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HomeMy WebLinkAbout221 FergusMr. Harold V. Fergus, Jr. 102 Lemoyne Avenue Washington, PA 15301 Re: File No. 83 -109 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION January 6, 1984 Order No. 221 Dear Mr. Fergus: The State Ethics Commission has reviewed information regarding you and a possible violation of the State Ethics Act, Act 170 - 1978. The nature of the alleged violation is as follows: I. Allegation: That as a public official you failed to file a Financial Interest Statement for calendar year 1981 by May 1, 1982, as required by the State Ethics Act and State Ethics Commission Regulations. A. Findings: 1. An audit of Public Officials' Financial Interest Statements for calendar year 1981 required to be filed by May 1, 1982, was conducted by the State Ethics Commission. Your statement was not on file. 2. You are a paid member of the Workmen's Compensation Appeal Board, Department of Labor and Industry, and served on that Board during calendar year 1981. a. You currently serve in this office. b. The powers and duties of this Board as set forth in the laws of this Commonwealth include the power to: 1. hear and decide cases and claims brought pursuant to the Pennsylvania Worker's Compensation Law and the Pennsylvania Occupational Disease Act, which decisions are directly appealable to the Courts of this Commonwealth; 2. issue subpoenas to compel the attendance of witnesses or the production of documents pertinent to any hearing (77 P.S. 992), required to dispose of claims /appeals under said acts; Harold V. Fergus, Jr. January 6, 1984 Page 2 3. order the appointment of an impartial physician to examine any claimant pursuant to the aforementioned Acts (77 P.S. 831); 4. exercise all the powers and perform duties as an appellate Board independently of the Secretary of Labor and Industry and any other official of said Department; 5. to make rules and regulations necessary to the proper and judicial administration of the duties of the Board. 3. You are a public official as that term is used in the Ethics Act. 4. The Governor's Office of Budget and Administration and the State Ethics Commission informed you that you were required to file a Financial Interest Statement. a. In June of 1982, the Governor's Office of Budget and Administration informed you of your filing obligation. b. On December 20, 1982, the State Ethics Commission informed you of your obligation to file a Financial Interest Statement. "A. Fergus" signed for that letter. c. On May 11, 1983, the State Ethics Commission again informed you of your filing obligation. On May 14, 1983, you signed for that letter. d. On June 27, 1983, the Senate Labor and Tndustry Committee held a hearing to consider your nomination for the Workmen's Compensation Appeal Board. At that hearing you stated that you were also the Mayor of the Borough of East Washington. On April 19, 1982, you filed a Financial Interest Statement with that Borough for the calendar year 1981. 'e. Based on that information, a copy of the statement you had filed on April 19, 1982, with that borough was acquired by the State Ethics Commission on July 1, 1983. f. On June 27, 1983, you filed your statement for calendar year 1982 with the State Ethics Commission. g. Your statement for calendar year 1981 which you had filed with East Washington Borough did not list your wife's source of income or the Commonwealth of Pennsylvania as one of your sources of income. Harold V. Fergus, Jr. January 6, 1984 Page 3 h. Your statement for calendar year 1982 which you filed with the State Ethics Commission on June 27, 1983 also did not include the above sources of income. In addition, your financial interest in Fermar, Inc. was missing. i. On July 14, 1983, you amended both statements. 5. Based on the above we issued an Order regarding your filing and you requested Reconsideration of same, which was granted. 6. In said Petition for Reconsideration you indicated that you did not intend to violate the Ethics Act and you believed you had filed all the required documents either with East Washington Borough or with the Senate. In addition, during the period of December 20, 1982 to May 11, 1983 of our correspondence to you regarding your filing, your father was ill, died and your attention was given to handling his estate. B. Discusson: Section 4. Statement of financial interests to be filed. (a) Each public employee employed by the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency or bureau in which he is employed 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 shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. 65 P.S. 404(a). The State Ethics Commission has ruled that all "public officials" are also "public employees" and thus, subject to Section 4(a)'s requirements. See Carter, 79 -066. Also, the regulations of the State Ethics Commission, which have the force and effect of law specify that public officials shall file Financial Interest Statements. 51 Pa. Code 4.4(a). The Commonwealth Court has also agreed that "public officials" are subject to the filing requirements of Section 4(a) of the Ethics Act. See Kremer v. State Ethics Commission, 56 Pa. Cmwlth. 160, 424 A.2d 968 (1981). Sections 4.3(b) and 4.4(d) of the State Ethics Commission regulations state: Harold V. Fergus, Jr. January 6, 1984 Page 4 (b) Any person appointed as an official in a Commonwealth's executive, legilsative, judicial branches and other state -wide offices who is not a candidate shall file his Financial Interest Statement with the Commission and a copy with the agency to which he is appointed by May 1, of the year appointed or within 15 days if appointed after May 1. 51 Pa. Code 4.3(b) (d) A former public official shall file a Statement of Financial Interest for their last year of service by May 1, of the succeeding year. This statement shall be filed at the same office they filed when they were incumbent officials. 51 Pa. Code 4.4(d) The powers and duties of this Board or Commission, as found above, indicate this body has either the authority to expend public funds or to otherwise exercise the power of the State or any political subdivision. In addition, you were compensated for your services. You are subject to the Ethics Act because of the Board's authority and the compensation provided by law. In addition, Section 4(d) of the Ethics Act states: (d) No public official shall he 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 with the commission as required by this act. 65 P.S. 404(d). For purposes of the Act, accurate and complete Statements of Financial Interest must be available to the public served by the public official or public employee. We realize that policies to achieve these purposes must consider the possibility that an oversight or misunderstanding of the filing requirements may occur and corrections allowed. Following a reasonable application of the law, we have accepted the late filing of Statements of Financial Interests at a second location where the statement has already been available to the public at one of two locations required by the law. This policy has been applied except where there was sufficient evidence to show that the public official or public employee understood his or her filing obligations. This policy is not applicable for your case. Although you had a Statement of Financial Interest on file in East Washington Borough and the information on that statement was available for the public you served in that Borough, it was not available for the very different and larger public you serve as a member of the Workmen's Compensation Appeal Board. Harold V. Fergus, Jr. January 6, 1984 Page 5 You received our letters informing you about your obligation to file a Financial Interest Statement but you did not respond to them. You hold a responsible position with the Commonwealth, serve as a borough mayor, and are an attorney. Each of these positions require an understanding of forms and administrative and legal requirements. We believe you understood your filing obligation. Section 4(d), quoted above, prohibits a public official from continuing in office and receiving compensation from public funds unless he files a Statement of Financial Interests as required by the Ethics Act. These are serious penalties and judicious application of the law requires its use only where there is substantial reason to believe that the failure to file was willful. However we have now reviewed this matter and reconsidered same and find there are mitigating circumstances apparent in this case. Your filing with East Washington Borough evidences a lack of intent to conceal your financial interests. This coupled with the extenuating circumstances (see No. 6, above) and the fact that we have now received the required Financial Interest Statement lead us to conclude that we should not pursue this matter further. C. Conclusion: While you violated the Ethics Act and State Ethics Commission regulations by not filing a Financial Interest Statement with the State Ethics Commission as set forth above you have now filed the required Financial Interests Statement and have provided an adequate reason for failing to do so. Thus, we declined to refer this matter to the appropriate law enforcement agency for review. 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 now final and will be made available as a public document in accordance with 51 Pa. Code 2.38(a). Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). EMS /rdp Attachment By the Commission, Paul ,d,/ " ith Chaff an