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HomeMy WebLinkAbout1524-R VINOKURIn Re: Gabe Vinokur File Docket: 08 -010 X -ref: Order No. 1524 -R Date Decided: 10/29/09 Date Mailed: 10/30/09 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella Mark Volk The State Ethics Commission received a Request for Reconsideration with respect to Order No. 1524, which Order was issued on August 4, 2009. 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. (a) An order disposing of an investigation will be a final order when issued. Public release of the order will occur 30 days after the date of issuance, unless reconsideration is requested within that 30 -day time period. (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(a) -(e). This adjudication of the Commission is hereby issued which sets forth the Discussion and Reconsideration Order. Vinokur, 08 -010 Page 2 This Reconsideration Order is final and shall be made available as a public document on the fifth (5th) business day following the date of issuance of this Order. DISCUSSION On August 4, 2009, we issued Vinokur, Order No. 1524 based upon a Stipulation of Findings and a Consent Agreement filed by the parties. The allegations were that Gabe Vinokur ( "Vinokur "), a public official /public employee in his capacity as a Member and Chairman/Vice- Chairman of the Lower Southampton Township Zoning Hearing Board, Bucks County, violated Sections 1103(a) and 1105(b) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a) and 1105(b), when he used the authority of his public position for the private pecuniary gain of himself and /or a business with which he is associated by participating in discussions and decisions of the Zoning Hearing Board regarding requests of Colonial Nissan, Colonial Volkswagen and /or New Colonial Realty Company at a time when his company, Creative Printing by R'MAE, was performing printing services for these entities; when he filed a deficient Statement of Financial Interests for the 2005 calendar year by failing to disclose any information relating to real estate interests, creditors, gifts, transportation, lodging and hospitality, financial interest in any legal entity engaged in business for profit and identity of any financial interest transferred to a family member; when he failed to disclose on the Statement of Financial Interests filed for the 2006 calendar year any information relating to creditors, real estate interests, direct /indirect sources of income, gifts, transportation, lodging, hospitality, and financial interest in any legal entity in business for profit and financial interests in a business transferred to a member of his immediate family; and when he filed a deficient Statement of Financial Interests for the 2007 calendar year by failing to disclose any information relating to [the] calendar year for which the form was filed, direct /indirect sources of income, financial interest in any legal entity in business for profit and financial interest in a business transferred to a member of his immediate family. In their Stipulation of Findings and Consent Agreement, the parties stipulated to the facts and agreed to a proposed disposition of this matter. The disposition to which the parties agreed included, inter alia, payment by Vinokur of the amount of $3,667.85 to the Commonwealth of Pennsylvania. We approved the Consent Agreement and issued Order No. 1524, which Order included the facts and disposition to which the parties had agreed. By letter dated October 5, 2009, received October 6, 2009, the Investigative Division forwarded to the Legal Division a letter dated September 30, 2009, from Vinokur's counsel, Jeffrey M. Miller, Esquire. Mr. Miller's September 30, 2009, letter requests "reconsideration of the amount of the fine" imposed by Order No. 1524 and a reduction of the amount due. September 30, 2009, letter of Jeffrey M. Miller, Esquire, at 1. Such letter is being treated as a Request for Reconsideration. Specifically, Vinokur is requesting reconsideration of the amount of the payment ($3,667.85) that he agreed to pay to the Commonwealth of Pennsylvania as part of the settlement of this matter. In support of his Request for Reconsideration, Vinokur notes the age and health of himself and his wife, his record and active community service, and certain financial and family circumstances. In its letter of October 5, 2009, the Investigative Division asserts that Vinokur did not request reconsideration within thirty days of the issuance of Order No. 1524 and that, pursuant to this Commission's Regulations, Order No. 1524 is now a final order. In this case, we need not consider the criteria under which our discretion may be exercised for reconsideration due to the untimeliness of the request. Vinokur, 08 -010 Page 3 The Regulations of this Commission require that any request for reconsideration be filed with (received by) the Commission within 30 days of service (the mailing date) of an order. 51 Pa. Code §§ 11.1; 21.29(b). In this case, Order No. 1524 was decided on July 22, 2009, and mailed on August 4, 2009. Pursuant to this Commission's Regulations, the deadline for any request for reconsideration to have been filed with (received by) this Commission was September 3, 2009. 51 Pa. Code §§ 11.1; 21.29(b). Vinokur's Request for Reconsideration was dated September 30, 2009, and was received by this Commission approximately one month after the deadline. The deadline for requesting reconsideration is mandatory and jurisdictional. See, A.P. v. Department of Public Welfare, 884 A.2d 974 (Pa. Commw. Ct. 2005); Fleeher v. Pennsylvania Department of Transportation, 850 A.2d 34 (Pa. Commw. Ct. 2004). Absent a showing of fraud or wrongful /negligent conduct on the part of the administrative agency, the deadline will not be extended. See, Board of School Directors of Avon Grove School District v. Pennsylvania Department of Education, 375 A.2d 851 (Pa. Commw. Ct. 1977); Mayer v. Unemployment Compensation Board of Review, 366 A.2d 605 (Pa. Commw. Ct. 1976). There has been no claim by Vinokur of fraud or wrongful /negligent conduct on the part of this Commission. The Request for Reconsideration of Vinokur, Order No. 1524 is dismissed as being untimely filed. Cf., Nagele, Order 1403 -R; Hoover, Order 1402 -R; Popkave, Order 1318 -R. In Re: Gabe Vinokur RECONSIDERATION ORDER NO. 1524 -R 1 The Request for Reconsideration of Vinokur, Order No. 1524 is dismissed as being untimely filed. BY THE COMMISSION, File Docket: 08 -010 Date Decided: 10/29/09 Date Mailed: 10/30/09 Louis W. Fryman, Chair