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Home My WebLink About175-S KellyIN RE: Rowan P. Kelly, Jr. Respondent File Docket: X -ref: Date Decided: Date Mailed: 03 -030 -P Order 175 -S 12/1/03 12/15/03 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Donald M. McCurdy Michael Healey Paul M. Henry This is a final adjudication of the State Ethics Commission as to the alleged delinquency and /or deficiency of Statement(s) of Financial Interests required to be filed pursuant to Sections 1104 and 1105 of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. The Investigative Division initiated these proceedings by filing with the State Ethics Commission and serving upon Respondent a Petition for Civil Penalty(ies ). An Order to Show Cause was issued to Respondent. An Answer was not filed by the Respondent, and a hearing was waived. The parties filed a Stipulation of Findings, which is quoted as the Findings in this Order. A Consent Agreement was also submitted by the parties to the Commission for consideration which was subsequently approved. This is a final Order, and it is publicly available upon issuance. Reconsideration may be requested, but a request for reconsideration will not affect the finality of this adjudication or its availability as a public document. Any reconsideration request must be received at this Commission within thirty days of the mailing date noted above 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). Kelly 03 -030 -P Page 2 I. FINDINGS: 1. Respondent is an adult individual who resides or maintains a mailing address at 203 N. Essex Avenue, Apt. #2, Narbeth, PA 19072 -1820. 2. At all times relevant to these proceedings, Respondent has been a Welfare Fraud Investigator and as such Respondent has at all times relevant to these proceedings been a "public official /public employee" as that term is defined in Section 2 of the Ethics Law, 65 Pa.C.S. §1102. 3. Respondent as a public official [sic] is subject to the Statement of Financial Interests filing provisions of the Ethics Law. 4. Respondent has failed to provide full financial disclosure as required by the Ethics Law. Respondent has failed to file [a] Statements [sic] of Financial Interests for calendar year(s) 2001 with the State thics Commission [sic], which Statements [sic] of Financial Interests were [sic] to be filed by May 1 of 2002, and Respondent has therefore transgressed Sections 4 and 5 of the Ethics Law, 65 Pa.C.S. §1104,1105. 5. By Notice letter dated April 14, 2003, Respondent was served with Notice in accordance with Section 7(5) of the Ethics Law of the specific allegations against Respondent concerning the above transgression. Said Notice letter provided Respondent an opportunity to avoid the institution of these civil penalty proceedings by filing [an] accurate and complete Statements [sic] of Financial Interests for calendar year(s) 2001 within twenty (20) days of the date of the Notice letter. Respondent has failed and refused to file [a] Statements [sic] of Financial Interests for calendar year(s) 2001 so as to comply with the specific requirements of the Ethics Law. 6. By Final Notice letter dated June 10, 2003, Respondent on July 22, 2003, was served with Notice in accordance with Section 7(5) of the Ethics Law of the specific allegations against Respondent concerning the above transgression. Said Notice letter provided Respondent an opportunity to avoid the institution of these civil penalty proceedings by filing [an] accurate and complete Statements [sic] of Financial Interests for calendar year(s) 2001 within twenty (20) days of the date of the Notice letter. Respondent has failed and refused to file [a] Statements [sic] of Financial Interests for calendar year(s) 2001 so as to comply with the specific requirements of the Ethics Law. 7. Section 9(f) of the Ethics Law provides: Section 9. Penalties (f) In addition to any other civil remedy or criminal penalty provided for in this act, the commission may, after notice has been served in accordance with section 7(5) and upon a majority vote of its members, levy a civil penalty upon any person subject to this act who fails to file a statement of financial interests in a timely manner or who files a deficient statement of financial interests, at a rate of not more than $25 for each day such statement remains delinquent or deficient. The maximum penalty payable under this paragraph is $250. 65 Pa.C.S. §1109(f). 8. For each violation the Commission finds, Respondent is subject to civil penalty liability under Section 9(f) of the Ethics Law, 65 Pa. C.S. §1109(f) at a rate of not more than $25.00 per day for each day the Statement of Financial Interests remains delinquent or deficient, for a maximum civil penalty of $250.00 per violation. Because Respondent Kelly 03 -030 -P Page 3 has committed one (1) violation alleged herein, Respondent is subject to total maximum civil penalty liability of $250.00 for said violation. 9. Despite an extended leave of absence from the Commonwealth since September 7, 2000, for a work - related injury, Respondent was notified in writing by the Office of Administration on three occasions (February 5, 2003; March 11, 2003; April 7, 2003) that he was still required to complete and file his annual reporting forms under the Governor's Code of Conduct and the State Ethics Act. 10. Respondent was injured on the job on September 6, 2000, and placed on injury leave effective September 7, 2000. On March 14, 2001, he was placed on injury leave without pay with benefits. On September 14, 2001, Respondent was placed on injury leave without pay, without benefits. 11. Per the Office of Administration, Respondent has not been at work since September 7, 2000. 