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HomeMy WebLinkAbout737 ScanlanMr. James M. Scanlan c/o Joseph M. Fioravanti Curran, Winning & Fioravanti Attorneys at Law 606 East Baltimore Pike P.O. Box 30 Media, PA 19063 Re: 86 -187 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 737 Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair W. Thomas Andrews G. Sieber Pancoast Dennis C. Harrington James M. Howley Date Decided: February 22, 1990 Date Mailed: March 6, 1990 Dear Mr. Scanlan: The State Ethics Commission received a complaint regarding you and a possible violation of the State Ethics Act, No. 170 of 1978, 65 P.S. 401 et. seq. You were notified in writing as to the commencement of the investigation and as to the specific allegation(s). The investigation has now been completed and a Findings Report was issued to you which constituted the Complaint by the Investigation Division of the State Ethics Commission. An Answer was filed and a hearing was deemed waived. The record is now completed. This Order of the Commission is hereby issued which sets forth the individual allegations, findings, discussion and conclusion as follows: I. Allegation: That you, former Delaware County Controller, violated Section 3(a) of the Ethics Act (Act 170 of 1978) which prohibits a public employee's or public official's use of office or confidential information gained through that office to obtain financial gain, in that you listed the telephone number of the Mr. James M. Scanlan Page 2 Controller's Office on your private business correspondence; accepted personal business calls at the County Controller's Office; and, used county employees and equipment to conduct your private business on county time. Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 5403(a). A. Findincts : 1. You served as the elected County Controller, for Delaware County Pennsylvania. a. You served in this position until April 17, 1986 when you resigned. b. You held that position since 1981. 2. You operated a private business enterprise known as Scanlan & Company, Certified Public Accountants, P.O. Box 32, Media Pennsylvania. a. The telephone number listed on the Scanlan & Company stationary was 215- 891 -4443. 3. The office of the Delaware County Controller is located the County Courthouse on West Front Street, Media Pennsylvania. a. The telephone listed for the office of County Controller is 215- 891 -4443. 4. You conducted financial audits of several municipalities in Delaware County. a. These municipalities included Aston Township, Haverford Township, Folcroft Borough, and Collingdale Borough. 5. Records of Haverford Township indicate that a proposal to conduct the examination of the Township's annual financial statement for the years ending December 1986 through 1988 was submitted by James M. Scanlan. Mr. James M. Scanlan Page 3 a. The proposal was submitted in the form of a letter written on the stationary of Scanlan & Co. Certified Public Accountants P. O. Box 32, Media, Pennsylvania 19063. b. The proposal was dated February 3, 1986. c. The identified telephone number for the offices of Scanlan & Company was listed as 215 - 891 -4443 the proposal was signed by James M. Scanlan C.P.A. 6. Records of -the Borough of Folcroft indicate that a proposal was submitted by Scanlan & Company to perform the examination of financial statements for the Borough of Folcroft for the year ending December 31, 1985. a. The proposal was prepared in letter form on the stationary of Scanlan & Co., Certified Public Accounts, P.O. Box 32, Media, Pennsylvania 19063. b. The proposal is dated October 17, 1985. c. The letter had list the identified telephone number for Scanlan & Company as 215 - 891 -4443. The letter is signed by James M. Scanlan CPA. 7. You were not a Certified Public Accountant licensed in the Commonwealth of Pennsylvania. 8. There is no evidence that individuals for whom you provided a private accounting service would come to the office of the County Controller for any reasons relating thereto. 9. You generally performed the work in relation to the borough and township financial statement audits during the evening at the municipal buildings of the respective municipalities. 10. Betty S. Clayton, served as secretary to former controller James Scanlan from January 1982 till about April 1986 when he resigned from that office. a. Shortly after Mr. Scanlan took office she would type letters under the heading of Scanlan & Company. b. She typed these letters while doing other county work. c. Over the course of one month she typed approximately 3 or 4 letters under the Scanlan & Company letter head. Mr. James M. Scanlan Page 4 d. When typing these letters she deleted a listed telephone number of 565 -1450 and inserted a telephone number of 891- 4443. e. This was completed by whiting out the old numbers and photocopying the letterhead and retyping the new number thereon. f. The county photo copier was used for this purpose. g. On occasion Ms. Clayton would type personal letters for Mr. Scanlan on her personal typewriter in her residence. 11. Statements of financial interest on file for you with the State Ethics Commission indicate the following: a. Statement date: March 6, 1981 Name of Position Sought: County Controller; Delaware County Name of Position Held: Auditor, Springfield Township Occupation or Profession: C.P.A. Direct or Indirect Sources of Income: Springfield Township and Scanlan & Company CPA's. Office or Directorship in any business; financial interest in any legal entity in business for profit: Scanlan & Company CPA's. All other categories of financial interest none. b. Statement date: February 28, 1985. Position Sought: Delaware County Controller Position Held: Delaware County Controller Occupation or Profession: Certified Public Accountant Creditors Cape May Federal Savings and Loan; Fidelity Bank Direct or Indirect Sources of Income: Delaware County, Springfield Township, Scanlan & Company CPA's. All other categories of financial interest: None 12. Statements of financial interest on file for you with Springfield Township indicate the following: a. Statement date September 4, 1979. Position or Office Sought: Auditor, Springfield Township Direct or Indirect Sources of Income: Gordon Scanlan Office, Directorship or Employment in any Business: Gordon & Scanlan Partnership Financial Interest in any Legal Entity in Business for Profit: Gordon & Scanlan Partnership. All other categories of financial interest indicated: None Mr. James M. Scanlan Page 5 13. There are no other statements of financial interest on file for you with the State Ethics Commission, Springfield Township, or Delaware County. B. Discussions As the County Controller for Delaware County, you were a public official as that term is defined under the Ethics Act. 65 P.S. 402. As such, you are subject to the provisions of the State Ethics Act and the restrictions therein are applicable to you. Initially, it is noted that Section 5 of Act 9 of June 26, 1989 provides, in part, as follows: "This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto." Since the occurrences in this case transpired prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 170 of October 4, 1978, P.L. 883 to determine whether the Ethics Act was violated. Under Section 3(a), quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon v. State .Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet ;v. State Ethics Commission, 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. In the instant matter, you served as Delaware County Controller from 1981 until your resignation on April 17, 1986. You also operated a private business enterprise known as Scanlan and Company, CPA which provided private accounting services. Haverford Township records reflect that a proposal was submitted by your firm to perform an 0 0 qtr. James M. Scanlan Page 6 examination of the township's annual financial statements for the calendar years 1986 through 1988. Although the proposal was submitted on your firm's stationery, the telephone number listed on the proposal was for the Office of County Controller. Likewise, Folcroft Borough records indicate that your firm submitted a proposal for examination of financial statements for the 1985 calendar year. That proposal was also on your firm's letterhead and similarly contained the telephone number of the County Controller's Office. The record also reflects that a secretary in the Controller's Office typed a few letters under the heading of Scanlan and Company. in typing the letters, the secretary whited out your firm's telephone number and inserted the number of the Controller's Office. The county photocopier was used in this process. In addition, the secretary did, on occasion, type personal letters on your behalf which was done on her personal typewriter in her residence. Regarding the requirement of the filing of Financial Interests Statements, it is noted that you did file said statements at the local level when you sought the office of auditor in 1979 as well as when you sought the position of Delaware County Controller in 1901 and 1985. There are no other Statements of Financial Interests on file for you with this Commmission, the County or with the local township. In applying the above quoted provision of Section 3(a) of the Ethics Art to the instant mutter, we find that there has been a use of office on your part in that you directed the county secretary to list the County Controller's office telephone number as a contact point for proposals which were submitted by your accounting firm, Scanlan and Company, CPA. in addition, the secretary did type a few letters and used the county photocopier. The use of office was done for financial gain both for yourself and the business with which you are associated in that it was done for the purpose of obtaining more business and aiding you in your business endeavors. Lastly, the gain you received was other than compensation provided for by law because there is no provision in the County Code which would authorise you to conduct personal business activities using the county telephone, personnel or county equipment such as the typewriter and photocopier. Accordingly, you have violated Section 3(a) of the Ethics Law. Our deci..jion in the instant matter is in accord with Dorrance, Order 456. In the cited order, we found that an attorney in the Department of Public Welfare violated Section 3(a) of the Ethics Act when he conducted private legal work utilising state office space, postage, phone service and time. Since the activity in that case was limited to one particular incident, we took no further action in the natter. Likewise, in the instant matter, we note that the activity in question is quite limited and therefore, we will take no further action in this case, provided you file the Statements of Financial Interests with the county within 30 days of the issuance of this Order 0 Mr. James M. Scanlan Page 7 for each year that you held the position of County Controlle; as well as for the year after you left such position . Failure to comply with the foregoing will cause the referral of this matter to the appropriate law enforcement authority for review and appropriate action. -M M 101 1. As the Delaware County Controller, you were a public official subject to the provisions of the Ethics Act. 2. You violated Section 3(a) of the Ethics Act when you listed the telephone number of the Comptroller's Office on your private business correspondence and used county employees and equipment to conduct your private business activities on county time. 3. Based upon the limited use of county facilities, personnel and equipment, no further action will be taken provided you file Statements of Financial Interests within 30 days of the date of issuance of this order for all of the years in which you served as County Controller as well as the year after you left such position. 4. Failure to comply with the provisions of paragraph 3 will result in the referral of this matter to the appropriate law enforcement authority for review and appropriate action. This Order is final and will be made available as a public document fifteen days after issuance. However, you may request reconsideration which will defer public release of this Order pending action on your request by the Commission. A request for reconsideration, however, does not affect the finality of this Order. A reconsideration request must be received at this commission within fifteen days of issuance and must include a detailed explanation of your reasons as to why reconsideration should be granted in conformity with 51 Pa. Code 52.36. The files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a) during the fifteen day period and no one, including yourself, unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude you from discussing this case with your attorney at law, Any person who violates confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not ,pore Mr. James M. Scanlan Page 8 than $1,000 or imprisoned for not more than one year or both, 65 P.S. 409(e). By the ommission, ena G. Hughes air