HomeMy WebLinkAbout1255 TracyIn Re: DewVaul Tracy, Jr.
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Daneen E. Reese
Frank M. Brown
Donald M. McCurdy
Michael Healey
02- 029 -C2
Order No. 1255
12/4/02
12/10/02
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted an
investigation regarding a possible violation of the Public Official and Employee Ethics Act, Act
9 of 1989, P.L. 26, 65 P.S. §401 et seq., as codified by Act 93 of 1998, Chapter 11, 65
Pa.C.S. §1101 et seq., by the above -named Respondent. At the commencement of its
investi9ation, the Investigative Division served upon Respondent written notice of the specific
allegations. Upon completion of its investi9ation, the Investigative Division issued and served
upon Respondent a Findings Report identified as an "Investigative Complaint." A generalized
letter with attachments was received from Respondent, which is deemed an admission of the
findings. A hearing was deemed waived. The record is complete.
Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11,
Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion of
pending matters under Act 93 of 1998.
This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and
will be made available as a public document thirty days after the mailing date noted above.
However, reconsideration may be requested. Any reconsideration request must be received at
this Commission within thirty days of the mailing date and must include a detailed explanation
of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code
§21.29(b). A request for reconsideration will not affect the finality of this adjudication but will
defer its public release pending action on the request by the Commission.
The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of
1998. Any person who violates confidentiality of the Ethics Law is guilty of a misdemeanor
subject to a fine of not more than $1,000 or imprisonment for not more than one year.
Confidentiality does not preclude discussing this case with an attorney at law.
Tracy 02- 029 -C2
Page 2
ALLEGATION:
That DewVaul Tracy, a (public official /public employee) in his capacity as a member of
the Fayette County Board of Assistance, violated the following provisions of the Ethics Act
(Act 93 of 1998) when he failed to file a [sic] Statement[s] of Financial Interests for the
calendar years 2000 and 2001 by May 1, 2001, and May 1, 2002, respectively.
Section 1104. Statement of financial interests required to be filed.
(a) Public official or public employee.--Each public official of the
Commonwealth shall file a statement of financial interests for the preceding
calendar year with the commission no later than May 1 of each year that he
holds such a position and of the year after he leaves such a position. Each
public employee and public official of the Commonwealth shall file a statement
of financial interests for the preceding calendar year with the department,
agency, body or bureau in which he is employed or to which he is appointed or
elected 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 or public
official shall file a statement of financial interests with the governing authority of
the political subdivision by which he is employed or within which he is appointed
or elected no later than May 1 of each year that he holds such a position and of
the year after he leaves such a position. Persons who are full -time or part -time
solicitors for political subdivisions are required to file under this section.
65 Pa.C.S. §1104(a).
II. FINDINGS:
1. The Investigative Division of the State Ethics Commission received a signed, sworn
complaint alleging that DewVaul Tracy, Jr., violated provisions of the State Ethics Act
(Act 93 of 1998).
2. Upon review of the complaint, the Investigative Division initiated a preliminary inquiry
on March 20, 2002.
3. The preliminary inquiry was completed within sixty days.
4. On May 17, 2002, a letter was forwarded to DewVaul Tracy, Jr., by the Investigative
Division of the State Ethics Commission informing him that a complaint against him
was received by the Investigative Division and that a full investigation was being
commenced.
a. Said letter was forwarded by certified mail, no. 7001 1940 0001 2179 5421.
b. The domestic return receipt bore the signature of DewVaul Tracy, Jr., with a
delivery date of May 21, 2002.
6. Periodic notice letters were forwarded to DewVaul W. Tracy, Jr., in accordance with the
provisions of the Ethics Law advising him of the general status of the investigation.
7. The Investigative Complaint was mailed to the Respondent on November 7, 2002.
8. DewVaul W. Tracy, Jr. has served as a member of the Fayette County Board of
Assistance ( "Board ") since September 3, 1980.
