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HomeMy WebLinkAbout1097 SpockIn Re: Michael Spock STATE ET} -TICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Julius Uehlein Louis W. Fryman John J. Bolger Frank M. Brown Susan Mosites Bicket 98- 032 -C2 Order No.1097 12/15/98 12/29/98 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 gt., by the above - named. Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was not filed and a hearing was waived. The record is complete. A Consent Agreement was submitted by the parties to the Commission for consideration which was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11, Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Spock, 98- 032 -C2 December 18, 1998 Page 2 1. ALLEGATION: That Michael Spock, a public official /public employee, in his capacity as a Code Enforcement Officer for Freeland Borough, Luzerne County, violated Sections 4(a), 4(d), and 5(a), 65 P.S. §§404(a), 404(d), and 405(a) of the State Ethics Law (Act 9 of 1989) when he failed to file Statements of Financial Interests with the governing authority of the political subdivision by which he was employed or within which he was appointed no later than May 1st of each year that he held such a position by failing to file Statements of Financial Interests for the 1994, 1995, and 1996 calendar years; and when he backdated Statements of Financial Interests for the 1994, 1995, and 1996 calendar years. IL FINDINGS: 1 Michael Spock served as the Code Enforcement Officer of Freeland Borough Council from September 7, 1993, until June 1, 1998. a. The Borough's position of Code Enforcement Officer is part-time. 2. Professionally Spock is involved with B &B Excavating, R.D. #1, Box 410,. Freeland, PA 18224 in a partnership arrangement with his brother Robert Spock. 3. Statements of Financial Interests for Freeland Borough Officials are maintained by Borough Secretary/Treasurer Marion Sunderman in the Borough Office. a. Sunderman annually made blank Statement of Financial Interest forms available to borough officials. b. Sunderman collects completed forms in a file basket on her desk. 4. Statements of Financial Interests forms submitted by borough officials to Sunderman are not date and time stamped or logged in any manner. Spock, in his official capacity as Freeland Borough Code Enforcement Officer did not file Statements of Financial. Interests for the 1994, 1995 and 1996 calendar years by May 1st of each year. Spock was not advised by borough officials that he was required to annually file a Statement of Financial Interests form. 7. Spock filed four Statements of Financial Interests during 1998 as a result of requests for them by the Borough Secretary/Treasurer and citizens. 8. Statements of Financial Interests on file with Freeland Borough included the following filings by Spock: a. Calendar Year: Filed: Position: Real Estate Interests: Creditors: Direct/indirect Income: Office, Directorship or Not Listed 03/06/98 on SEC Form 1/98 Not Listed 700 Foster Street, Freeland, PA 18224 PNC Bank, no rate listed None Spock, 98- 032 -C2 December 16, 1998 Page 3 Employment in any Business: All Other Financial Interests: b. Calendar Year: Filed: Position: Real Estate Interests: Creditors: • Direct /indirect Income: Office, Directorship or Employment in any Business: All Other Financial Interests: c. Calendar Year: Filed: Position: Real Estate Interests: Creditors: Direct /indirect Income: Office, Directorship or Employment in any Business: All Other Financial Interests: d. Calendar Year: Filed: Position: Real Estate Interests: Creditors: Direct /indirect Income: Office, Directorship or Employment in any Business: All Other Financial Interests: B & B Excavating Co., Freeland; no position listed None Not Listed 03/15/97 on SEC Form 1/98 Not Listed 700 Foster Street, Freeland, PA PNC Bank, no rate listed None B & B Excavating, Freeland, PA; no position listed None Not Listed 03/15/96 on SEC Form 1/98 Not Listed 700 Foster Street, Freeland, PA PNC Bank, no rate listed None B & B Excavating, Freeland, PA; interest held not listed None Not Listed 03/20/95 on SEC Form 1/98 Not Listed 700 Foster Street, Freeland, PA PNC Bank, no rate listed None B & B Excavating, Freeland, PA; no position listed None 9. Spock filed Statements of Financial Interests for calendar years 1994, 1995 and 1996 on Statement of Financial Interest forms which were revised and printed in January, 1998. a. These forms were not available for completion until January, 1998. 