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HomeMy WebLinkAbout1350 SmithIn Re: Leigh S. Smith File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Donald M. McCurdy Michael Healey Raquel K. Bergen 04 -011 Order No. 1350 11/29/04 12/8/04 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 investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, 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 deemed waived. The record is complete. 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Smith, 04 -011 Page 2 I. ALLEGATION: That you, Leigh Smith, in your former position as the director of the Bureau of Housing Service for the City of York violated Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa. C.S. §1103(a) when you used the authority of your office in that position to obtain a private pecuniary benefit for yourself and /or members of your immediate family by insuring that collections proceedings would not be initiated against you and /or members of your immediate family for your /their failure to make loan repayments to the City relating to a critical needs loan that you and /or your parents had obtained through the City's Bureau of Housing Services; and that you violated Section 1104(a) of the Public Official and Employee Ethics Law, 65 Pa. C.S. §1104(a) when you failed to timely file a Statement of Financial Interests for calendar years 1998 and 1999 as the Director of the Bureau of Housing Services for the City of York and as the former director of the York City Redevelopment Authority for calendar year 2001 II. FINDINGS: 1. Leigh Smith was employed by the City of York from September 25, 1996, through August 1, 2001. a. As an employee of the City of York, Smith held the following positions: September 25, 1996 — December 15, 1998 Development Assistant December 16, 1998 — December 19, 2000 Director of Bureau of Housing Services December 20, 2000 — August 1, 2001 Director of Redevelopment Authority b. Smith was employed by the Redevelopment Authority as its Director on a part -time basis from May 11, 2001, until August 1, 2001. c. Smith believes she went to work for the Redevelopment Authority in September 2000. 2. Leigh Smith held the position of Director of Housing Services for the City of York from December 16, 1998, through December 19, 2000. a. The job description for the Director of Housing include the following typical examples of work for the position of Housing Services Director: 1. Assesses housing and community development needs by maintaining contact with applicable entities, devises and implements plans and programs to address identified needs and strategic comprehensive plan strategies. 2. Oversees all bureau operations including revenue and expenditure activities, payroll, employee supervision and employee evaluations. 3. Coordinates bureau operations with other local, state and federal agencies and officials. 4. Represents bureau before various boards and commissions as needed including a variety of other governmental, public policy oriented organizations, social service and neighborhood organizations. 5. Recommends policy and program initiatives to the Director of Smith, 04 -011 Page 3 Community Affairs. 6. Prepares public statements and media releases and serves as a spokesman for the bureau as needed. 7 Maintains communication with bureau staff regarding bureau activities and project status, and offers technical assistance as needed. 8. Manages various housing development projects including the process of acquisition of property, project development, oversees the bureau's construction and inspection services. 9. Prepares and submits grant applications and annual bureau budget reports, administers grant monies and budget upon approval, and prepares applicable legal documentation. 10. Upon requests, prepares studies, reports and related information for decision - making purposes. 11. Ensures the maintenance of accurate and complete records of bureau activities and of records pertinent to housing and community development programs and projects. 12. As necessary, responds to local citizens inquiring about housing programs and services, regulations and ordinances and resolves complex disputes. 13. The above responsibilities cover the most significant duties performed, but makes good other occasional work assignments not mentioned. 3. Smith, as the Housing Services Director also had supervisory responsibility over the City's Critical Needs Loan program and City employees administering said program. a. Smith supervised approximately three (3) employees. 