Tracy 02- 029 -C2
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9. The board is comprised of seven members who are appointed by the Pennsylvania
General Assembly.
a. Members are appointed to a specific term but serve on the board until a
successor is appointed and qualified or they resign.
b. Board members do not receive compensation for serving on the board but do
receive reimbursement for expenses associated with board related travel.
c. The board schedules meetings on a monthly basis but only holds meetings on
an as- needed basis when a quorum of the members can attend.
10. Members of the board have annually been provided with Statements of Financial
Interests (SFI) to complete and file with the board.
11. Each year county personnel notify board members by letter of their need to file an SFI
for the previous calendar year.
a. All board members received the same letter.
b. Enclosed with the letter are a blank SFI and a pre- addressed stamped envelope
to return the completed SFI to the county.
12. Each year that he has served on the board, DewVaul W. Tracy, Jr., ( "Tracy ") has
received notification of the filing requirement, as well as blank forms.
13. DewVaul W. Tracy, Jr., did not file Statements of Financial Interests for the 2000
calendar year by May 1, 2001, or the 2001 calendar year by May 1, 2002.
14. County records confirmed that Tracy was provided a letter explaining his need to file an
SFI for calendar year 2000 and a blank SFI via mail on March 27, 2001.
a. All board members, except Tracy, filed a 2000 SFI with the county in a timely
manner.
15. The Administrative Division of the State Ethics Commission was notified in or about
January 2002, that DewVaul Tracy, Jr., failed to file an SFI for the 2000 calendar year.
a. Notification was received from the Governor's Office of Administration.
16. A notice letter dated January 25, 2002, was sent by the Administrative Division to
Tracy directing him to file an SFI for the 2000 calendar year.
a. The notice letter provided that civil proceedings would be initiated against Tracy
if he did not file the required SFI within twenty (20) days after receiving the
notice letter.
17. Tracy failed to comply with the January 25, 2002, notice letter and did not file an SFI
for calendar year 2000 within the specified twenty (20) days.
18. By letter dated March 5, 2002, the State Ethics Commission provided a final notice to
Tracy of its intent to commence civil penalty proceedings for his failing to file an SFI for
calendar year 2000.
a. The notice letter provided that civil proceedings would be initiated against Tracy
if he did not file the required SFI within twenty (20) days after receiving the
notice letter.
Tracy 02- 029 -C2
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b. The notice letter was sent by certified mail no. 7001 1940 0001 2179 2888.
c. The return receipt born the signature of Sandra Tracy with a delivery date of
March 11, 2002.
19. Tracy failed to comply with the final notice letter and did not file an SFI for calendar
year 2000 within the specified twenty (20) days.
20. An SFI compliance review was conducted of the board by the Investigative Division of
the State Ethics Commission on May 1, 2002.
a. It was determined during this review that Tracy had not filed an SFI for the 2000
calendar year and had also failed to file a 2001 SFI by May 1, 2002.
21. Tracy filed an SFI for calendar year 2000 which was dated May 31, 2002.
a. The form was received in the offices of the State Ethics Commission on June 1,
2002.
b. This filing was made sixty -eight (68) days after the deadline set in the March 5,
2002, final notice.
22. The form Tracy filed for the 2000 calendar year listed his occupation as retired teacher.
a. Tracy listed "none" on all financial categories including direct /indirect sources of
income and creditors.
b. Tracy failed to disclose Howard County Public Schools and the Commonwealth
of Pennsylvania (Public School Employees Retirement System) as a direct or
indirect source of income on line 10.
1. In calendar year 2000, Tracy was paid $25,629.81 by the Howard
County, Maryland Public Schools.
c. Tracy failed to disclose Howard County Public Schools, Albert Gallatin School
District, Uniontown Area School District, and the Southeastern Greene School
District as employment in any business on line 13.
1. Tracy's tax returns for the 2000 calendar year confirm his employment
and receipt of income.
23. Tracy filed additional SFI's for calendar year 2000 with the State Ethics Commission
on October 11, 2002, and October 31, 2002.
a. The information listed on the October 9, 2002, form was identical to the
information on the 2000 form filed on May 31, 2002, with the exception of
creditors, line 9.
