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HomeMy WebLinkAbout292 HessMr. Kenneth H. Hess 165 Market Street Highspire, PA 17034 RE: No. 84 -33 -C Dear Mr. Hess: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF COMMISSION September 6, 1984 Order No. 292 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 Statement of Financial Interests by May 1, 1983, for calendar year 1982, as required by the State Ethics Act and regulations. A. Findings: 1. An audit of the Statement of Financial Interests for calendar year 1982 required to be filed by May 1, 1983, was conducted by the State Ethics Commission. Your statement was not on file. 2. You served as a compensated member of the State Board of Motor Vehicles Manufacturers, Dealers, and Salesman during calendar year 1982. a. The law applicable to this entity specifies that its members are authorzied to receive compensation other than reimbursement for expenses. b. You resigned or left this office in January, 1983, although your term expired in March, 1982. c. The powers and duties of this Board as set forth in the laws of this Commonwealth include the power to: (1) license of motor vehicle salesman, motor vehicle dealers and manufacturers, factory branches, distributors, etc. (2) investigate on its own initiative or upon verified complaint of any person, any allegation of the wrongful acts of any licensee or person required to be licensed by the Act known as the Motor Vehicle Manufacturer's, Dearler's and Salesman's License Act, 63 P.S. 801 et. seq. Mr. Kenneth H. Hess September 6, 1984 Page 2 (3) adopt, promulgate, and enforce rules and regulations necessary to carry out powers and duties of the Board; (4) issue subpoenas for materials, documents or testimony with respect to any hearings conducted by the Board. 3. You were a public official as that term is used in the Ethics Act and upon leaving office as set forth above became a former public official. 4. You had not filed a Statement of Financial Interest for calendar year 1962, according to our records, so steps were undertaken to secure your filing. 5. A letter was addressed to you by the Executive Director of the State Ethics Commission, Edward M. Seladones. a. This letter was dated August 2, 1983. b. This letter was addressed to you at 165 Market Street, Highspire, Pennsylvania 17034. c. This letter was mailed regular first class mail. d. We received no response to this letter. 6. Another letter was addressed to you by the Executive Director of the State Ethics Commission, Edward M. Seladones. a. This letter was dated November 4, 1983. b. This letter was addressed to you at 165 Market Street, Highspire, Pennsylvania 17034. c. This letter was mailed certified, return receipt requested, No. 5254770. This letter was accepted by M. D. Hess on November 10, 1983. d. We received no response to this letter. 7. You filed a Statement of Financial Interests on April 30, 1984. This statement was for calendar year 1983. In a phone conversation with Mr. Deibert of the State Ethics Commission staff, you stated it was also accurate for calendar year 1982. a. You stated you had given this statement to your accountant for detailed completion but it had been forgotten. b. There was no intent on your part to violate the Ethics Act. Mr. Kenneth H. Hess September 6, 1984 Page 3 B. Discussion: Section 4. Statement of financial interests required 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 "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 Statements of Financial Interests for each year they hold office. 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 4.4(a) and 4.4(d) of the State Ethics Commission regulations state: (a) Incumbent officials of the Commonwealth's executive, legislative, and judicial branches and other statewide offices who are not candidates shall file their Statement of Financial Interests with the Commission and a copy with the agency in which they hold office by May 1 of each year in which they hold office. 51 Pa. Code 4.4(a). (d) Former public officials shall file a Statement of Financial Interests for their last year of service by May 1 of the succeeding year. This statement shall be filed at the same offices they filed when they were incumbent officials. 51 Pa. Code 4.4(d). The powers and duties of this Board 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 authorized to receive compensation 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 Interests required by the law and State Ethics Commission regulations despite being advised of this requirement. Mr. Kenneth H. Hess September 6, 1984 Page 4 You received our letters informing you about your obligation to file a Statement of Financial Interests, but you ignored them. You held 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. (b) Any person who violates the provisions of Section 4 is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year, or be both fined and imprisoned. 65 P.S. 409(b). 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. You have now filed your Statement of Finincial Interests and we find no reason to believe that you realized financial gain by this failure to file and we will take no further action. C. Conclusion: You violated the Ethics Act and State Ethics Commission regulations by not filing a Statement of Financial Interests with the State Ethics Commission. However, you have now filed the Statement of Financial interests and we will take no further action because we find no evidence that you realized financial gain by this failure to file. 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 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). RED /rdp In addition, Section 9(b) states: Section 9. Penalties. cc: Governor's Office Governor's Office of Boards & Commissions B the Com issio rber B. Conner Chairman