4. The City of York offers 0% to 3% low interest loans to property owners for repairs and renovations through its owner occupied and rehabilitation program. a. Within this program are two sub - programs known as the critical needs program and regular rehabilitation program. b. By definition the critical needs program addresses immediate health and safety in housing deficiencies and handicapped accessibilities. c. These programs are offered in order to bring properties in compliance with City codes. d. Loans are offered at 0% to 3% depending on the financial need of the owner and nature of the work performed by definition. e. Deferred payment loans are offered when circumstances require immediate intervention. 5. On May 31, 1996, William D. Snyder, Gail Snyder, Leigh Smith and Vince Smith applied for a critical needs loan through the Bureau of Housing. Smith, 04 -011 Page 4 a. William D. Snyder and Gail Snyder are Leigh Smith's parents. b. Vince Smith was Leigh Smith's husband at the time. 6. The Snyder /Smith May 31, 1996, critical needs loan application was made approximately four (4) months prior to Leigh Smith being hired as a Development Assistant by the City. a. Leigh Smith became a City of York employee effective September 25, 1996. 7 The Snyder /Smith critical needs loan application was initially reviewed by Evelyn J. Cartagena, Program Delivery Specialist, Office of Housing Rehabilitation. a. On August 23, 1996, Cartagena submitted a loan approval request to Suzanne Mc Conkey, Director of Program Policy Department. b. The Snyder /Smith loan application was approved by Suzanne Mc Conkey on August 23, 1996. 8. On August 23, 1996, Evelyn Cartagena issued a memo outlining the Snyder /Smith loan request and their eligibility. a. The loan amount applied for was $14,752.50. b. Designated repairs consisted of updating the electric, installing a new furnace thermostat, new roof, spouting, bathroom plumbing and shower floor repairs. c. Lowest bidders are identified as: d. Ford Electric: Quality Labor Services: Contingency 5 %: Total $ 7,150.00 (Electrical) $ 6,900.00 (Everything else) $ 702.50 $14,752.50 Financial analysis for loan consideration: Annual Income: Is within the mod income level of a six member household Credit Rating: Snyders: satisfactory; Smiths: unsatisfactory as a result of a 1991 chapter 7 bankruptcy Debt /Income Ratio: 70 %, $2,277.91 monthly expenses of $3,245.21 monthly income. This ratio includes monthly housing expenses and liabilities. The debt /income ratio exceeds the program required rate of 50 %. Equity: The Credit Bureau property search, as reported on June 13, 1996, references one open mortgages. The mortgage was recorded for $81,000.00 on June 15, 1994, and is held by York Federal Savings and Loan. The balance on this mortgage is approximately $79,500.00. The consideration is $90,000.00. 110% of the first mortgage is $99,000.00. The available equity after the critical need rehabilitation loan, would result in a $4,747.50 figure. Smith, 04 -011 Page 5 Insurance /Tax: Loan Term: Loan Servicing Agent: Loan Type: Term: Interest: Loan Amount: Monthly Payment: 100% of consideration Less 1 mortgage balance Less critical needs Total Remaining Equity York Federal Critical Need 15 Year 0% $14,603.10 $ 81.13 A notice will be sent to York Federal Consideration - $90,000.00 110% of consideration - $99,000.00 $99,000.00 $79,500.00 $14, 752.50 $ 4,747.50 Applicants have met the insurance requirement and are current with real estate taxes. Critical need housing rehabilitation loan will be $14,752.50 with no monthly payments. Financial re- evaluation in one year. 9. On November 19, 1996, a mortgage in the amount of $14,603.10 was recorded in York County Mortgage book number 1277, page 6238. a. The mortgage is identified as being between William D. & Gail M. Snyder, Vince E. & Leigh Smith, and the City of York on property known as 446 -448 West Market Street, York. b. Stated mortgage conditions indicate that the indebtedness hereinabove stated was incurred pursuant to the Emergency Rehabilitation Program of the City of York. As such, no interest shall be charged on this indebtedness, nor is a scheduled time of repayment set forth herein. This indebtedness is payable in full, immediately, when the subject real estate is sold, transferred or assigned to or by any person not identified herein as mortgagor. c. The actual mortgage note was not filed until all of the work was completed to allow for any unexpected repair costs. d. Leigh Smith was working for the City by the time the mortgage was filed with the York County Recorder of Deeds. 