1. Tracy disclosed "VISA" as a creditor with interest rates of 16% and 18%
on the October 9, 2002, form.
2. Tracy disclosed no sources of income.
b. The form dated October 30, 2002, and received on October 31, 2002, by the
State Ethics Commission disclosed sources of income as follows:
Howard County Public Schools
Southeastern Greene School District
$ 25,629.81
$ 1,280.00
Tracy 02- 029 -C2
Page 5
Uniontown Area School District $ 240.00
Albert Gallation [sic] School District $ 780.00
24. Tracy was not provided a blank SFI for calendar year 2001 before May 1, 2002
because of an administrative oversight by county personnel.
a. None of the board members were provided with a blank SFI for calendar year
2001 before May 1, 2002.
25. By letter dated May 6, 2002, from the county Tracy and the other board members were
requested to complete SFI's for calendar year 2001 to be filed with the county
immediately.
a. Tracy was provided a blank SFI and a pre- addressed stamped envelope with
this notification.
26. Tracy failed to file an SFI for calendar year 2001 by May 1, 2002 or after receiving the
May 6, 2002 letter from the county requesting that he file the SFI immediately.
a. All of the other board members filed and [sic] SFI for calendar year 2001 after
receiving the May 6, 2002 [letter].
27. Tracy filed two SFI's for calendar year 2001 as a result of contacts with an investigator
from the State Ethics Commission in October 2002.
a. The first form was dated October 9, 2002, and received by the State Ethics
Commission on October 11, 2002.
1. Tracy reported "none" on all financial categories except creditors.
2. Tracy disclosed "VISA," 16 % -18% as a creditor.
b. Tracy's second filing for calendar year 2001 was dated October 30, 2002, and
received by the State Ethics Commission on October 31, 2002.
1. Tracy disclosed the following:
Creditors: Nissan Motor
Acceptance Co. 11.75%
Sources of Income: PA Public Employees
Retirement System $ 19,466.40
Uniontown School District $ 1,200.00
Southeastern Greene
School District $ 1,120.00
Albert Gallation [sic]
School District $ 775.00
28. Tracy has been the subject of previous enforcement actions by the State Ethics
Commission for his failure to file SFI's.
a. Tracy has paid the following civil penalties for failing to file SFI's:
Filing Year Order No. Civil Penalty
1990 018 -S $250
1992 068 -S $250
1993 068 -S $250
Tracy 02- 029 -C2
Page 6
1994 071 -S $250
b. Tracy was taken into custody by the Pennsylvania State Police, in accordance
with a Commonwealth Court Order of Arrest, in 1997 for failing to file SFI's for
calendar years 1992, 1993, and 1994.
1. Tracy was found in contempt of a Commonwealth Court Order directing
him to file SFI's and pay associated civil penalties.
29. In all of the foregoing years, Tracy received specific written notice of the Statement of
Financial Interests filing requirement.
30. Tracy provided a sworn statement on October 21, 2002, to an investigator for the
Investigative Division of the State Ethics Commission.
a. Tracy admitted that he was aware that he was required to file SFI's and was
provided with the forms to do so for calendar years 2000 and 2001.
b. Tracy claimed that he minimized the need to the file SFI's because he did not
feel his position was a "high level" position of authority.
c. Tracy further claimed that he did not feel that it was important to file SFI's even
after being the subject of previous commission enforcement actions.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, DewVaul Tracy, hereinafter Tracy,
has been a public official subject to the provisions of the Public Official and Employee Ethics
Law ( "Ethics Act "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, et seq., as codified by the
Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et
seq.
The issue is whether Tracy, as a member of the Fayette County Board of Assistance,
violated Section 1104(a) of the Ethics Act when he failed to timely file Statements of Financial
Interests (SFI's) for calendar years 2000 and 2001 by May 1, 2001, and May 1, 2002,
respectively.
