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HomeMy WebLinkAbout1292 McClearyIn Re: Karl McCleary 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 Paul M. Henry 03 -019 Order No. 1292 9/15/03 9/29/03 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 allegation(s). Upon completion of its investi9ation the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was not filed and a hearing was waived. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Stipulation of Findings is quoted as the Findings in this Order. The Consent Agreement was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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 Act 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. McCleary 03 -019 Page 2 I. ALLEGATION: The allegation is that Karl McCleary, a (public official /public employee) in his capacity as Manager for Jackson Township, York County, violated Sections 1104(a) and 1104(d) provisions of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § §1104(a) and 1104(d) when he failed to file a Statement of Financial Interests for the 2000 calendar year by May 1, 2001; and when he subsequently completed and backdated the Statement of Financial Interest, creating the impression that the form was timely filed. II. FINDINGS: 1. Karl McCleary has served as the township manager for Jackson Township, York County, since approximately 1997. a. As manager, McCleary is a full -time township employee. 2. McCleary's general job duties as manager includes [sic] oversight of the day to day operations of the township, including purchasing. a. McCleary is responsible for all township records in concert with the township secretary. b. McCleary also is responsible for the distribution and retention of Statements of Financial Interests forms. 3. Statements of Financial Interests for Jackson Township Officials are maintained by Manager McCleary at the Jackson Township Municipal Building. a. Statements of Financial Interests for Jackson Township are maintained in a locked file cabinet in the township building. b. Current township officials are the only persons with access to township files including Statements of Financial Interests. 4. Statements of Financial Interests forms were annually mailed to Jackson Township by the Administrative Division of the State Ethics Commission. a. In 1999 blank forms were mass mailed to all Commonwealth municipalities on February 9, 1999. b. The 2000 forms SEC -1, Rev. 1/00 were bulk mailed on January 21, 2000. c. The 2001 forms SEC -1, Rev. 1/01 were bulk mailed on December 29, 2000. d. The 2002 form SEC -1, Rev. 1/02 were bulk mailed on December 14, 2001. e. The 2003 forms SEC -1, Rev. 1/03 were bulk mailed on December 18, 2002. 5. The Pennsylvania State Ethics Commission contracts the printing of Statements of Financial Interests annually. a. From 1999 though 2003 the State Ethics Commission contracted with Vanguard Printing and Digital Ink Printing Co. respectively. b. Orders for forms are placed with the printers in December of the preceding year. c. Forms are received by the Administrative Division of the State Ethics McCleary 03 -019 Page 3 Commission in early to mid January of the filing year. d. Forms are then bulk mailed to each municipality in the Commonwealth of Pennsylvania. 6. Each year when forms are printed an identification date is listed in the upper left hand corner of the form. a. Forms printed in 1999 contain an identification date of SEC -1 1/99, while forms printed in 2000, 2001, 2002 and 2003 contained identification dates of SEC -1, 1/00, SEC -1, 1/01, SEC -1, 1/02 , and SEC -1, 1 -03, respectively. 7. Since at least 1999 McCleary has annually received blank Statements of Financial Interests forms from the State Ethics Commission at the township. a. McCleary confirmed annually receiving blank SFI forms. b. McCleary indicated that he did not always distribute blank SFI forms to township officials. 8. McCleary did not utilize any formal process for the completion of Statements of Financial Interests for himself or other Jackson Township officials. a. McCleary did not maintain any records relating to township officials who filed completed SFI forms or the date filed. b. Jackson Township does not date or time stamp SFIs filed by public officials and public employees. 9. McCleary in his official capacity as Jackson Township Manager was annually required to file a Statement of Financial Interests form by May 1 with information pertaining to the prior calendar year. 10. McCleary failed to file a Statement of Financial Interests form by May 1, 2001, with information relating to the 2000 calendar year. 11. In or about January 2003 McCleary received a verbal request from a township resident to review various township records including Statements of Financial Interest forms. a. McCleary researched township files to find records to comply with the request. 12. McCleary determined that Statements of Financial Interests forms were not on file for himself or for other township officials. a. McCleary had not filed for the 2000 calendar year. 13. Between January 2003 and February 21, 2003, McCleary completed a Statement of Financial Interests form for calendar year 2000. 14. On February 21, 2003, a Statement of Financial Compliance Review was conducted in Jackson Township, York County, by an investigator of the State Ethics Commission. a. The compliance review covered SFI filings for calendar years 1999, 2000 and 2001. b. McCleary provided all SFIs on file with the township for review by the Ethics Commission on February 21, 2003. McCleary 03 -019 Page 4 15. McCleary's Statement of Financial Interests on file for calendar year 2000 was backdated to give the impression that the form was filed by May 1, 2001. a. The form filed by McCleary for the 2000 calendar year was filed by McCleary on an SFI form with a revision date of SEC -1, Rev. 1/02. b. McCleary signed this form and wrote a filed date of February 20, 2001. c. SFI forms with a revision date of SEC -1, 01/02 were not mailed to municipalities until December 14, 2001. d. McCleary dated this filing almost ten (10) months prior to the form being mailed to municipalities. e. Above the signature line on all blank SFI forms is the following statement: "The undersigned hereby affirms that the foregoing information is true and correct to the best of said person's knowledge, information and belief; said affirmation being made subject to the penalties prescribed by 18 Pa.C.S.A. §4940 E (Unsworn Falsification to Authorities) and the Public Official and Employee thics Act, 65 Pa.C.S. §1109(b)." 