10. On April 28, 1998, Evelyn Cartagena issued a memo to Leigh Smith documenting Smith's ability to begin making payments on the loan. Cartagena's memo detailed the following with respect to Smith's annual financial re- evaluation. a. A financial re- evaluation was due to take place. The re- evaluation would determine the Smith's and Snyder's ability to begin repaying their principal deferred Housing Rehabilitation Loan. Mrs. Leigh Smith has informed me that there is no need to schedule a financial re- evaluation. They are willing and able to begin the repayment process. Therefore, their $14,603.10 deferred Housing Rehabilitation will be scheduled for repayment in the following manner: b. York Federal Savings & Loan was the lending institution designated as the Smith, 04 -011 Page 6 collection agent for this loan. c. Leigh Smith was a development assistant with the City as of April 28, 1998. 11. Monthly payments in the amount of $81.13 on the Snyder /Smith critical needs loan should have been made starting no later than June 1, 1998. a. No monthly payments were made on this loan. 12. The Smith /Snyder loan was not forwarded to York Federal Savings & Loan for repayment. a. Neither the Smiths nor Snyders received a payment book from York Federal and neither pursued getting one. b. Evelyn Cartagena was responsible for establishing repayment of loan, and did not do so. 13. Leigh Smith became the Director of Housing Services effective December 16, 1998. a. Collection of Critical Needs Loan payments due fell under Smith's supervisory duties as Director. b. Subordinate employees Evelyn Cartagena and /or Debra Painter were responsible for loan collections and delinquencies. 14. Effective December 16, 1998, Smith, in her capacity as Director of Housing Services, had ultimate oversight responsibility for the repayment process of loans through the Critical Needs Loan Program, including the loan received by her family and her. a. Smith served as Director of Housing Services from December 16, 1998, through December 19, 2000. b. Smith did not require any payments to be made on the loan by herself, husband or parents. 1. Smith did not require any payments from any of the loan recipients. c. Subordinate employees Cartagena and Painter did not have the responsibility to require monthly payments be made by Smith during this time frame. d. Neither Cartagena nor Painter brought the non - payment of the loan to either Smith or Smith's immediate supervisors' attention. 15. As Housing Services Director, Smith took no action to effectuate the repayment of her loan. a. Smith's duties as Director included such actions. b. Annual financial re- evaluations were under Smith's ultimate supervision as Housing Services Director. 16. Evelyn Cartagena, a subordinate employee of Smith, was responsible for identifying loan recipients who were delinquent on monthly payments. Smith, 04 -011 Page 7 a. Cartagena did not bring to Smith's attention that the loan was delinquent. 17. Records of the York County Recorder of Deeds include the following deed and mortgage history on 446 -448 Market Street, York, PA since June 15, 1994. Transfer Date 06/15/94 09/03/98 Transfer Date 06/30/00 08/28/01 02/27/04 1404 1454 1636 Recorded Date Book Pages 06/15/94 918 11/19/96 1277 09/15/98 1337 09/15/98 1337 09/21/98 1337 06/10/99 1367 07/11/00 1404 08/07/00 1406 01/18/01 1422 09/04/01 1454 09/27/01 1457 11/28/01 1466 03/01/01 1636 04/12/04 1644 Deeds Book Pages 918 493 -495 1337 1281 -1282 Book Pages 2445 -2447 1171 -1173 196 -198 Mortgages /Mortgage Satisfactions 496 -505 6238 -6239 1295 -1296 1283 -1288 6060 -6061 1223 -1224 2448 -2459 8322 -8323 5443 -5448 1174 -1194 3800 -3801 8646 -8647 218 -219 6120 -6121 Mortgage Amount $81,000.00 $14,603.10 Postponement $102,000.00 Satisfaction Assignment $114,750.00 Satisfaction $5,842.23 $107,000.00 Satisfaction Satisfaction Satisfaction Satisfaction Names William D. Snyder, Gail M. Snyder Vince E. Smith, Leigh S. Smith Vince E. Smith, Leigh S. Smith Names Vince E. Smith Vince E. Smith, Robyn Smith Kevin B. Fuko, Karen L. Fuko Lender York Federal Savings City of York City of York First Union Home Equity York Federal Savings First Union National Bank Ameriquest Mortgage Co. First Union Home Equity Household Realty Corp. First Franklin Financial Corp. Household Realty Corp. Ameriquest Mortgage City of York First Franklin Financial Services include three (3) 18. File records maintained by the Bureau of Housing subordinations or postponements on this mortgage. a. Subordinate /postponements occurred on or about August 18, 1998; June 29, 2000; and an unspecified date in 2001. b. The August 18, 1998, subordination was to allow for the removal of William D. Snyder and Gail M. Snyder, Smith's parents, from the deed. c. The June 29, 2000, subordination was to allow for the removal of Leigh Smith from the deed. d. The 2001 subordination related to a $108,000 mortgage by American Bank which is not included on the mortgage history for this property. 