Section 1104(a) of the Ethics Act quoted above requires that each public official/ public
employee must file an SFI for the preceding calendar year, each year that he holds the
position and the year after he leaves it.
Preliminarily, we note that Tracy filed a response to the Investigative Complaint, which
response was received on November 18, 2002. Tracy's response was not an answer, but
merely a letter in which he admitted that he failed to file SFI's for the 2000 and 2001 calendar
years in a timely manner and apologized for failing to exercise proper judgment, and to which
he attached copies of SFI's for the 2000 and 2001 calendar years, which are dated October
30, 2002. In that Tracy has failed to file an answer to the Investigative Complaint, the
averments therein are deemed admitted.
Having noted the issues and applicable law, we shall now summarize the relevant facts.
Tracy has served as a member of the Fayette County Board of Assistance (Board)
since September 3, 1980. Board members are appointed by the General Assembly.
Each year, Fayette County (County) mails a letter to each Board member advising of
the need to file with the Board an SFI for the previous calendar year. Enclosed with the letter
is a blank SFI and a pre- addressed stamped envelope to the County. Although Tracy
Tracy 02- 029 -C2
Page 7
received annual notices from the County, he failed to file SFI's for the 2000 and 2001
calendar years by May 1, 2001, and May 1, 2002, respectively.
On January 25, 2002, the Administrative Division of the State Ethics Commission
mailed a notice letter to Tracy directing him to file an SFI for the 2000 calendar year within
twenty (20) days. Tracy failed to comply with the notice letter and did not file an SFI for the
2000 calendar year.
On March 5, 2002, the State Ethics Commission ave Tracy final notice of its intent to
commence civil penalty proceedings within twenty (20) days if he continued to be
noncompliant. Tracy failed to comply with the State Ethics Commission's final notice and did
not file an SFI for the 2000 calendar year.
After conducting an SFI compliance review, the Investigative Division determined that
Tracy also had not filed an SFI for the 2001 calendar year.
On June 1, 2002, the State Ethics Commission received from Tracy an SFI for the
2000 calendar year. On the SFI, Tracy indicated that he was a retired teacher. Tracy wrote
"none" in block 10, direct /indirect sources of income. In calendar year 2000, Tracy received
$25,629.81 from the Howard County Maryland Public Schools.
On October 11, 2002, and October 31, 2002, Tracy filed additiopal SFI's for calendar
year 2000 with the State Ethics Commission. The SFI filed October 11 h contained the same
information as the SFI Tracy previously filed in June, with the addition that he listed VISA as a
creditor with interest rates of 16% and 18 %. Tracy again listed no sources of income. On the
SFI filed on October 31 Tracy disclosed the following sources and amounts of income:
Howard County Public Schools - $25,629.81; Southeastern Greene School District - $1,280;
Uniontown Area School District - $240; and Albert Gallatin School District - $780.
Due to administrative oversight, the County did not provide Tracy or any other Board
member with annual notices and blank SFI forms to file for the 2001 calend year until May 6,
2002. All Board members except Tracy complied with the County's May 6 notice letter and
filed SFI's for the 2001 calendar year.
After an investigator from the State Ethics Commission contacted Tracy concerning his
delinquent forms, he filed two SFI's for calendar year 2001 — ere on October 11, 2002, and
the other on October 31, 2002. On the SFI filed October 11 marked "none" on all
financial categories, except the category for creditors, in which he disclosed VISA with an
interest rate of 16% - 18 %. On the SFI filed October 31 Tracy disclosed the following
information: Creditors: Nissan Motor Acceptance Co. — 11.75 %; Sources of Income: PA
Public Employees Retirement System - $19,466.40; Uniontown School District - $1,200;
Southeastern Greene School District - $1,120; and Albert Gallatin School District - $775.
Tracy has been ordered by the State Ethics Commission to pay civil penalties for failing
to file SFI's for the following calendar years: 1990 - $250; 1992 - $250; 1993 - $250; and
1994 - $250. In addition, Tracy has been arrested by the Pennsylvania State Police for
contempt of a Commonwealth Court Order directing him to file SFI's and pay civil penalties.
Tracy provided a sworn statement to the State Ethics Commission: (1) admitting that he
was aware that he was required to file SFI's and that he was provided with blank SFI forms to
file for the calendar years 2000 and 2001; (2) claiming that he minimized the need to file SFI's
because he did not feel his position was a "high level" position of authority; and (3) claiming
that he did not feel that it was important to file SFI's even after being the subject of previous
Commission enforcement actions.
The Investigative Division has filed a position statement in this case. Tracy has not
filed a position statement.
Tracy 02- 029 -C2
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The Investigative Division in its position statement seeks: (1) a violation of Section
1104(a) of the Ethics Act on the basis that Tracy, as a member of the Fayette County Board
of Assistance, failed to file SFI's for calendar years 2000 and 2001 by May 1, 2001, and May
1, 2002, respectively, with Fayette County; (2) a violation of Section 1104(a) of the Ethics Act
on the basis that Tracy, as a member of the Fayette County Board of Assistance, failed to file
SFI's for calendar years 2000 and 2001 with Fayette County and the State Ethics
Commission; (3) a civil penalty in the amount of $250 as a result of Tracy's failure to file a
properly completed SFI for the 2000 calendar year within the twenty (20) day grace periods
following service of the required notices; (4) a referral to the Office of Attorney General and
District Attorney of Fayette County with the Commission's recommendation for the institution
of a criminal prosecution against Tracy as to violations of the Ethics Act; (5) a declaration that
Tracy is ineligible to take the oath of office or enter or continue upon his public duties as a
Board member since May 1, 2001; and (6) and action by the Commission to seek or
recommend the removal of Tracy from public office as a member of the Fayette County Board
of Assistance.
Having summarized the above relevant facts we must now determine whether the
actions of Tracy violated Section 1104(a) of the Ethics Act.
For the relevant time period, Tracy, as a member of the Fayette County Board of
Assistance, was a public official required to annually file an SFI on or before May 1 for the
prior calendar year. In this case, the record reflects that Tracy was aware of the filing
requirements under the Ethics Act, having received a notice letter and a blank SFI from the
County each year. Nevertheless, Tracy failed to file SFI's for the calendar years 2000 and
2001 on or before each May 1 S deadline. In light of the fact that Tracy failed to file an answer
to the Investigative Complaint, he is deemed to have admitted the averments in the
Investigative Complaint. Accordingly, we find that Tracy violated Section 1104(a) of the Ethics
Act in each instance when he failed to timely file SFI's for the calendar years 2000 and 2001
with the Fayette County Board of Assistance, State Ethics Commission, and Governor's
Office of Administration.
For the calendar year 2000, the SFI's filed by Tracy on June 1, 2002, and October 11,
2002, were deficient in that as a matter of law, Tracy was required to disclose direct or indirect
sources of income totaling in the aggregate of $1,300 or more, excluding governmentally
mandated payments, such as retirement income from the Public School Employees
Retirement System. Tracy failed to list income from the Howard City Public Schools, from
which he received income of $25,629.81 in calendar year 2000. See, Fact Finding 22.b.1.
We note, however, that Tracy did list the Howard City Public Schools as a direct or indirect
source of income on his amended SFI filed with the State Ethics Commission on October 31,
2002. Further, as to the failure by Tracy to disclose in Block 13 his employment with the
Howard County Public Schools, Albert Gallatin School District, Uniontown Area School
District, and the Southeastern Greene School District on his 2000 calendar year SFI's filed on
June 1, 2002, and October 11, 2002, it is noted that the term "business" as defined in the
Ethics Act does not include a governmental body. See, 65 Pa.C.S. §1102.
Having established violations by Tracy as to the 2000 and 2001 SFI's, we must
consider whether a referral to law enforcement is appropriate.
The actions of Tracy warrant the referral of this case to a law enforcement agency with
our recommendation that a criminal prosecution be instituted. Based upon the record before
us, Tracy's conduct was knowing, reckless and /or intentional. Tracy admitted that he was
aware that he was required to file SFI's, and that he was provided with blank SFI forms to file
for the calendar years 2000 and 2001. Tracy further admitted that he minimized the need to
file SFI's because he did not feel that his position was a "high level" position of authority, and
because he did not feel that it was important to file SFI's even after being the subject ect of
previous commission enforcement actions. Such prior enforcement actions resulted the
imposition of civil penalties for failing to file SFI's for calendar years 1990, 1992, 1993, and
1994, and his arrest in 1997 for contempt of a Commonwealth Court Order directing him to file
Tracy 02- 029 -C2
Page 9
SFI's and pay associated civil penalties. See, Fact Findings 28.a., b.1.; 30. a. -c. A review of
the record reflects that the Section 1104(a) violations were not a result of inadvertent oversight
on the part of Tracy. To the contrary, Tracy, by his own admissions, was well aware that he
was statutorily required to file annual SFI's, but chose instead to blatantly, consciously and
repeatedly disregard the Ethics Act.
We conclude that there is a reasonable expectation that a prosecution would be
instituted against Tracy. It is our view that a jury or court as fact finder would have a sufficient
basis to conclude that Tracy acted intentionally, knowingly, or recklessly with respect to the
conduct we have reviewed in this matter. See, 18 Pa.C.S. § 302(c). Accordingly, this case
shall be referred to both the Office of Attorney General and the Fayette County District
Attorney with the Commission's recommendation for the institution of a criminal prosecution
against Tracy as to violations of the Ethics Act.
With respect to the Investigative Division's request for the imposition of a $250 civil
penalty in addition to a referral for criminal prosecution, we note that this matter proceeded as
an investigation. Although there is a statutory basis for imposing a penalty of up to a
maximum of $250 per occurrence upon a public official /public employee who fails to file orfiles
a deficient SFI, such a penalty may be imposed when a case is processed through the civil
penalty process using a rule to show cause. See, 65 Pa.C.S. § 1109(f). In that the instant
matter has not proceeded through the civil penalty process, but rather through an
investigation, we will not impose a civil penalty against Tracy.
The Investigative Division requests that the Commission declare Tracy ineligible to
continue in his public duties /take appropriate steps to seek or recommend the removal of
Tracy from public office. Tracy is a chronic non -filer whose conduct reflects a blatant
disregard for the public trust. Section 1104(d) of Ethics Act provides that "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
as required by this chapter." This Commission, as an administrative agency, will refer this
matter for criminal prosecution, which referral will also include a request for review as to filing
an action to remove Tracy from public office.
IV. CONCLUSIONS OF LAW:
1. Tracy, as a member of the Fayette County Board of Assistance, is a public official
subject to the provisions of Act 9 of 1989/Act 93 of 1998, Chapter 11.
2. Tracy violated Section 1104(a) of the Ethics Act in each instance when he failed to file
Statements of Financial Interests for calendar years 2000, and 2001, by May 1, 2001,
and May 1, 2002, respectively with the Fayette County Board of Assistance, State
Ethics Commission, and Governor's Office of Administration.
In Re: DewVaul Tracy
ORDER NO. 1255
File Docket: 02- 029 -C2
Date Decided: 12/4/02
Date Mailed: 12/10/02
1. Tracy, as a member of the Fayette County Board of Assistance violated Section
1104(a) of the Ethics Act in each instance when he failed to file Statements of
Financial Interests for calendar years 2000, and 2001, by May 1, 2001, and May 1,
2002, respectively with the Fayette County Board of Assistance, State Ethics
Commission, and Governor's Office of Administration.
2. This case shall be referred to both the Office of Attorney General and the Fayette
County District Attorney with the Commission's recommendation for the institution of a
criminal prosecution against Tracy as to the above violations of the Ethics Act, and for
review as to filing an action to remove Tracy from public office.
BY THE COMMISSION,
Louis W. Fryman, Chair