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Home My WebLink About449-R CorbettMr. Kerry Corbett c/o Gregory P. Sesler, Esquire Sesler & Sesser 109 East 10th Street Erie, PA 16501 Re: 85 -071 -C Dear Mr. Corbett: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 449 -R OFC1DEU 2u 1986 MAl. 106 c. You admit you had not filed as an incument. The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation. Your attorney, 01 P. Sesler, submitted an appeal on January 13, 1986 and a brief on June 13, 1986. He waived your right to a full evidentiary hearing and this Order includes the information provided on the appeal and the brief. The individual allegations, conclusions, and findings on which those conclusions are based are as follows: I. Allegation: That you, an Auditor in Richland Township, violated the State Ethics Act and Section 4.4(h) of the State Ethics Commission regulations which provides that incumbent public officials in governmental bodies who are not candidates shall file Statements of Financial Interests with the governing authority of their political subdivision by May 1 of each year in which they hold office because you failed to file with Richland Township in 1984 and 1985. A. Findings: 1. You served as a Richland Township auditor since January 19, 1984 and, as such, are subject to the requirements of the State Ethics Act. 2. You state the following concerning your filing of Statements of Financial Interests. a. You did file as a candidate, hut believed you were not required to file as an incumbent. h. No one from the township ever notified you that you were required to file or provided you with blank Statements of Financial Interests. Mr. Kerry Corbett Page 2 3. Township records show that you filed two Statements of Financial Interests on August 8, 1985; one for calendar yEar 1983 and cne for calendar year 1984. 4. Township records show that you were paid $213 in 1984 for auditing the 1983 books of the township and $210 in 1985 for auditing the 1984 books of the township. 5. The following information wa_. provided in the appeal brief filed by Attorney Sesl era aE. :11 fi ridi or of fac", in the original Order (Findings 1 - 4 above) are admitted.. b. Yt were not notified by the ;: ownship secretary that you were required to file a Statement of Financial nterests as an incumbent auditor. c. You were a'. :e of the filing requirements for candidates and did file a Statement c Financial Interests at that time. d4 You do not subscribe to the township newsletter or other publications that would have given you notice of your requirement to file. e. Towirsh p minutes show that no notice was given at p u b l i c meetings about filing requirements. (In a separate interview, Ms. Evelyn Winton, Township Secretary, stated that minutes would not show discussion about filing Statements of Financial interests). f. There is an audit appeal case pending which had been brought by the audi to +s of Richland Township against the current supervisors for alleged ii'ra! propriations and use of township flied:, in past years. The cas has beer; argued but no decision :•ender';ed go You di zi fl1 e the required Statement of Financial Interests as soon as the State Ech i cs Commission informed you of you;' obligation. h. You,° failure to file was not because of your negligence or choice, but because the townshp secretary failed to inform you of the filing requirement. You contend that you were intentionally denied the Statement of Fiancial krteests by the township secretary because you initiated surcharge act ons against the supervisors. i . There were a number other township officials who failed to f i l e or filed late and you are the only one who has been singled out Mr. Kerry Corbett Page 3 j. In Order No. 17, the State Ethics Commission ruled that a supervisor who failed to file a Statement of Financial Interests had violated the State Ethics Act but the Commission would take no further action because the official did file the required financial statement-and it was available for public inspection. The Commission should reach the same conclusion in this case to be consistent. 6. You did not have any private financial dealings with the township. B. Discussion: As a township auditor you are a public official as that term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements of the Act. Zvorsky, No. 360. The Ethics Act provides that public employees must file a Statement of Financial Interests for the preceding calendar year no later than May 1 of each year that he holds such a position. This provision is equally applicable to public officials. Carter, 7p -065; see also Kremer v. State Ethics Commission, 56 Pa. Commw. 160, 424 A.2d 968, (1981). The Act also provides: Section 4. Statement of financial interests required to be filed. (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). This Commission has recently imposed penalties for failure to file Statements of Financial Interests based upon the above provision of law. Specifically, in Metzler, No. 389 and in Huhn, No. 431 this Commission determined that an individual public official who failed to file Statements of Financial Interests but yet received compensation from public funds had done so in violation of the State Ethics Act. In those particular situations, however, there was evidence to indicate that the individual was aware of his filing requirement or that the individual who had failed to file had various business dealings with his own governmental body. In the instant situation, neither of these two specific situations were evidenced. In addition, we are swayed by the fact that as an auditor you had initiated a surcharge action against the individuals in the township who were responsible for distributing the Statements of Financial Interests to you as a public official. Specifically, it has been asserted that the Statements of Financial Interests in each of the two years which you failed to file were specifically not Mr. Kerry Corbett Page 4 provided to you by the township secretary because you had initiated surcharge actions as an auditor against the individuals on the township board of supervisors. While there is no direct proof that this in fact, occurred because of the potential intentional failure to provide you with the forms, coupled with the fact that you had no financial dealings with the township which you were attempting to hide by not filing, we will not imps :e the restitution requirement as set forth in the opinions noted above. We do note, however, that as a public official, it is generally your obligation to be aware of what duties and responsibilities ar,e, imposed upon you by law. Specifically, you should have been aware of the fact that you were required to file Statements of Financial Interests by May 1 of every year in which you served. Your. alleged ignorance of this requirement of law is no excuse fop your failure to file. The Ethics Act, at the point in time for which the filings were required, had been in effect for a number of years. Statement of Financial Interests filing requirements for public officials had been widely publicized for a number of years prior to the years in which you did not file. As such, we do believe that there was a technical violation of the State Ethics Act This was 'corrected by your-filings which occurred on August 8, 1985, after you became aware of your obligation tc do so. These filings are now available for public inspection a,d review F nel 1y, we note that you have asserted prior Comp i ss opinions where the Commission has taken no action in relation to failure to file Statements of Financia Interests. The fact that the Commission may in one particular situation, take no action yet in another situation impose a ,restitution requirement or refer the matter for criminal prosecution,-is determined on a case -by -case bass depending upon all of the circumstances surrounding the matter. As a quasi- judicie body required to dispose of matters based upon facts, this Commission has the discretion to reach conclusions that may differ from conclusions reached in previous cases. C. Conclusion: It was a v olat of the State Et'e ce rs% °,ten you failed to file Statements of Financial Interests fer the ,pears : Ere and 1984 when you served as township auditor in Richland Township, `. Because these statements were filed upon notification b!- the State Ethics Commission of the requirement to do so, and in light of the eet that you had no financial dealings with the township, and based upon t€ e - feet that efforts may have been taken to prevent your receipt of the Statements of Financial Interests, we will take no further action in this matter. Mr. Kerry Corbett Page 5 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 on the fifth day after service (defined as mailing). By the Commission, G. Sieber Pancoast Chairman