19. Leigh Smith and Vince Smith went through divorce proceedings during 2000. a. As part of the distribution or marital assets, Vince Smith retained ownership of property subject to the critical needs loan at 446 -448 Market Street, York, Smith, 04 -011 Page 8 PA. b. Leigh Smith had her name removed from the deed on this property effective June 30, 2000. 20. On June 30, 2000, an agreement of mortgage assumption was entered into between the City of York (lender) and William D. & Gail M. Snyder and Vince E. and Leigh S. Smith (borrower) and Vince E. Smith. a. As a result of the mortgage assumption the City discharges and releases the borrower of any and all indebtedness, obligation and responsibility rising out of or in any way connected with the note and Mortgage and agree that Vince E. Smith shall hereafter be solely responsible for fulfilling all the terms and conditions thereof. b. This agreement contains the signatures of Vince Smith, Leigh Smith, William Snyder and Gail Snyder. c. No city officials are listed as signing it nor is the document properly notarized or certified in any manner. d. This agreement was entered into while Leigh Smith was serving as the Housing Services Director. 21. The mortgage assumption agreement removed Leigh Smith, William Snyder and Gail Snyder from any financial obligation for the repayment of the critical needs loans effective June 30, 2000. a. This agreement was made as part of Leigh Smith and Vince Smith's divorce. 22. The City of York, Bureau of Housing Services, took no action to collect monthly payments on this loan from Vince Smith between July 1, 2000, and December 20, 2000, while Leigh Smith was still serving as Housing Services Director. a. No financial re- evaluation occurred on this loan at the time. b. No payment waiver was requested or granted at the time. 23. During Smith's tenure as a City employee, no payments were made on this loan. 24. From February 1, 1999, through June 30, 2000, seventeen (17) monthly payments in the amount of $81.13 each were due on this loan. a. The Smiths and Snyders should have repaid $1,379.21 of the loan during this time frame. b. c. Smith had supervisory control over this loan during this timeframe. Payments were due during this time frame as follows: Due Date 02/01/99 03/01/99 04/01/99 05/01/99 06/01/99 07/01/99 08/01/99 Payment Amt. $ 81.13 $ 81.13 $ 81.13 $ 81.13 $ 81.13 $ 81.13 $ 81.13 Due Date 02/01/00 03/01/00 04/01/00 05/01/00 06/01/00 Payment Amt. $81.13 $81.13 $81.13 $81.13 $81.13 Smith, 04 -011 Page 9 09/01/99 10/01/99 11/01/99 12/01/99 01/01/00 Total: $ 81.13 $ 81.13 $ 81.13 $ 81.13 $ 81.13 $1,379.21 25. No payments were made on this loan by Vince Smith between July 1, 2000, and December 20, 2000. a. Leigh Smith continued to serve as the Housing Services Director during this time frame. b. Vince Smith did not request a waiver of monthly payments due during this time frame. c. Monthly payments in the amount of $81.13 were still due pursuant to the April 28, 1998, agreement to pay. 26. Vince Smith should have made six (6) monthly payments in the amount of $81.13 totaling $486.78 on this loan between July 1, 2000, and September 20, 2000, when Leigh Smith was serving as Housing Services Director. a. Leigh Smith took no action to collect this debt from her ex- husband. 27. Vince Smith has not made payments on the loan as required. a. The loan is in delinquent status. b. Leigh Smith has had no responsibility for the loan since June 30, 2000. 28. Smith was annually required to file a Statement of Financial Interests form by May 1 containing information for the prior calendar year in her official capacity as Housing Services Director and Redevelopment Authority Director. a. Statements of Financial Interests for City of York public officials /public employees are maintained by City Clerk Dianna L. Thompson. b. Thompson annually received blank SFI forms from the State Ethics Commission for distribution to City of York public officials and public employees. c. Thompson annually made blank SFI forms available to City officials and employees for completion. d. Thompson maintained complete SFI forms in a secured file cabinet within the office of City Clerk. 