Loading...
HomeMy WebLinkAbout200 O'ConnorJoseph O'Connor 107 N. Second Street Harrisburg, PA 17101 RE: No. 83 -26 -C Dear Mr. O'Connor: The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation. The individual allegations, cohclusions and findings on which those conclusions are based are as follows: I. Allegation: That as a candidate for public office you knowingly failed to report all sources of income required by Section 5 (b)(5) of the Ethics Act and thereby violated Section 5 (a) of that Act. A. Findings: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 June 17, 1983 ORDER OF THE COMMISSION Order No. 200 1. You were a candidate for public office (15th Senatorial District) to fill the seat vacated by ex- Senator, now U.S. Congressman George Gekas at the special election scheduled for March 22, 1983. 2. As a candidate you filed a Financial Interest Statement (FIS) with the State Ethics Commission. a. A Financial Interest Statement was signed by you on January 25, 1983, and received by the State Ethics Commission the same date. b. This Financial Interest Statement was to reflect financial data as required by Section 5 of the Ethics Act covering the calendar year 1982 and was filed in conjunction with your candidacy for the 15th Senatorial District seat. c. In Item 15, Direct or Indirect Sources of Income of $500 or More, you printed "None." d. You listed your occupation /profession (Item 10) as "writer." Joseph O'Connor June 17, 1983 Page 2 3. On March 8, 1983, you submitted an amended Financial Interest Statement to the State Ethics Commission. a. This Financial Interest Statement listed the following on Item 15, Direct or Indirect Sources of Income: - Senate of Pennsylvania - Main Capitol Building - Harrisburg, Pa. - Commonwealth of Pennsylvania, 204 Labor and Industry Building b. The Financial Interest Statement was unchanged from the one filed January 25, 1983, in all other major respects and was submitted in .conjunction with your candidacy for the 15th Senatorial District seat. 4. As a candidate in the primary election of 1982, you had previously submitted a Financial Interest Statement to this Commission. a. This Financial Interest Statement was received by the State Ethics Commission on March 9, 1982. b. This Financial Interest Statement reported on Item 15 as a Direct /Indirect Sources of Income "Pa. Senate -- Main Capitol Building." This income - source was designed to disclose your income as a staff person with the Senate. c. On this Financial Interest Statement you filled in "1982" in the space which reads as follows "I hereby certify that the information presented herein is true and correct to the best of my knowledge, and represents disclosure for the calendar year 19 ." 5. During calendar year 1982 you recognized income as reported on your Income Tax Return (Form 1040) filed with the Internal Revenue Service (IRS) as follows: a. Interest income - $ 541.00 b. Dividends - $ 292.00 . c. Business income (see Schedule C) - $ 9,750.00 d. Other pensions and annuities $15,861.00 with taxable amount of $ 3,833.00 e. Total income (approximately) Total taxable income - $26,500.00 $14,356.00 • _ . Joseph O'Connor June 17, 1983 Page 3 6. Schedule C of this IRS return reports on profits or loss from business or profession and lists "Commonwealth of Pa." in the space provided for "Business name" and reports the "product" you supplied was "service." 7. You made your 1982 IRS return available to the public on or about February 24, 1983. The return included Schedule C noted in No. 6 above. You made copies of this return including Schedule C, available upon request by members of the public. 8. During 1982 you realized income from Service Purchase Contracts (SPC) #764890. a. ,SPC #764890 effective October 15, 1981 and to terminate on February 15, 1982 was not to exceed $7500.00. b. SPC #764890, on its face sheet, notes that your services as a consultant were to be provided to the Labor and Industry Committee and to be performed "under direction of Senator Fumo." A short -term employment agreement consisting of two type- written pages attached to this SPC further outlined your duties and responsibilities under this SPC. 9. During 1982 you realized income from SPC #806331. a. SPC #806331 prepared May 24, 1982, effective April 4, 1982, and to terminate June 30, 1982, and not to exceed $4,000.00 was signed by you on May 13, 1982. b. SPC #806331, on its face sheet, notes that your services as a consultant were to be provided by Senator Vincent J. Fumo, Chairman, Labor and Industry Committee and his staff regarding the Port of Philadelphia. This SPC was accompanied by a short -term employment agreement consisting of two type- written pages which further outlined your duties and responsibilities under this SPC. 10. Payments under SPC #764890 and #80633 were made as follows: a. By check dated January 25, 1982 you were paid $1,875.00 "as per service purchase contract." b. By check dated February 22, 1982 you were paid $1,875.00 "as per service purchase contract January 15 - February 15, 1982." c. By check dated May 25, 1982, you were paid $3689.72 "as per service purchase agreement." d. By check dated August 24, 1982, you were pai:d "as per service purchase contract" and the voucher submitted for this check is marked "Paid in Full." Joseph O'Connor June 17, 1983 Page 4 e. Each of these checks was made out and paid pursuant to voucher and the Rules of the Senate, as approved by the "Committee Chairman" and the Chief Clerk of the Senate. f. Each of these checks was made payable to your account with the payor being the Commonwealth of Pennsylvania. B. Discussion: There is no doubt that your failure to report income in excess of $500.00 from the SPC's listed above (See No. 7) on your Financial Interest Statement dated January 25, 1983 did not meet the requirements of Section 5 of the Ethics Act. There is also no doubt that the information relating to this income was properly reported on the Financial Interest Statement'you filed as of March 8, 1983. The question most pressing here is whether this omission was made knowingly with intent to decieve and what remedy, action or recommendation is to be taken in this case. We will review these questions more fully below. First, the State Ethics Commission could, pursuant to Section 7(11) make a recommendation that appropriate law enforcement officials review the question of whether the Financial Interest Statement you signed on January 25, 1983, knowingly or deliberately omitted the Senate of Pennsylvania as a source of income. The complaint submitted to us suggested that a motivating factor in omitting these SPC payments as d. Source of income was your desire to conceal this contract because it might "associate" you with Senator Vincent Fumo. This alleged motivation for your failure to report this SPC income does not convince us that the omission of this item was ,deliberate because a proper report such as was filed