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HomeMy WebLinkAbout1490-R DoniaIn Re: Samuel Donia, Respondent File Docket: 07 -073 X -Ref: Order No. 1490 -R Date Decided: 12/4/08 Date Mailed: 12/19/08 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella On October 24, 2008, the State Ethics Commission received a request for reconsideration of Order No. 1490 issued on October 10, 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.1490 as public documents on the fifth (5th) business day following the date of issuance of this Order. Donia 07 -073 Page DISCUSSION On October 10, 2008, we issued Donia, Order No. 1490, based upon a Stipulation of Findings and a Consent Agreement filed by the parties. The allegations were that Donia, a public official /public employee in his capacity as a Supervisor of Quemahoning Township, Somerset County, violated Section 1103(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § 1103(a), when he used the authority of his public position for the private pecuniary gain of himself and /or a member of his immediate family by claiming and receiving extra compensation for attending state conventions; when [he] claimed and received excess expenses for attending state conventions; when he claimed and approved compensation to himself as roadmaster for his responsibilities as Township Supervisor; and when he participated in actions of the Board of Supervisors to hire his wife as Township Secretary and participated in approving compensation for her. 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. The parties further agreed that upon the filing of the executed Consent Agreement and Stipulation of Findings, neither the Consent Agreement nor the Stipulation of Findings could be withdrawn or unilaterally modified. Consent Agreement, paragraph 8. We approved the Consent Agreement and issued Order No. 1490, which Order included the facts and disposition to which the parties had agreed. Following the issuance of Order No. 1490, this Commission received on October24, 2008, a letter from Donia, dated October 20, 2008, which letter is being treated as a Request for Reconsideration. In the Request for Reconsideration, Donia specifically requests that Order No. 1490 not be made available to the public for medical reasons. Reconsideration Request Letter of October 20, 2008. The Request for Reconsideration also asserts information characterized as "answers" to the accusations and Findings of Order No. 1490. Id. Such information consists of assertions of a factual nature as well as Donia's statement that he does not feel he violated any laws. The Request for Reconsideration does not assert or establish that such information could not be or was not discovered by the exercise of due diligence prior to our approval of the Consent Agreement. The Investigative Division has filed an Answer opposing Donia's Request for Reconsideration, arguing that: Donia entered into the Consent Agreement, which was dispositive of the instant matter; Donia was provided with a copy of both the Consent Agreement and the Stipulation of Findings prior to executing the Consent Agreement; Donia was specifically informed that the final order of the Commission would incorporate the Stipulation of Findings and Consent Agreement verbatim and that the final order would be a public document; as part of the Consent Agreement, Donia agreed that the findings delineated in the Stipulation of Findings were the facts of the matter and would constitute the findings presented to the Commission as the basis of the final adjudication; Donia and the Investigative Division submitted a modification to the Consent Agreement resulting in the settlement payment being forwarded to the Township; the Commission's Order, Order No. 1490, did not deviate in any respect from the findings contained in the agreed upon Stipulation of Findings; and Donia has failed to meet the regulatory criteria for the exercise of this Commission's discretion to grant reconsideration. We conclude that the Request for Reconsideration fails to meet the requisite standard for reconsideration. Donia has not alleged or established that a material error of law has occurred. No material error of fact has been established. With regard to the Donia 07 -073 Page Stipulated Fact Findings in this case, 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). No new facts or evidence has been provided which could not be or was not discovered by the exercise of due diligence and that would lead to a reversal or modification of Order No. 1490. Finally, Section 1108(h) of the Ethics Act requires that final Orders of this Commission be made available as public documents. 65 Pa.C.S. § 1108(h). The Ethics Act does not provide exceptions to the requirement that final orders of the Commission be made public. Donia has failed to meet his burden of proof to establish any need for reconsideration. The Request for Reconsideration is denied. Order No. 1490 shall be made available as a public document. In Re: Samuel Donia, Respondent RECONSIDERATION ORDER NO. 1490 -R 1 The Request for Reconsideration of Donia, Order No. 1490, is denied. BY THE COMMISSION, File Docket: 07 -073 Date Decided: 12/4/08 Date Mailed: 12/19/08 Louis W. Fryman, Chair