29. Statements of Financial Interests on file with the City of York include the following filings by Smith: a. Calendar Year: 1998 Position: Director of Housing Services No form filed. b. Calendar Year: 1999 Position: Director of Housing Services Smith, 04 -011 Page 10 No form filed c. Calendar Year: 2000 Position: Executive Director Redevelopment Authority Creditors: Allfirst Bank 2.9% Direct /Indirect Income: City of York All other financial interests: None d. Calendar Year: 2001 Position: Former Executive Director Redevelopment Authority No form filed 30. Smith failed to file a Statement of Financial Interests form by May 1, 1999, for calendar year 1998 in her official capacity as the City's Director of Housing Services. a. Smith held this position from December 16, 1998, through December 19, 2000. b. Smith did not file this SFI because she did not believe that she met the definition of a public employee as the City's Housing Services Director. 31. Smith failed to file a Statement of Financial Interests form by May 1, 2000, for calendar year 1999 in her official capacity as the City's Director of Housing Services. a. Smith held this position from December 16, 1998, through December 19, 2000. b. Smith did not file this SFI because she did not believe that she met the definition of a public employee as the City's Housing Services Director. 32. Smith failed to file a Statement of Financial Interests form by May 1, 2002, for calendar year 2001 in her official capacity as the former Executive Director of the City's Redevelopment Authority. a. Smith held this position from December 20, 2000, through August 1, 2001. b. Smith asserts that she was unaware of her filing requirement for calendar year 2000. 33. During the years when Smith failed to file Statements of Financial Interests Smith was compensated as follows: 1998: $31,618.20 1999: $38,447.61 2000: $40,460.41 III. DISCUSSION: At all times relevant to this matter, the Respondent, Leigh S. Smith, hereinafter Smith, has been a public official subject to the provisions of the Public Official and Employee Ethics Law, 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., which Acts are referred to herein as the "Ethics Act." Smith, 04 -011 Page 11 The allegations are that Smith, as the York City Director of the Bureau of Housing Service, violated Section 3(a)/1103(a) of the Ethics Act when she ensured that collections proceedings would not be initiated against her or members of her immediate family for the failure to make loan repayments to the City relating to a critical needs loan program; and violated Section 4(a)/1104(a) of the Ethics Act when she failed to timely file Statements of Financial Interests (SFI's) for calendar years 1998 and 1999 and for calendar year 2001 as a former public employee. Pursuant to Section 3(a)/1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows: Section 2/1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. § 402/65 Pa. C. S. § 1102. Section 3(a)/1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 4(a)/1104(a) of the Ethics Act requires that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. 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. Smith was employed by the City of York (City) from September of 1996 to August of 2001, holding various positions including the Director of the Redevelopment Authority (Authority) from May until August of 2001. As the Authority Director, Smith had various duties and responsibilities as delineated in Fact Finding 2. The City offers 0 % -3% low interest loans to property owners for the purpose of repairs and renovations. This is offered through an owner occupied and rehabilitation program that includes two sub - programs known as the critical needs program and regular rehabilitation program. Loans are made based upon the need to bring properties into compliance with city codes. The loan rate is determined based upon the financial need of Smith, 04 -011 Page 12 the owner and the work to be performed. Deferred payment loans are offered when circumstances require immediate intervention. On May 31, 1996, Smith, her spouse, and her parents (Snyder) applied for a critical needs loan through the Bureau of Housing. The Snyder /Smith critical needs load application was made approximately four months before Smith was hired as a City employee in September of 1996. The Snyder /Smith application was initially reviewed by Evelyn Cartagena (Cartagena) and approved by