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HomeMy WebLinkAbout1538-R Parrilla In Re: Donna Parrilla : File Docket: 08-050 : X-ref: Order No. 1538-R : Date Decided: 12/15/09 : Date Mailed: 12/29/09 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. 1538, which Order was issued on October 6, 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. Parrilla, 08-050 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 October 6, 2009, we issued Parrilla, Order No. 1538, following our review of the record in this case. The allegations were that Donna Parrilla (“Parrilla”), a public official/public employee in her capacity as a member of the Sto-Rox School District (“School District”) Board of Directors violated Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), when she used the authority of her public position for a private pecuniary benefit by converting a district owned laptop computer to her personal possession; and when she incurred expenses of a personal nature while traveling to a school related conference and subsequently claimed and received reimbursement for her personal expenses. Parilla did not file an Answer to the Investigative Complaint or request a hearing, such that the factual averments of the Investigative Complaint were deemed admitted and a hearing was deemed waived. 65 Pa.C.S. § 1108(e); 51 Pa. Code §§ 21.5(k)(1), 21.21(a). In applying the allegations to the facts of record, we found that Parilla violated Section 1103(a) of the Ethics Act when: (1) she incurred expenses of a personal nature while traveling to school related conferences and subsequently claimed and received reimbursement for her personal expenses; and (2) she used the authority of her public position for a private pecuniary benefit by converting a District owned laptop computer to her personal possession. We ordered Parrilla to pay restitution to the School District in the total amount of $2,845.77, with such payment to be made payable to the School District and forwarded to this Commission for processing. Following the issuance of Order No. 1538, this Commission received on November 5, 2009, an entry of appearance from J. Deron Gabriel, Esquire, entering his appearance as Counsel for Parrilla and requesting reconsideration on her behalf. On November 20, 2009, this Commission received a letter of same date from Attorney Gabriel requesting “a hearing after you grant reconsideration in this matter.” November 20, 2009, letter of J. Deron Gabriel, at 1. In the Request for Reconsideration, Parrilla claims that material errors of fact and law were made, and specifically: (1) that Parrilla acted only on the express consent of the School District Business Manager and Solicitor at all times; (2) that she was not given the opportunity to present her testimony and/or confront her accuser and wishes to do so; (3) that assuming arguendo that Parrilla had acted intentionally and unethically, the complaint against her was barred by a one-year statute of limitations pursuant to the case of Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S. Ct. 1835, 23 L. Ed. 2d 360 (1969); and (4) that this matter is barred by various statutes of limitations contained within the Judicial Code, 42 Pa.C.S. § 101 et seq. The Investigative Division has filed an Answer opposing Parrilla’s Request for Reconsideration, contending that: (1) the facts as averred by the Investigative Complaint were deemed admitted by Parrilla due to her failure to file an Answer to the Investigative Complaint; (2) Parrilla failed to request a hearing, such that her right to request a hearing was waived; (3) pursuant to Section 1108(m) of the Ethics Act, 65 Pa.C.S. § 1108(m), this Commission may conduct an investigation within five years after the alleged occurrence of any violation of the Ethics Act; (4) Parrilla’s actions in this matter fall within the five-year statute of limitations of Section 1108(m) of the Ethics Act; (5) the case of Rodrigue v. Aetna Casualty & Surety Co., supra, is completely inapplicable to the instant matter Parrilla, 08-050 Page 3 because it is an admiralty case involving federal and state law and it makes no mention of any statute of limitations; and (6) the five-year statute of limitations of Section 1108(m) of the Ethics Act supersedes any statute of limitations set forth in the Judicial Code. In considering whether to grant reconsideration, we note that Parrilla was clearly given an opportunity to file an Answer to the Investigative Complaint, request a hearing, and otherwise participate in this case. She chose to do nothing, other than to file a Position Statement. We considered Parrilla’s Position Statement. Order No. 1538 was decided based upon the record in this case, which included the factual averments of the Investigative Complaint, deemed admitted by Parrilla. Having failed to file an Answer to the Investigative Complaint, and having failed to timely request a hearing, Parrilla will not now be heard to complain that the record was not all that she wanted it to be. Parrilla may not belatedly inject purported facts into these proceedings through a Request for Reconsideration after the matter has been decided. We parenthetically note that an argument by Parrilla that as a School Board Member—and therefore a Member of the governing body of the School District—she acted on the express “consent” of a subordinate staff member (Business Manager) and the Solicitor, would lack merit. School board members do not act upon the consent of subordinates or solicitors. As for Parrilla’s claims that the complaint against her was barred by a one-year statute of limitations pursuant to the case of Rodrigue v. Aetna Casualty & Surety Co., supra, and that this matter is barred by various statutes of limitations contained within the Judicial Code, following review, we conclude that neither the case nor the statutes of limitations cited by Parrilla have any applicability to this matter under the Ethics Act. The applicable statute of limitations is the five-year statute of limitations provided by Section 1108(m) of the Ethics Act, which provides: “The commission may conduct an investigation within five years after the alleged occurrence of any violation of this chapter.” 65 Pa.C.S. § 1108(m). It would be an absurd/unreasonable interpretation of the statutory language to assert that an investigation may be conducted within five years of an alleged violation of the Ethics Act but no complaint may be filed more than one year after such alleged violation. (See, 1 Pa.C.S. § 1922). The General Assembly clearly did not intend the absurd or unreasonable result of authorizing this Commission to investigate matters at taxpayer expense if there would be no authority to prosecute alleged violations of the Ethics Act. Finally, we note that even if there were a conflict between the Ethics Act’s statute of limitations and some other statute of limitations, the Ethics Act’s statute of limitations would prevail. 65 Pa.C.S. § 1112. Having reviewed the asserted bases for the Request for Reconsideration, our determination is as follows. 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. 1538. Parrilla has failed to meet her burden of proof to establish any need for reconsideration. The Request for Reconsideration is denied. In Re: Donna Parrilla : File Docket: 08-050 : Date Decided: 12/15/09 : Date Mailed: 12/29/09 RECONSIDERATION ORDER NO. 1538-R 1. The Request for Reconsideration of Parrilla, Order No. 1538 is denied. BY THE COMMISSION, Louis W. Fryman, Chair