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
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