Director Suzanne McConkey. In August of 1996, Cartagena issued a memo outlining the Snyder /Smith loan request and eligibility as detailed in Fact Finding 8. In November of 1996, a mortgage in the amount of $14,603.10 was recorded at the county seat with Snyder /Smith as mortgagors. In April of 1998, Cartagena issued a memo to Smith documenting her ability to begin making payments on the loan. Monthly payments of $81.13 on the Snyder /Smith critical needs loan should have started no later than June 1, 1998; however, no loan payments were made. The Smith/ Snyder loan was not forwarded for repayment. Although Cartagena had the responsibility for establishing the repayment of the loan, she failed to do so. Smith /Snyder never received a payment book but never attempted to obtain one. When Smith became Director of Housing Services in December of 1998, the collection of critical needs loan payments came under her supervision. Smith had ultimate oversight responsibility for the repayment process of loans through the critical needs loan program including the loan received by her family and herself. As the Housing Director, Smith took no action to effectuate the repayment of her loan, even though her duties as a Director included such actions. However, Smith's subordinate employee Cartagena who was responsible for identifying delinquencies by loan recipients failed to bring to Smith's attention that her loan was delinquent. During the pendency of the mortgage, there were three subordinations: the first was for the removal of Smith's parents from the deed, the second was for the removal of her spouse from the deed due to divorce proceedings, and the third related to a mortgage by American Bank which was not included in the history for the property. Thereafter, on June 30, 2000, an agreement for mortgage assumption was entered into between the City and the four mortgagors whereby Smith and her parents were discharged from responsibility which then solely remained with her former spouse. The City took no action to collect money from the former spouse between July and December of 2000 while Smith served as Housing Services Director. During Smith's tenure as a City employee, no payments were made as to the loan. From February 1999 through June 2000, 17 monthly payments, each in the amount of $81.13, were due on the loan. As to the non - payments on the loan by Smith's former spouse between July and December of 2000, he did not request a waiver of monthly payments. Although Smith's former spouse should have made six payments in that time period totaling $486.78, no payments were made. Smith took no action to collect the debt from her former spouse. As a public employee of the City, Smith was required to file SFI's on an annual basis. A review of the SFI's on file with the City reflect that Smith did not file for the calendar years 1998 and 1999, filed for the calendar year 2000, and did not file for the calendar year 2001 as a former public employee. 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. That an unintentional violation of Section 1103(a) of the Ethics Act occurred when Smith, 04 -011 Page 13 Smith failed to take actions against members of her immediate family and her to ensure the repayment of critical needs loan owed by Smith, her husband and her parents, while she served as Director of Housing Services. b. That a violation of Section 1104(a) of the Ethics Act occurred when Smith did not file Statements of Financial Interests for the 1998 and 1999 calendar years in .. . [her] position as the City's Housing Services Director. c. That a violation of Section 1104(a) of the Ethics Act occurred when Smith did not file Statements of Financial Interests for the 2001 calendar year in ... [her] position as the former Director of the Redevelopment Authority." In addition, Smith agrees to pay $1,379.21, as well as file SFI's for the 1998, 1999 and 2001 calendar years. Said amount is payable to the City of York through this Commission within thirty (30) days of the issuance of this Order. The SFI's are to be filed with the City of York, with copies forwarded to this Commission for compliance verification. In applying Section 3(a)/1103(a) of the Ethics Act to the above allegation, Smith as a City employee had duties and responsibilities as to repayments under the critical needs loan program. Although Smith's subordinate did not apprise Smith of the failure to make the repayments on the loan by her spouse, her parents, and herself, Smith had the ultimate responsibility as to this aspect of the loan repayments. Smith who was a party to the critical needs loan was certainly aware of the obligation to make repayments and failed to do so. Smith's failure to proceed as to the repayment would suggest that her failure was deliberative. However, such failure constitutes inaction. A question exists as to whether the inaction of Smith constitutes a use of authority of office under the Ethics Act. There is judicial precedent on the issue of when nonfeasance constitutes actionable conduct. See, In re 1983 Audit Report of Belcastro, Controller, 528 Pa. 29, 595 A.2d 15 (1991); Kraines v. Pennsylvania State Ethics Commission, 805 A.2d 677 (Pa. Commw. 