on March 8, 1983, would merely list "Commonwealth of Pennsylvania" as the source of income; it would not reveal any association with a particular member of the Senate. Thus, there was little realistic "fear" which would motivate you to omit this reference. It is also apparent, through your release of your IRS return on February 24, 1983, that you wished to and did fully report all income. We also believe that, although subject to contradiction, Schedule C was made available with the IRS return itself. This Schedule reveals the "Commonwealth of Pa." as the business for which you provided "services." It is difficult to perceive that you would knowingly and intentionally omit the Commonwealth of Pennsylvania on the Financial Interest Statement filed January 25, 1983 and then release this IRS information which reveals this income - source on February 24, 1983. We must also note that your relationship with the Commonwealth of Pennsylvania was not unknown. The SPC's documenting this relationship were on file and readily available from the office of the Chief Clerk of the Senate. Joseph O'Connor June 17, 1983 Page 5 Additionally, we must acknowledge that a fair percentage of the forms received by our office fail to list the "employer" as a source of income under Item 15. This omission occurs despite the fact that our instructions clearly advise the filer to "list Employer(s)." In most cases, we have recognized this omission as inadvertent, notify the filer of the omission, demand an amended Financial Interest Statement and take no further action. None of the "motives" offered to suggest that the omission in your case was other than inadvertant are convincing. We find no reason to believe this error was intended to deceive or that further review by law enforcement officers is warranted. Absent such evidence, any recommendation that review of this matter for possible perjury prosecution would be unwarranted. See Denoncourt v. State Ethics Commission, No. 2793 C.D. 1981, opinion filed March 23, 1983. In Denoncourt, the question of whether failure to report data required by Section 5 of the Ethics Act was a "strict liability offense" or not the Commonwealth Court concluded: It is clear that perjury (under which a financial statement is filed) is not a strict liability offense. In other words, all elements of the offense will need to be proven at trial beyond a reasonable doubt. All defenses to the charge, including lack of the requisite mental state, ignorance, mistake, acusation, and the like will be available to the defendant at trial .... the act does not impose absolute or automatic liability." Opinion, p. 4. Finally, it has been strenuously and publicly suggested that the Commission take action to remove your name from the ballot because of this omission. A thorough review of the Ethics Act, as promulgated by the Legislature, fails to provide any specific authority or basis for such a suggested action. The Ethics Act does not specify that such authority rests with the State Ethics Commission. It is true that this Commission has instituted Court actions testing the right of candidates to remain on the ballot. See State Ethics Commission v. Board of Election in Allegheny County, et al, No. 1266 C.D. 1981 where candidates failing to file a Financial n Brest Statement up through the primary election were removed from the general election ballot. See also State Ethics Commission v. Baldwin, Pa. , 445 A.2d 1208 (1982) where candidates who swore affidavits they had filed the required Financial Interest Statement with the State Ethics Commission when the Financial Interest Statement was not so filed were re- instated on the primary election ballot in face of Election Code challenges filed by the Commission. These actions dealt with a failure to file a Financial Interest Statement, thereby totally witholding the mandated data from public scrutiny and not with the alleged insufficiency as in this case of a filing made. While one can argue that such a difference is one of degree and not of kind we must be cognizant of the Supreme Court's pronouncement as to the false affidavits and untimely filed Financial Interest Statement situation(s) present in Baldwin. Joseph O'Connor June 17, 1983 Page 6 In Baldwin, the Court clearly concluded that absent any intent to deceive and given the fact that the information is in fact received and available "for all of the purposes envisioned under the Ethics Act ", the requirements of Section 4(b) should not be posted as a barrier to seeking office. The Court noted that public policy favors enfranchisement and the fact that the required disclosure or missing data is available during the selection process should not be ignored. In this matter, especially given our discussion relating to the non - fraudulent nature of this ommission, the fact that the data as to your income from the Commonwealth was available during the election process by virtue of your release of IRS returns or via your amended Financial Interest Statement (filed March 8, 1983) and in light of the Supreme Court's guidance, we see no reason to attempt to remove your name from any ballot. In this area we also note that the State Ethics Commission is not the exclusive forum in which to test a candidate's right to remain on any ballot. The Election Code specifically provides a mechanism for raising challenges to the nomination petitions or papers of any candidate. The Courts are, of course, constitutionally compelled to be open and available as a forum for presenting this or related questions. Other' mechanisms -- application directly to a law enforcement official if perjury is being alleged, for example -- are available. For the State Ethics Commission to remove a candidate from the ballot summarily and without hearing and due consideration of the weighty quesions raised in this or similar matters would be unreasonable. C. Conclusion:' Failure to report SPC income as discussed above violates the requirements of Section 5(b)(5) of the Ethics Act. However, an amended Financial Interest Statement has been filed which properly reports information orginally omitted from your January 25, 1983 Financial Interest Statement. In light of the above discussion, the State Ethics Commission will take no further action in this matter. Our files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will be made available as a public document 15 days after service unless you file documentation with the Commission which justifies reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code 2.38. During this 15 -day period, no one, including the Respondent unless he waives his right to challenge this Order, may violate this confidentiality by releasing, discussing or circulating this Order. Joseph O'Connor June 17, 1983 Page 7 Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1000 or imprisoned for not more than one year or both, see 65 .P.S. 409(e). PJS /rdp Sincerely, gr.wL. t aul J. Chairman