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HomeMy WebLinkAbout698 SchwabMrs. Beverly Ann Schwab R.D. #1 Bulger, PA 15019 Re: 88 -082 -C Dear Mrs. Schwab: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION ORDER NO. 698 DATE DECIDED: April 19, 1989 DATE MAILED: April 7R, 114R9 The State Ethics Commission received a complaint regarding you and a possible violation of the State Ethics Act, No. 170 of 1978, 65 P.S. 401 et. seq. You were notified in writing as to the commencement of the investigation and as to the specific allegation(s). The investigation has now been completed and a Findings Report was issued to you which constituted the Complaint by the Investigation Division of the State Ethics Commission. An Answer was filed and a hearing was deemed waived. The record is now completed. This Order of the Commission is hereby issued which sets forth the individual allegations, findings, discussion and conclusion as follows: I. Allegation: That you, a Director of the Fort Cherry School Board, Washington County, violated the following provisions of the Ethics Act (Act 170 of 1978), when you failed to file Statements of Financial Interests with the school district: 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. 5404(a). Mrs. Beverly Ann Schwab Page 2 A. Findings: S4.4. Incumbent and former public officials. (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 54.4(a). 1. You serve as a member of the Fort Cherry School District Board of Directors, McDonald, Pennsylvania. a. You have served in this position since December of 1987 at which time you administered the oath of office. 2. You were a candidate for the office of school director, Fort Cherry School District, in the municipal election of 1987. 3. Records of the Pennsylvania State Ethics Commission relating to Statements of Financial Interests indicate a Statement of Financial Interests is on file for you regarding your status as a candidate as a member of the Fort Cherry School. District Board of Directors in the 1987 municipal election. 4. Records of the Fort Cherry School District indicate Statements of Financial Interests on file for you with the School District: a. Filing date - March For calendar year - Sources of Income - All other financial 7, 1983. 1983. John Bish. interests categories - none b. Filing date - March 3, 1987. For calendar year - 1986. Sources of Income - John Bish. • Creditors - West Central Prod. Credit, 10.5 %. All other financial interests categories - none. 5. Minutes of the regular meeting of the Fort Cherry School District Board of Directors for September 26, 1988, indicate the following regarding the Statements of Financial Interests filings by board members: Mrs. Beverly Ann Schwab Page 3 a. Mrs. Donna D'Amico, McDonald resident," commented that she had been informed that the board members did not file Statements of Financial Interests on an annual basis. She stated that she reviewed the law and it seemed to indicate that such statements had to be.filed no later than May of each year. Mrs. ` D'Amico was informed: that the Board members filed their Statements of Financial Interests prior to the election. Mr. McCracken asked the solicitor to explain the law on filing these Statements. Mr. McTiernan, the solicitor, stated that the law provides that board members are to file prior to their election to office and that the superintendent is the only employee of the district with the discretion described in the statute to file on an annual basis. 6. Records of the Fort Cherry School District indicate the following correspondence relating to Statements of Financial Interests: a. Letter dated March 31, 1980 to Dr. J. Manion, Fort Cherry School District, from Robert T. Crothers. b. The letter indicates that a review has been made of the Ethics Act and proposed regulations of the Ethics Commission. c. The letter indicates that the Act requires the filing of a Statement of Financial'- Interests no later than May 1 of 1980. d. The letter indicates that a class action suit was brought by several school members against the Governor seeking injunctive and declaratory relief and an injunction on the filing requirement was issued by the Pennsylvania Supreme Court thus negating the need for school board members to file at that time. e. It is recommended that the school board adopt a resolution identifying specifically the positions of employment for which a filing is required. f. It is further advised, pursuant to this letter, that all of the individuals identified as being required to file a Statement of Financial Interests be notified of such. g. The resolution which was appended to the letter identified the following group of individuals as being required to file Statements of Financial Interests for Fort Cherry School District: Superintendent, Assistant Superintendent, Business Manager, high school and elementary principals, any Mrs. Beverly Ann Schwab Page 4 employee whose duties include taking or recommending official action of a non - ministerial nature in relation to specified activities set forth in the resolution. h. The resolution identified the administrative offices of the Fort Cherry School District as the filing location and noted that all statements must be filed no later than May 1, 1980. 7. By way of letter dated October 31, 1988, to the State Ethics Commission from Robert L. McTiernan, Mr. McTiernan indicates that based upon his review of the State Ethics Act, school board members are clearly identified as public officials and not public employees under the provisions of the law. He further indicates that the State Ethics Act only requires public employees to file Statements of Financial Interests on an annual basis. Mr. McTiernan further indicates that candidates for public office and public officials are only required to file Statements of Financial Interests for the year prior to filing a petition to appear on the ballot as a public official. 