16. McCleary's backdated SFI for calendar year 2000 included the following information: a. Calendar Year: Filed: Position: Creditors: Direct /Indirect Income: All Other Financial Interest: 17. McCleary admitted to backdating his Statement of Financial Interests form for calendar year 2000 to an Ethics Commission investigator on April 29, 2003. a. McCleary completed an amended SFI for calendar year 2000 on April 29, 2003, after admitting to backdating his previous 2000 filing. 18. McCleary's amended SFI for calendar year 2000 included the following information: a. Calendar Year: Filed: Position: Occupation: Creditors: Direct /Indirect Income: All Other Financial Interests: 2000 02/20/01 on SEC -1 Form Rev. 1/02 Manager None Jackson Township None 2000 04/29/03 on SEC -1 Form Rev. 1/03 Manager Township Manager None Jackson Township None III. DISCUSSION: At all times relevant to this matter, the Respondent, Karl McCleary, hereinafter McCleary, has been a public employee subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401, et se as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegation is that McCleary, as Manager for Jackson Township (Township), York County, violated Sections 1104(a) and 1104(d) of the Ethics Act when he failed to file a McCleary 03 -019 Page 5 Statement of Financial Interests (SFI) for the 2000 calendar year by May 1, 2001; and when he subsequently completed and backdated the SFI, creating the impression that the form was timely filed. §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). Section 1104(a) of the Ethics Act 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. Pursuant to Section 1104(a) of the Ethics Act quoted above, McCleary was required to file an SFI for calendar year 2000 with the Township on or before and May 1, 2001. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are reproduced above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. McCleary has served as a Manager for the Township since 1997. As a public employee, McCleary is required to file SFI's with the Township by May 1 of each year that he holds the position of Township Manager as well as of the year after he leaves such a position. Each year, the Administrative Division of this Commission performs a bulk mailing of blank SFI forms to municipalities throughout the Commonwealth including the Township. Blank SFI forms for the 2000 calendar year were mailed by this Commission to the Township for distribution to public officials and public employees in December of 2000. The SFI forms mailed by this Commission bore different identification dates depending upon the year of printing: 2000 forms were marked SEC -1, Rev. 1/00; 2001 forms were marked SEC -1, Rev. 1/01; 2002 forms were marked SEC -1, Rev. 1/02; and 2003 forms were marked SEC -1, Rev. 1/03. Although McCleary received the blank SFI forms from this Commission, he failed to file his SFI for calendar year 2000 by Ma 1, 2001. When a township resident in January of 2003 sought to review records and SFI's of Township officials, McCleary realized that he had not filed for the 2000 calendar year. An SFI compliance review was conducted by an investigator of this Commission on February 21, 2003, for calendar years 1999, 2000, and 2001. When McCleary turned overall the SFI's on file, he included an SFI for himself for the 2000 calendar year with a purported filing date of February 20, 2001. The SFI had a revision date of 01/02 which form had been McCleary 03 -019 Page 6 bulk mailed from this Commission on December 14, 2001. Thus, that SFI form was not mailed to the Township until 10 months after McCleary purportedly signed it. McCleary subsequently admitted that he backdated his SFI for the calendar year 2000. Such action by McCleary created the appearance that he had timely filed. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations. The Consent Agreement proposes that this Commission find a violation of Section 1104(a) of the Ethics Act by McCleary, as the manager for Jackson Township, when he failed to file an SFI for the 2000 calendar year by May 1, 2001, and when he subsequently backdated the form filed for the 2000 calendar year; and an agreement by McCleary to make payment in the amount of $250 through this Commission to the Commonwealth of Pennsylvania in settlement of this matter within thirty (30) days of the issuance of this Order. As a public employee, McCleary is required to annually file SFI's. Despite the legal requirement of the Ethics Act, McCleary failed to comply with the law. The record reflects that after receiving blank SFI's, McCleary did not file for calendar year 2000. This became evident when a resident wanted to review Township records, including SFI's. McCleary then completed an SFI for calendar year 2000 and backdated it. Such action by McCleary gave the impression that the form was timely filed. The printer's identification date on the SFI form filed by McCleary for calendar year 2000 establishes that McCleary backdated his SFI, as that particular form was neither in print nor in circulation during the purported filing. McCleary has now amended his SFI for calendar year 2000 reflecting the actual date of fling. Accordingly, we find that McCleary violated Section 1104(a) of the Ethics Act when he failed to timely file an SFI for calendar year 2000, and when he backdated his SFI for that calendar year. We determine that the Consent Agreement submitted by the parties sets forth the proper disposition for this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, we direct McCleary to make payment in the amount of $250 to the Commonwealth of Pennsylvania through this Commission within 30 days of the date of mailing of this Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. McCleary, as a Jackson Township Manager, is a public employee subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. McCleary violated Section 1104(a) of the Ethics Act when he failed to timely file an SFI for calendar year 2000, and when he backdated his SFI for that calendar year. In Re: Karl McCleary ORDER NO. 1292 File Docket: 03 -019 Date Decided: 9/15/03 Date Mailed: 9/29/03 1. McCleary, as a Jackson Township Manager, violated Section 1104(a) of the Ethics Act when he failed to timely file an SFI for calendar year 2000, and when he backdated his SFI for that calendar year. 2. Per the Consent Agreement of the parties, McCleary is directed to make payment in the amount of $250 to the Commonwealth of Pennsylvania through this Commission within 30 days of the date of mailing of this Order. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair