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HomeMy WebLinkAbout1455-R GraeffIn Re: Todd Graeff, Respondent File Docket: 06 -043 X -Ref: Order No. 1455 -R Date Decided: 4/28/08 Date Mailed: 5/15/08 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella The State Ethics Commission received a request for reconsideration on March 3, 2008, with respect to Order No. 1455 issued on February 15, 2008. Pursuant to Section 21.29 of the Regulations of the Commission, the discretion of the State Ethics Commission to grant reconsideration is properly invoked as follows: § 21.29. Finality; reconsideration. (b) Any party may ask the Commission to reconsider an order or opinion within 30 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (c) A request for reconsideration filed with the Commission will delay the public release of an order, but will not suspend the final order unless reconsideration is granted by the Commission. (d) A request for reconsideration may include a request for a hearing before the Commission. (e) Reconsideration may be granted at the discretion of the Commission if: (1) A material error of law has been made. (2) A material error of fact has been made. (3) New facts or evidence are provided which would lead to reversal or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. 51 Pa. Code § 21.29(b), (c), (d), (e). This adjudication of the Commission is hereby issued which sets forth the Discussion and Reconsideration Order. This Reconsideration Order is final and shall be made available with Order No.1455 as public documents on the fifth (5th) business day following the date of issuance of this Order. Graeff 06 -043 Page DISCUSSION On February 15, 2008, we issued Graeff, Order No. 1455, based upon a Stipulation of Findings and a Consent Agreement filed by the parties. The allegations were that Graeff, a public official /public employee in his capacity as a Lieutenant of the Muhlenberg Township ( "Township ") Police Department ( "Police Department "), Berks County, Pennsylvania, violated Sections 1103(a) and 1104(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a) and 1104(a), when he used the authority of his public position to procure a private pecuniary gain by submitting invoices to the Township seeking payment for personal travel expenses, stating that the trip - -a trip to Ireland ( "Ireland trip ") - -was related to his position with the Township Police Department, and subsequently claiming compensation for time traveled while on personal matters not related to his public position; and also when he failed to file Statement of Financial Interests forms for the calendar years 2002, 2003, 2004, and 2005. In their Stipulation of Findings and Consent Agreement, the parties stipulated to the facts in this matter. See, Stipulation of Findings; Consent Agreement, paragraph 1. We approved the Consent Agreement and issued Order No. 1455, which Order included the facts and disposition to which the parties had agreed. Following the issuance of Order No. 1455, this Commission received on March 3, 2008, a letter from Graeff's counsel, dated February 29, 2008, which letter is being treated as a Request for Reconsideration. The Request for Reconsideration specifically states that Graeff is not requesting a change in the final Order. Reconsideration Request Letter of February 29, 2008 at 1. Rather, Graeff objects to Stipulated Fact Finding 25a, which provides that "[n]othing in the course syllabus or itinerary [for the Ireland trip] related to law enforcement, criminal justice, or police administrative topics." Fact Finding 25a. Graeff alleges that Stipulated Fact Finding 25a is in error because another Stipulated Fact Finding, Fact Finding 24a, quoted the following information from the "Purpose" section of the course syllabus for the Ireland trip: Purpose: This course is a three credit multi disciplined travel program with a focus on criminal justice that is designed to provide the opportunity for the students of all majors to experience together the culture of Ireland and observe the outward manifestations of the signs, symbols, and traditions of the country that make it elite. Visits to the various attractions would provide numerous examples of the Irish cultural identity. All students will follow the same travel itinerary with the opportunity to focus on identified areas of interest. There will be 16 hours of class time on campus and eight hours of formal lecture in Ireland." Fact Finding 24a (Emphasis in the original). Graeff contends that because, per Stipulated Fact Finding 24a, the course syllabus refers to criminal justice, Stipulated Fact Finding 25a is necessarily erroneous. The Investigative Division filed an Answer with New Matter opposing Graeff's Request for Reconsideration, arguing that: prior to entering into the Consent Agreement, Graeff, through his counsel, was provided with a copy of the Consent Agreement and the Graeff 06 -043 Page Stipulation of Findings; Graeff then entered into the Consent Agreement with the Investigative Division, which Consent Agreement was based upon the Stipulation of Findings and was dispositive of this case; as part of the Consent Agreement, Graeff agreed that the Findings delineated in the Stipulation of Findings were the facts of this matter and constituted the Findings to be presented to this Commission as the basis for the final adjudication; Graeff, through counsel, returned a fully executed copy of the Consent Agreement to this Commission; the Fact Findings as set forth in Order No. 1455 did not deviate in any respect from the Findings contained in the agreed upon Stipulation of Findings; and Graeff has failed to meet the regulatory criteria for the exercise of this Commission's discretion to grant reconsideration. By letter dated March 10, 2008, Graeff's counsel responded to the Investigative Division's New Matter, stating in pertinent part, as follows: While it is true that we agreed to the factual content of this record, the error in question, while not significant to the findings of the Commission, does directly impact on the review by further authority with regard to Mr. Graeff's actions as they pertain to his position as a law enforcement officer at the time of the violation of the Ethics Act. Clearly, a simple reading of the Conclusions will disclose that Finding 25a is in error and should merely be corrected to reflect that the course syllabus speaks for itself. The Request for Reconsideration in this matter will not in any way effect [sic] the eventual finding by the Commission, nor our agreement to a finding of a violation of the Ethics Act. Modifying the factual basis for the violation will merely serve to accurately reflect the factual circumstances surrounding this situation. Letter of March 10, 2008, at 1 -2. As to Graeff's argument, we determine that there is no material error of fact with regard to the Stipulated Fact Findings in this case. First, case law dictates that statements made by a party in a stipulation of facts are treated as conclusive judicial admissions. Bartholomew v. State Ethics Commission 795 A.2d 1073 (Pa. Cmwlth. 2002). Second, there is no material error of fact in this case because Stipulated Fact Findings 24a and 25a are not contradictory. Rather, read together, they establish that although the "Purpose" section of the course syllabus for the Ireland trip included the phrase with a focus on criminal justice," the course syllabus itself did not substantively pertain to that topic. No argument has been raised by Graeff that would meet the requisite standard for reconsideration. No material error of law has been established. No material error of fact has been established. No new facts or evidence has been provided which would lead to a reversal or modification of Order No. 1455. Graeff has failed to meet his burden of proof to establish any need for reconsideration. The Request for Reconsideration is denied. In Re: Todd Graeff, Respondent RECONSIDERATION ORDER NO. 1455 -R 1 The Request for Reconsideration of Graeff, Order No. 1455, is denied. BY THE COMMISSION, File Docket: 06 -043 Date Decided: 4/28/08 Date Mailed: 5/15/08 Louis W. Fryman, Chair Commissioner Raquel K. Bergen did not participate in this matter.