8. Robert L. McTiernan provided the following information in relation to this situation. a. He has been solicitor for the Fort Cherry School Board since approximately, 1983. b. The issue regarding the Statements of Financial Interests rose during the fall of 1988, when the business manager and board secretary indicated that a citizen had asked for and was provided copies of Statements of Financial Interests for the school board members. c. At a meeting in September of 1988, a citizen appeared and required information as to why board members had not filed on an annual basis. It was explained by McTiernan at that time, that after reading the Ethics Act it was his opinion that board members were not required to file on an annual basis but only required to file in the years that they were running for re- election to public office. d. McTiernan indicated that this was his opinion and he believes that it is correct. e. He was not aware of the availability of the advisory opinion letters that could be obtained from the State Ethics Commission or the Commission's General Counsel. Mrs. Beverly Ann Schwab Page 5 f. He did not pursue the issue any further because he did not believe it was necessary to do so based upon his own analysis. 9. The records of the State Ethics Commission reflect a Statement of Financial Interests for calendar year 1987 dated January 31, 1989. a. Occupation school bus driver. b. Sources of Income - Bish Bus Transportation and William L. Schwab (Husband). All other financial interests categories - none. 10. You provided the following information in relation to the instant situation: a. You have served as a member of the Fort Cherry School Board since 1987. b. You were unaware of the requirement that school directors must file annual Statements of Financial Interests. c. The solicitor advised the board that - only paid employees had to file on an annual basis. d. You filed the statement as a candidate. e. You have been employed =as -a bus driver for Bish Bus Transportation for 18 years. f. A citizen raised questions regarding the filing requirement. q. You did not ask the solicitor for an opinion on the filing issue, until after questions had been raised. B. Discussion: As a member of the Fort Cherry School District Board of Directors, you are a "public official" as that term is defined under the Ethics Act and regulations of the Commission. 65 P.S. 402; 51 Pa. Code Section 1.1; Snyder v. Thornburgh, 469 Pa. 159, 436 A.2d 593 (1981); Jersey Shore Area School District v. Bittner, 81 Pa. Commw. Ct. 30, 472 A.2d 1183 (1984). Section 4(a) of the Ethics Act, quoted above, requires that each public employee of the Commonwealth shall file a Statements of Financial Interests for the preceding calendar year at the Mrs. Beverly Ann Schwab Page 6 appropriate filing location on or before May 1, for the year in which he holds the position and for the year after he held such a position. Although Section 4(a) on its face only appears to have application to public employees, it has been decided that the financial disclosure requirements in Sections 4(a) apply not only to public employees but to public officials as well. See Kremer v. State Ethics Commission, 56 Pa. Commw. Ct. 160, 424 A.2d 968 (1981), affirmed, 503 Pa. 358, 469 A.2d 593 (1983). In the instant matter, you have served as a school director for Fort Cherry School District since December, 1987. The records of the school district reflect that you filed the following Statements of Financial Interests: March 7, 1983 for the 1983 year and March 3, 1987 for the 1986 year. You ran as a candidate in 1983 but lost the general election in that year. It would appear that your filings were for those years in which you were a candidate for the office of school director. In this regard, it is noted that the solicitor for the district, Mr. McTiernan, expressed his view that the law would only require board members to file prior to filing a petition to appear on the ballot as a public official. Since you did not file the required Statements of Financial Interests for each year that you have served as a school director, this Commission finds that you violated Section 4(a) of the Ethics Act. However, you have filed Statements of Financial Interests for the calendar year 1987. Although you assert that you filed a Statement of Financial Interests for the calendar year 1988 on March 20, 1989, neither the School District nor this Commission has any record of such a filing. Since it does not appear that your failure to file was occasioned by any conscious action or attempt to conceal or realize prohibited financial gain or interest on your part and since you filed a Statement of Financial Interests for the calendar year 1987, this Commission will take no further action. C. Conclusion and Order: 1. As a director for the Fort Cherry School District, you were a public official subject to the provisions of the Ethics Act. 2. You violated Section 4(a) of the Ethics Act when you failed to file Statements of Financial Interests for each and every year in which you served as school board member. 3. Since you now have filed all requisite Statements of Financial Interests, this Commission will take no further action. This Order is final and will be made available as a public document fifteen days after issuance. However, you may request reconsideration which will defer public release of this Order pending Mrs. Beverly Ann Schwab Page 7 action on your request . by the Commission. A request for reconsideration, however, does not affect the finality of this Order. A reconsideration request must be received at this Commission within fifteen days of issuance and must include a detailed explanation of your reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §2.38. The files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a) during the fifteen day period and no one, including yourself, unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude you from discussing this case with your attorney at law. Any person who violates 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, 65 P.S. 409(e). By th Commission r elena G. Hughes Chair