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HomeMy WebLinkAbout226 FitzgeraldMrs. Carol M. Fitzgerald 201 Rex Avenue Philadelphia, PA 19118 RE: No. 83 -115 -C Dear Mrs. Fitzgerald: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF COMMISSION January 6, 1984 Order No. 226 The State Ethics Commission has reviewed the possibility that you have violated 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 by May 1, 1982, for calendar year 1981, as required by the State Ethics Act and regulations. A. Findings: 1. An audit of the 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 served as a compensated member of the Industrial Board under the Department of Labor and Industry 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. request that the Department of Labor and Industry undertake an investigative or survey into any subject within the jurisdiction of said Department; 2. review and approve all regulations and rules carrying into effect the laws regarding the labor of persons with the Commonwealth; construction, ventilation and equipment of rooms /buildings where such labor is performed or where public assemblies are held; Mrs. Carol M. Fitzgerald January 6, 1984 Page 2 3. enforce all rules /regulations as set forth above including the power to investigate alleged violations of laws subject to that jurisdiction; 4. issue subpoenas for witnesses /documents and to hold hearings associated with such enforcement /investigation procedures; 5. approve or disapprove the rules and regulations proposed by other Departmental Boards, Commissions, etc.; 6. make and amend or repeal rules and regulations for effecting all laws previously entrusted to the Department of Labor and Industry relating to providing reasonable and adequate protection for the life, health, and safety of persons employed in any room, building or place, including the provisions of the "Fire & Panic Act ", for example, 35 P.S. 1221 et. seq.; 7. issue permits, approve plans, and compel discontinuance of use, etc. with respect to any building, room structure, etc. within the purview of regulation of the Department or Board as set forth above and other applicable laws. 3. You are a public official as that term is used in the Ethics Act. 4. You had not filed a Statement of Financial Interest for calendar year 1981 according to our records so steps were undertaken to secure same (see below). 5. A letter was addressed to you by the Executive Director of the State Ethics Commission, Edward M. Seladones. a. This letter was dated December 20, 1982. b. This letter was addressed to you at 201 Rex Avenue, Philadelphia, Pennsylvania 19118. c. This letter was mailed certified, return receipt requested, No. 0018409. The letter was accepted by Jamie Fitzgerald on December 23, 1982. d. We received no response to this letter. 6. Another letter was addressed to you by Edward M. Seladones, Executive Director, State Ethics Commission. a. This letter was dated May 11, 1983. Mrs. Carol M. Fitzgerald January 6, 1984 Page 3 b. This letter was addressed to you at 201 Rex Avenue, Philadelphia, Pennsylvania 19118. c. This letter was mailed certified, return receipt request, No. 5254952. This letter was accepted by Carol M. Fitzgerald on May 14, 1983. d. We received no response to this letter. 7. We had not received the required FIS as of August 22, 1983, although we have received the required FIS as of September 2, 1983. a. Based upon the above, we issued an Order on August 22, 1983, regarding your filing and you requested reconsideration of same, which was granted. b. In said Petition for Reconsideration, you indicated that you did not intend to violate the Ethics Act and relied upon legal advice from your husband that you were not required to file a Financial Interests Statement. B. Discussion: 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. 402. 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). Mrs. Carol M. Fitzgerald January 6, 1984 Page 4 Sections 4.3(b) and 4.4(d) of the State Ethics Commission regulations state: 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. You have failed to file the Statement of Financial Interest required by the law and State Ethics Commission regulations despite being advised of this requirement. (b) Any person appointed as an official in a Commonwealth's executive, legislative, 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). In addition, Section 4(d) of the Ethics Act states: (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 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. 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 and must be presumed to have an understanding of forms and administrative and legal requirements. We believe you understood your filing obligation. Mrs. Carol M. Fitzgerald January 6, 1984 Page 5 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 now have reviewed this matter and reconidered same and find there are mitigating circumstances apparent in this case. You did not intend to violate the Ethics Act and we have now received the required Financial Interests Statement. These facts lead us to conclude 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 decline 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, haul J. Chairm th