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In Re: Gary Smith,
Respondent
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
File Docket:
X-ref:
Date Decided
Date Mailed:
FACSIMILE: 717-787-0806
WEBSITE: mMN thics. a. ov
19-045-P
Order No. 662-S
1 /23/20
2/13/20
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Melanie DePalma
Michael A. Schwartz
Shelley Y. Simms
This is a final adjudication of the Pennsylvania State Ethics Commission as to the
alleged delinquency and/or deficiency of Statements) of Financial Interests required to
be filed pursuant to Sections 1104 and 1105 of the PPublic 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 Penalties. An Order to
Show Cause was issued to Respondent. An Answer was not filed by the Respondent,
and a hearing was deemed waived. The record is complete. The Findings in this Order
are derived from the Petition for Civil Penalties filed by the Investigative Division.
FINDINGS:
Respondent is an adult individual who resides or maintains a mailing address at
[address redacted].
2. At all times relevant to these proceedings, Respondent has been a Real Estate
Specialist with the Pennsylvania Department of Transportation, and as such,
Respondent has at all times relevant to these proceedings been a "public
employee" as defined in Section 1102 of the Ethics Act, 65 Pa-C.S. § 1102.
Respondent as a public employee is subject to the Statement of Financial Interests
filing provisions of the Ethics Act.
Respondent has failed to provide full financial disclosure as required by the Ethics
Act. Respondent has failed to file a Statement of Financial Interests for calendar
year 2017, which Statement of Financial Interests was to be filed byy May 1 of 2018,
and Respondent has therefore transgressed Sections 1104 and 1105 of the Ethics
Act, 65 Pa.C.S. §§ 1104, 1105.
By Notice letter dated September 12, 2018, Respondent was served with Notice
in accordance with Section 1107(5) of the Ethics Act 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 Statement of Financial Interests
for calendar year 2917 within twenty (20) days of the date of the Notice letter.
Respondent has failed and refused to file a Statement of Financial Interests for
calendar year 2017 so as to comply with the specific requirements of the Ethics
Act.
Smith 19-045-P
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By
a. Following the October 18, 2018, Notice, Respondent mailed the
Commission a letter dated October 27, 2018, which referenced the October
18, 2018, Notice and asked the Commission to forward all information to his
attorney, John Kerr Law, PC.
b. Deputy Executive Director/Director of Investigations Brian Jacisin
forwarded the warning notices to Respondent's attorney on Wednesday,
October 31, 2018, via email to [email address redacted].
Section 1109(f) of the Ethics Act provides:
§ 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).
For each violation the Commission finds, Respondent is subject to civil penalty
liability under Section 1109(f) of the Ethics Act, 65 Pa.C.S. § 1109(f), at a rate of
not more than $25.00 per clay for each day the Statement of Financial Interests
remains delinquent or deficient, for a maximum civil penalty of $250.00 per
violation. Because Respondent has committed one violation alleged herein,
Respondent is subject to total maximum civil penalty liability of $250.00.
9. There are no mitigating circumstances and Respondent should be assessed the
maximum civil penalty of $250.00, in that the twenty -day deadline set forth in the
said final Notice letter to Respondent has expired and the Respondent has not
complied.
II. DISCUSSION:
As a Real Estate Specialist for the Pennsylvania Department of Transportation
("Department of Transportation"), GarySmith ("Smith") 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.
Smith, 19-045-P
P-a-g-e-3
Pursuant to Section 1104(a) of the Ethics Act, Smith was specifically required to
file a Statement of Financial Interests for calendar year 2017 with the Department of
Transportation on or before May 1, 2018. Section 1104(a) provides:
§ 1104. Statement of financial interests required to be fled
(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 osition. 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 Smith as a Real Estate Specialist for the
Department of Transportation was required to provide in the Statement of Financial
Interests form is statutorily mandated in detail at Section 1105 of the Ethics Act, 65
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 Smith for the delinquent Statement
of Financial Interests for calendar year 2017.
The prerequisite service of a Notice letter in accordance with Section 1107(5) was
satisfied. Smith 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 Smith by fling with the State Ethics
Commission and serving upon Smith a Petition for Civil Penalties. The Commission Chair
issued an Order to Show Cause, ordering Smith to show cause why a civil penalty should
not be levied against him. Smith did not file an answer to the Order to Show Cause.
There is nothing of record that would constitute a defense or excuse for Smith's failure to
comply with the Ethics Act. Smith has failed to show cause why a civil penalty should not
Smith, 19-045-P
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be levied against him in this matter.
We find that Smith, as a Real Estate Specialist for the Department of
Transportation, failed to comply with Section 1104(a) of the Ethics Act, 65 Pa.C.S. §
1104(a), when he failed to file a Statement of Financial Interests for calendar year 201
with the Department of Transportation.
We hereby levy one maximum civil penalty against Smith at the rate of Twenty -
Five Dollars ($25.00) per day for each day his Statement of Financial Interests for
calendar year 2017 has remained delinquent. Given the number of days during which
the Statement of Financial Interests has remained delinquent, the resultant amount to be
levied against Smith is Two Hundred and Fifty Dollars ($250.00).
Smith shall be ordered to make payment of the above civil penalty in the amount
of $250.00 by no later than the thirtieth (30 ) day after the mailing date of this adjudication
and Order, by forwarding a check to this Commission made payable to the
Commonwealth of Pennsylvania, for deposit in the State Treasury.
Smith shall be ordered to file a complete and accurate Statement of Financial
Interests for calendar year 2017 with the Department of Transportation by no later than
the thirtieth (301") day after the mailing date of this adjudication and Order, with one copy
forwarded to this Commission for compliance verification purposes.
CONCLUSIONS OF LAW:
1. Gary Smith ("Smith"), as a Real Estate Specialist for the Pennsylvania Department
of Transportation, was at all times relevant to these proceedings a "public
employee" subtct to the provisions of the Public Official and Employee Ethics Act
("Ethics Act"), 65 Pa.C.S. § 1101 et seg,.
Smith, as a Real Estate Specialist for the Pennsylvania Department of
Transportation failed to comply with Section 1104(a) of the Ethics Act 65 Pa.C.S.
§ 1104(a), when he failed to file a Statement of Financial Interests for calendar
year 2017 with the Pennsylvania Department of Transportation.
Notice of the delinquency of Smith's Statement of Financial Interests for calendar
year 2017 was previously, served upon him in accordance with Section 1107(5) of
the Ethics Act, 65 Pa.C.S. § 1107(5).
Based upon the totality of the circumstances in this case, a civil penalty in the total
amount of $250.00 is warranted.
In Re: Gary Smith, File Docket: 19-045-P
Respondent Date Decided: 1123/20
Date Mailed: 2/13/20
ORDER NO. 662-S
Gary Smith ("Smith"), as a Real Estate Specialist for the Pennsylvania Department
of Transportation, failed to comply with Section 1104(a) of the Public Official and
Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1104(a), when he failed to file a
Statement of Financial Interests for calendar year 2017 with the Pennsylvania
Department of Transportation.
This Commission hereby levies one maximum civil penalty against Smith at the
rate of Twenty -Five Dollars ($25.00) per day for each day his Statement of
Financial Interests for calendar year 2017 has remained delinquent, for a total civil
penalty of Two Hundred and Fifty Dollars ($250.00). Smith is ordered to pay said
civil penalty in the total amount of $250.00 by no later than the thirtieth (30t) day
after the mailing date of this Order, by forwarding a check to the Pennsylvania
State Ethics Commission made payable to the Commonwealth of Pennsylvania,
for deposit in the State Treasury.
Smith is ordered to file a complete and accurate Statement of Financial Interests
for calendar year 2017 with the Pennsylvania Department of Transportation by no
later than the thirtieth (30tn) day after the mailing date of this Order, with one copy
forwarded to the Pennsylvania State Ethics Commission for compliance
verification purposes.
Failure to comply with Paragraph 2 or 3 of this Order will result in the initiation of
an appropriate enforcement action.
BY THE COMMISSION,
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