12. Effective September 6, 2003, Respondent has exhausted his three year eligibility period for injury leave, and may be removed from the Office of Inspector General complement, according to OA. 13. See, Mattern, SEC Opinion 98 -007, Page 3, Paragraph 6, finding that a public employee on a leave of absence must still comply with the State Ethics Act's reporting requirements. II. DISCUSSION: As a Welfare Fraud Investigator for the Department of Public Welfare, Rowan P. Kelly, Jr. was at all times relevant to these proceedings a "public employee" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101, et seq. Pursuant to Section 1104(a) of the Ethics Act, Respondent was specifically required to file a Statement of Financial Interests for calendar year 2001 on or before May 1, 2002. Section 1104(a) provides: §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). The complete financial disclosure which Rowan P. Kelly, Jr. as a Welfare Fraud Investigator for the Department of Public Welfare was required to provide in the Statement of Financial Interests form is statutorily mandated in detail at Section 1105 of the Ethics Act, 65 Kelly 03 -030 -P Page 4 Pa.C.S. §1105. Section 1109(f) of the Ethics Act provides as follows: §1109. Penalties (f) Civil Penalty. -- In addition to any other civil remedy or criminal penalty provided for in this chapter, the commission may, after notice has been served in accordance with section 1107(5) (relating to powers and duties of commission) and upon a majority vote of its members, levy a civil penalty upon any person subject to this chapter who fails to file a statement of financial interests in a timely manner or who files a deficient statement of financial interests, at a rate of not more than $25 for each day such statement remains delinquent or deficient. The maximum penalty payable under this paragraph is $250. 65 Pa.C.S. §1109(f). An application of Section 1109(f) to this case establishes that this Commission has the discretion to levy a maximum civil penalty against the Respondent for each delinquent or deficient Statement of Financial Interests. The prerequisite service of a Notice letter in accordance with Section 1107(5) was satisfied. Respondent did not remedy the failure to comply with the Ethics Act although given more than the usual grace period following Notice in which to do so. The Investigative Division then instituted formal proceedings against Respondent by filing with the State Ethics Commission and serving upon Respondent a Petition for Civil Penalties. The State Ethics Commission issued an Order to Show Cause, ordering Respondent to show cause why a civil penalty should not be levied against Respondent. The parties propose that this case be resolved by this Commission: (1) finding that Rowan P. Kelly, Jr., as a Welfare Fraud Investigator for the Department of Public Welfare, failed to comply with Section 1104 of the Ethics Act, 65 Pa.C.S. §1104, when he failed to file a Statement of Financial Interests for calendar year 2001; (2) levying a civil penalty against Respondent in the amount of $125.00, payable to the Commonwealth of Pennsylvania through this Commission; and (3) with Respondent filing a Statement of Financial Interests for calendar year 2001 with the State Ethics Commission within 30 days of the date of mailing of this order. We believe that the Consent Agreement is the proper disposition for this case, based upon our review of the totality of the facts and circumstances. Accordingly, we approve the Consent Agreement that has been submitted by the parties. We hereby find that Rowan P. Kelly, Jr., as a Welfare Fraud Investigator for the Department of Public Welfare, failed to comply with Section 1104 of the Ethics Act, 65 Pa.C.S. §1104, when he failed to file a Statement of Financial Interests for calendar year 2001 as a Welfare Fraud Investigator for the Department of Public Welfare. We take administrative notice that Respondent has made payment of a civil penalty in the amount of $125.00 in accordance with the Consent Agreement of the parties. Respondent must file the Statement of Financial Interests for calendar year 2001 within 30 days of the date of mailing of this order. Failure to comply with any provision of this Order will result in the initiation of an appropriate enforcement action. III. CONCLUSIONS OF LAW: Kelly 03 -030 -P Page 5 1. As a Welfare Fraud Investigator for the Department of Public Welfare , Rowan P. Kelly, Jr. was at all times relevant to these proceedings a "public employee" subject to the provisions of the Ethics Act, 65 Pa.C.S. §1101 et seq. 2. Rowan P. Kelly, Jr., as a Welfare Fraud Investigator for the Department of Public Welfare, failed to comply with Section 1104 of the Ethics Act, 65 Pa.C.S. §1104, when he failed to file a Statement of Financial Interests for calendar year 2001 as a Welfare Fraud Investigator for the Department of Public Welfare. 3. Notice of the delinquency of Respondent's Statement of Financial Interests for calendar year 2001 was previously served upon Respondent in accordance with Section 1107(5) of the Ethics Act, 65 Pa.C.S. §1107(5). 4. Based upon the totality of the circumstances in this case, a civil penalty in the amount of $125.00 is warranted. IN RE: Rowan P. Kelly, Jr. Respondent ORDER NO. 175 -S File Docket: 03 -030 -P Date Decided: 12/1/03 Date Mailed: 12/15/03 1. Rowan P. Kelly, Jr., as a Welfare Fraud Investigator for the Department of Public Welfare, failed to comply with Section 1104 of the Ethics Act, 65 Pa.C.S. §1104, when he failed to file a Statement of Financial Interests for calendar year 2001. 2. As per the Consent Agreement of the parties, Rowan P. Kelly, Jr. paid a civil penalty in the amount of $125.00 through this Commission to the Commonwealth of Pennsylvania. 3. As per the Consent Agreement of the parties, Rowan P. Kelly, Jr. is directed to file a Statement of Financial Interests for calendar year 2001 within 30 days of the date of mailing of this order. 4. Failure to comply with any provision of this Order will result in the initiation of an appropriate enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair