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HomeMy WebLinkAbout700 BishMr. William Bish P.O. Box 442 McDonald, PA 15060 Re: 88 -084 -C Dear Mr. Bish: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG. PENNSYLVANIA 17120 ORDER OF THE COMMISSION ORDER NO. 700 Date Decided: April 19, 1989 Date Mailed: April 2R_ 1989 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 writi:: as to the commencement of the investigation and as to t_; 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. Allecration: That you, a Director of the Fort Cherry School Board, Washington County, violated the followin Ethics Act (Act 170 of 1978), when you failed to Statements the 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. S404(a). Mr. William Bish Page 2 54.4. 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 §4.4(a). A. Findings 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 1985. b. You formerly served as the maintenance supervisor for the school district from 1972 to 1985. 2. 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 for a member of the Fort Cherry School District Board of Directors in the municipal election of 1985. 3. Records of the Fort Cherry School District indicate the following Statements of Financial Interests on file for you: a. Filing date - March 7, 1985 as a candidate. For the year - 1984. Source of Income - Fort Cherry School District. All other financial interest categories - none. b. Filing date - March 3, 1983 as a candidate. For the year - 1982. All financial interests categories - none. 4. No other Statements were on file at the.Fort Cherry School District for you. 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: a. Mrs. Donna D'Amico, McDonald resident, commented that she had been informed that the board members did not file Mr. William Bish Page 3 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 employee whose duties include taking or recommending Mr. William Bish Page 4 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 emnlovees 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. 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. Mr. William Bish Page 5 9. You provided the following information in relation to the instant situation: a. You have served on the school board since 1985. b. You were employed by the school district as maintenance supervisor from 1972 to 1985. c. You were also chairman of the Midway Borough Council. d. Approximately six months ago, someone raised an issue regarding the filing of Statements of Financial Interests. e. You did not recall any opinion given by the solicitor. f. The opinion may have been given after a meeting when another meeting is usually held. You do not stay for these meetings. g. You did not read the instructions on the form thoroughly. h. You do not believe that directors should have to file. i. You never filed a statement after the year in which you ran for election. Some members felt that directors were not required to file. 10. On February 6, 1989, Statements of Financial Interests were filed by you with the State Ethics Commission: a. Date - January 31, 1989. For calendar year - 1986. Employment - Banksville Beer Dist. All other financial interests categories - none. b. Date - January 31, 1989 For calendar year 1987. Employment - Banksville Beer Dist. All other financial interests categories - none. c. Date - January 31, 1989. For calendar year - 1988. Employment - Banksville Beer Dist. All other financial interests categories - none. Mr. William Bish Page 6 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 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 1985. The records of the school district reflect that you filed the following Statements of Financial Interests: March 7, 1985 for 1984 and March 3, 1983 for 1982. 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 calendar years 1986, 1987 and 1988, all of which are dated January 31, 1989. 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, this Commission will take no further action provided you file a Statement of Financial Interests for the calendar year 1985 within thirty days of the issuance of this Order. 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. Mr. William Bish Page 7 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. You are directed to file a Statement of Financial Interests for the 1985 calendar year within thirty days of the issuance of this order. 4. Failure to comply with paragraph 3 of this order will result in the referral of this matter to the appropriate law enforcement authority. 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 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- Commissio elena G. Hughes Chair