Ethics 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 credible that: Respondent and his wife review and sort each item of mail received at his home, with all mail from Harrisburg going to him; that he did not receive any Notice prior to the Order to Show Cause; that if he had received a Notice letter, he would have acted upon it; and that there have been occasions where items mailed to Respondent's home address have not 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 filed a Statement of Financial Interests dated May 11, 1992 for calendar year 1990. William E. Whitesell February 19, 1993 Page 6 Based upon the totality of circumstances in'this case, no civil penalty shall be levied in this case. III. CONCLUSIONS OF LAW: 1. Respondent William E. Whitesell is now and at all times relevant to these proceedings has been a Member of the State Board of Certified Real Estate Appraisers and as such Respondent is 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: WILLIAM E. WHITESELL File Docket: 92 -052 -P Date Decided: February 16, 1993 Respondent Date Mailed: Februa 1 1993 ORDER NO. 046 -S 1. William E. Whitesell, as a Member of served with Board of Certified Real Estate Appraisers, was of the delinquency of his Statement of Financial Interests for calendar year der Section 9 (f) sof prerequisite he the Lawo levying a penalty under Based upon the circumstances of this case, no civil penalty shall be levied against Respondent in this matter. BY THE COMMISSION, Commissioner Austin M. not ded at the hearing as decision of this case be cause he presided Commissioner and recused himself.