2002), petition for allowance of appeal denied, 572 Pa. 761, 818 A.2d 506 (2003). However, given that this is a consent agreement in which the respondent has conceded and acknowledged an unintentional violation, we need not and do not address this issue. It is clear that Smith, her (now former) spouse, and parents, who are members of her immediate family as that term is defined under the Ethics Act, received a private pecuniary benefit consisting of the financial gain that was made by not fulfilling the requirements of the critical needs program to repay the loan to the City. Consequently, Smith unintentionally violated Section 3(a)/1103(a) of the Ethics Act when she failed to take action against herself and members of her immediate family as to the repayment of the critical needs loan owed by Smith, her spouse, and her parents to the City while she served as Director of Housing Services. Turning to the SFI allegations, the stipulated findings reflect that Smith failed to file as a public employee of the City SFI's for the calendar years 1998 and 1999 and also failed to file an SFI for the calendar year 2001 as a former public employee. Accordingly, Smith violated Section 4(a)/1104(a) of the Ethics Act when she failed to file SFI's for the calendar years 1998 and 1999 as the City's Housing Services Director. Additionally, Smith violated Section 4(a)/1104(a) of the Ethics Act when she failed to file an SFI for the calendar year 2001 as a former Director of the Redevelopment Authority. 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, within 30 days of the mailing of this Order, Smith is directed to pay $1,379.21 to the City of York through this Commission and file SFI's for the calendar years 1998, 1999, and 2001 with the City of York, with copies forwarded to this Commission for compliance verification. Compliance Smith, 04 -011 Page 14 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. Smith, as a former Director of the Bureau of Housing Service for the City of York was a public employee subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Smith unintentionally violated Section 3(a)/1103(a) of the Ethics Act when she failed to take action against herself and members of her immediate family as to the repayment of the critical needs loan by Smith, her spouse, and her parents to the City while she served as Director of Housing Services. 3. Smith violated Section 4(a)/1104(a) of the Ethics Act when she failed to file SFI's for the calendar years 1998 and 1999 as the City's Housing Services Director. 4. Smith violated Section 4(a)/1104(a) of the Ethics Act when she failed to file an SFI for the calendar year 2001 as a former Director of the Redevelopment Authority. In Re: Leigh S. Smith ORDER NO. 1350 File Docket: 04 -011 Date Decided: 11/29/04 Date Mailed: 12/8/04 1 Smith, as the Director of the Bureau of Housing Service for the City of York, unintentionally violated Section 3(a)/1103(a) of the Ethics Act when she failed to take action against herself and members of her immediate family as to the repayment of the critical needs loan by Smith, her spouse, and her parents to the City while she served as Director of Housing Services. 2. Smith violated Section 4(a)/1104(a) of the Ethics Act when she failed to file Statements of Financial Interests for the calendar years 1998 and 1999 as the City's Housing Services Director. 3. Smith violated Section 4(a)/1104(a) of the Ethics Act when she failed to file a Statement of Financial Interest for the calendar year 2001 as a former Director of the Redevelopment Authority. 4. Per the Consent Agreement of the parties, Smith is directed to pay $1,379.21 to the City of York through this Commission and file Statements of Financial Interests for the calendar years 1998, 1999, and 2001 with the City of York, with copies forwarded to this Commission for compliance verification. 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