10. The forms filed by Spock which listed dates of 03/20/95, 03/15/96 and 03/15/97 were back -dated to give the impression that they were timely filed on each of the respective dates. a. The form dated 03 /06/98 is for the 1997 calendar year. 11. On the back -dated forms listed in Finding No. 14 [sic], the following deficiencies are noted: Spock, 98- 032 -C2 December 18, 1998 Page 4 a. Spock failed to list his public his public position as Code Enforcement Officer and the calendar year on all four (4) forms. b. Spock failed to list B &B Excavating and Freeland Borough as sources of income for calendar years 1995, 1996 and 1997. c. Spock failed to list B &B Ex cavating as a source of income for calendar year 1994. d. Spock failed to disclose that he is a partner in B &B Excavating on all four (4) forms. e. Spock identified B &B Excavating as a business transferred to a member of his immediate family on his Statement of Financial Interests dated March 15, 1996. No business transfer occurred. III. DISCUSSION: At all times relevant to this matter, the Respondent, Michael Spock, hereinafter Spock, has been a public official /employee subject to the provisions of the Public Official and Employee. Ethics Act ( "Ethics Act "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, t seq. /Act 93 of 1998, Chapter 11. The issue before us is whether Spock, as Code Enforcement Officer ( "CEO ") of Freeland Borough, Luzerne County, violated Sections 1104(a), 1104(d), and 1105(a) of the State Ethics Act (Act 93 of 1998, Chapter 11) by backdating and failing to timely file Statements of Financial Interests (SFI's) for the 1994, 1995, and 1996 calendar years. Section 1104. Statement of financial interests required to be filed (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. Section 1104(a), Chapter 11, Act 93 of 1998. Soock, 98- 032 -C2 December 16, 1998 Page 5 Section 1 104(a) of the Ethics Law quoted above requires that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Section 1 104(d) of the Ethics Law provides: Section 1 104. Statement of financial interests required to be filed. (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. Section 1104(d), Chapter 11, Act 93 of 1998. Section 1105(a) of the Ethics Law provides that a person must, to the best of his /her knowledge, completely disclose all requested information on his /her SFI: Section 1105. Statement of financial interests (a) The statement of financial interests filed pursuant to this act shall be on a form prescribed by the commission. All information requested on the statement shall be provided to the best of the knowledge, information and belief of the person required to file and shall be signed under oath or equivalent affirmation. Section 1105(a), Chapter 11, Act 93 of 1998. Having noted the issues and applicable law, we shall now summarize the relevant facts. Spock served as the part -time Code Enforcement Officer ( "CEO ") of Freeland Borough ( "Borough ") from September 7, 1993 until June 1, 1998. In a private capacity, Spock is a partner with his brother, Robert Spock, in an excavating business, B &B Excavating ( "B &B "). The Freeland Borough Secretary/Treasurer, maintains Borough SFI forms, annually makes blank SFI forms available to Borough officials and collects the completed SFI forms, which are not date and time stamped or logged in any manner. Borough officials did not advise Spock that he was required to annually file SFI forms and he did not file SFI's for the 1994, 1995, and 1996 calendar years by May 1 of the respective following year. The 1994, 1995, and 1996 calendar year. SFI's filed by Spock ostensibly included the dates when the forms were filed, that is, March 20, 1995 March 15, 1996, and March 15 1997 respectively. The information that Spock listed on each SFI is detailed in Fact Finding 8. Spock filed the 1994, 1995, and 1996 calendar year SFI's on State Ethics Commission forms which were not available until January, 1998. The SFI's filed by Spock for 1994, 1995, and 1996 were not filed by May 1 of the following respective year, but were in fact filed after January, 1998. Spock, 98- 032 -C2 December 16, 1998 Page 6 Spock filed the SFI's as a result of requests by the Borough. Secretary/Treasurer and citizens. Spock's SFI's were not filed with Freeland Borough on the dates listed on the forms, which dates were chosen to give the impression of timely SFI filing. Spock filed an SFI for the 1997 calendar year on, March 6, 1998. Lastly, the following deficiencies or misstatements exist on the SFI forms filed by Spock: his public position as Code Enforcement Officer and the calendar year for all four years; his partnership in B &B for all four years; B &B and the Borough as sources of income for 1995, 1996, and 1997; B &B as a source of income for 1994; and the identification of B &B as a business transferred to a member of his immediate family on his SFI dated March 15, 1996, when no such business transfer occurred. Having summarized the above relevant facts, we must now determine whether the actions of Spock violated the above quoted Sections of the Ethics Law. As noted above, Section 1104(a) of the Ethics Law specifically requires that a public official file an SFI with the governing authority of the political subdivision no later than May 1 of each year in which he /she holds such position and the year after he /she leaves such position. The record in this case conclusively establishes that the SFI's filed by Spock were filed after the annual May 1 deadlines. Accordingly, violations of Section 1104(a) of the Ethics Law occurred when Spock failed to timely file SFI's as required by the Ethics Law and backdated the SFI's for those years. As to Section 1104(d), Spock performed duties and received compensation as a part -time CEO. However, Section 1104(d) specifically prohibits the continuation of duties and receipt of compensation unless the SFI has been filed as required by the Ethics Law. Since the SFI's were not so filed, violations of Section 1104(d) of the Ethics Law occurred when Spock failed to timely file SFI's for the calendar years 1994 through 1996. As to Section 1105(a), the information that Spock listed on the SFI's was incomplete as delineated above. Accordingly, violations of Section 1105(a) of the Ethics Law occurred when Spock filed deficient SFI's for the calendar years 1994 through 1996. The parties have entered into a Consent Agreement for: violations of Section 1104(a), 1104(d.) and 1105(a) for the calendar years 1994, 1995, and 1996; a payment by Spock in the amount of $150 for each of the calendar years 1994, 1995, and 1996, totaling $450, through this Commission to Freeland Borough; and the filing of amended SFI's for the 1994, 1995, 1996, and 1997 calendar years with Freeland Borough. The amended SFI's must contain: the income Spock received from. B &B Excavating and Freeland Borough; the disclosure of his partnership in B &B Excavating; and the listing of his public position as Code Enforcement Officer. Upon review, we accept the Consent Agreement and enter the Order below as per the terms agreed upon by the parties. Compliance with the foregoing will result in the closing of this case with no further action. Noncompliance will result in the institution of an order enforcement action. Lastly, as noted, the parties have filed a Stipulation of Findings and Consent Agreement which sets forth a proposed resolution of the allegations. We believe that the Consent Agreement is the proper disposition for this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Soock, 98-032-C2 December 16, 1998 Page 7 IV. CONCLUSIONS OF LAW: 1. Spock, as Code Enforcement Officer of Freeland Borough, Luzerne County, was a public official /employee subject to the provisions of Act 9 of 1989. 2. Spock violated Section 1104(a) of the Ethics Law, Act 93 of 1998, Chapter 11, when he back -dated and failed to timely file Statements of Financial Interests (SFI's) for calendar years 1994, 1995, and 1996. 3. Spock violated Section 1104(d) of the Ethics Law, Act 93 of 1998, Chapter 11, when he performed duties and received compensation as a Code Enforcement Officer but failed to timely file SFI's for calendar years 1994, 1995, and 1996. 4. Spock violated Section 1105(a) of the Ethics Law, Act 93 of 1998, Chapter 11, when he filed deficient SFI's by not listing all of the required information on the forms for the 1994, 1995, 1996, and 1997 calendar years. In Re: Michael Spock ORDER NO. 1097 File Docket: 98- 032 -C2 Date Decided: 12/15/98 Date Mailed: 12/29/98 1 Spock, as Code Enforcement Officer of Freeland Borough, Luzerne County, violated Section 1104(a) of the Ethics Law, Act 93 of 1998, Chapter 11, when he back -dated and failed to timely file Statements of Financial Interests (SFI's) for calendar years 1994, 1995, and 1996. 2. Spock violated Section 1104(d) of the Ethics Law, Act 93 of 1998, Chapter 11, when he performed duties and received compensation as a Code Enforcement Officer but failed to timely file SFI's for calendar years 1994, 1995, and 1996. Spock violated. Section 11 of the Ethics Law, Act 93 of 1998, Chapter 11, when he filed deficient SFI's by not listing all of the required information on the forms for the 1994, 1995, 1996, and 1997 calendar.. years. 4. Spock is directed to promptly file amended SFI's for the 1994, 1995, 1996, and 1997 calendar years with Freeland Borough, with one copy of each forwarded to this Commission for compliance verification. The SFI's must contain accurate current filing dates, and must reflect income received. from B &B Excavating and Freeland Borough; the disclosure of his partnership in B &B Excavating; and the listing of his public position as Code Enforcement Officer. 5. As per the Consent Agreement of the parties, Spock is directed to make payment in the amount of $450 through this Commission to Freeland Borough in a timely manner. Compliance with paragraphs 4 and 5 above will result in the closing of this case . with no further action; failure to comply with the above will result in the institution of an order enforcement action. BY THE COMMISSION, esYciAtisAu6 8.141_,1 DANEEN E. REESE, CHAIR