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HomeMy WebLinkAbout13-001 Morton OPINION OF THE COMMISSION Before: John J. Bolger, Chair Raquel K. Bergen Nicholas A. Colafella Mark Volk Mark R. Corrigan Roger Nick DATE DECIDED: 1/28/13 DATE MAILED: 1/31/13 13-001 Michelle D. Morton 1043 Deerfield Circle Perkasie, PA 18944 Dear Ms. Morton: This Opinion is issued in response to the appeal of Advice of Counsel 12-568, which was issued on October 15, 2012. I.ISSUE: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose any restrictions upon employment of an Adult Personal Care Homes Licensing Representative following termination of employment with the Pennsylvania Department of Public Welfare (“DPW”). II.FACTUAL BASIS FOR DETERMINATION: By faxed letter received on November 16, 2012, you appealed Advice of Counsel 12-568, which was issued on October 15, 2012. Your initial advisory request presented facts that were summarized in the Advice of Counsel as follows: At the time that you submitted your inquiry, you were employed by the Commonwealth of Pennsylvania (“Commonwealth”) as an Adult Personal Care Homes Licensing Representative with DPW. You have submitted copies of a position description for your former position as an Morton, 13-001 January 31, 2013 Page 2 Adult Personal Care Homes Licensing Representative with DPW and the job classification specifications for the position of Adult Personal Care Homes Licensing Representative (job code 43671), both of which documents are incorporated herein by reference. You stated that while working for DPW, you were transferred to the Assisted Living Licensing Unit in the Office of Long-Term Living (“OLTL”) in January 2011, and that you were transferred back to the Personal Care unit in August 2012. You stated that your job description and job title were the same for both assignments. You stated that you would be terminating your employment with DPW on September 7, 2012, and that you would be commencing employment as an Administrator – Assisted Living with The Hill at Whitemarsh, an assisted living residence, on September 10, 2012. You stated that in your position with The Hill at Whitemarsh, you will be responsible for the administration of the assisted living unit, which will include ensuring compliance with Commonwealth regulations governing assisted living residences. See, 55 Pa. Code § 2800.1 et seq. You stated that your position will entail interacting with Commonwealth Licensing Inspectors to provide documentation and answer questions so that they may evaluate the facility’s compliance with regulations. You stated that your position will not entail seeking business, jobs, contracts, or the like from the Commonwealth. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any restrictions upon you in your new position as an Administrator – Assisted Living with The Hill at Whitemarsh. In particular, you ask whether you would be permitted to interact with Commonwealth Licensing Inspectors and participate in the inspection process while they would be conducting inspections. It is administratively noted that OLTL is “co-located” within both DPW and the Department of Aging. See, Resolution No. OR-08-242 of the Executive Board (October 7, 2008). It is further administratively noted that Commonwealth regulations governing assisted living residences provide for unannounced inspection(s) of each assisted living residence. See, 55 Pa. Code § 2800.3(a), (b). Morton, Advice of Counsel 12-568, at 1-2. Advice of Counsel 12-568 determined that as an Adult Personal Care Homes Licensing Representative with DPW, you would be considered a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., and that upon termination of your employment with the Commonwealth, you would become a “former public employee” subject to Section 1103(g) of the Ethics Act. The Advice further determined that your former governmental body would be DPW in its Morton, 13-001 January 31, 2013 Page 3 entirety, which includes OLTL. The Advice set forth the restrictions of Section 1103(g) of the Ethics Act as applicable to you. Advice of Counsel 12-568 concluded that during the first year following termination of your employment with the Commonwealth, Section 1103(g) of the Ethics Act would prohibit you from performing any job duty(ies) for your new employer, The Hill at Whitemarsh, that would involve prohibited representation before DPW/OLTL as set forth in the Advice. The Advice concluded that such prohibited representation would include interacting with DPW/OLTL Licensing Inspectors. The Advice further concluded that while Section 1103(g) of the Ethics Act would be applicable, it would appear to be impossible, as a practical matter, for you to participate in the DPW/OLTL inspection process as to The Hill at Whitemarsh without running afoul of Section 1103(g) of the Ethics Act. By faxed letter received on November 16, 2012, you appealed Advice of Counsel 12-568. Your appeal letter was undated and was accompanied by a fax cover sheet dated November 15, 2012. Your appeal letter did not state any particular basis for the appeal, but merely exercised the right to appeal the Advice of Counsel. By letter dated December 20, 2012, you were notified of the date, time and location of the public meeting at which your appeal would be addressed. III.DISCUSSION: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, this Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. In the instant matter, we must decide the threshold issue of whether you filed a timely appeal of Advice of Counsel 12-568. We begin our analysis by setting forth the relevant provisions of the Regulations of this Commission and the General Rules of Administrative Practice and Procedure, 1 Pa. Code § 31.1 et seq. Section 13.2 of the Regulations of this Commission provides, in pertinent part, as follows: § 13.2. Advice of counsel. …. (h) An appeal from an advice to the Commission shall be in writing and filed within 30 days of the issuance of the advice. 51 Pa. Code § 13.2(h). The Commission Regulations define the term “filed” as follows: § 11.1. Definitions. Filed—Official papers are filed on the date they are physically received at the Commission Office whether delivered by United States mail, express carrier, hand delivery or by Morton, 13-001 January 31, 2013 Page 4 Facsimile Service (FAX). See § 19.1 (relating to forms; filing) for additional requirements when filing a Statement of Financial Interests by Facsimile Service (FAX). 51 Pa. Code § 11.1. The General Rules of Administrative Practice and Procedure, which define the general rules of practice and procedure before Commonwealth agencies, provide, in pertinent part, as follows: § 31.11. Timely filing required. Pleadings, submittals or other documents required or permitted to be filed under this part, the regulations of the agency or any other provision of law shall be received for filing at the office of the agency within the time limits, if any, for the filing. The date of receipt at the office of the agency and not the date of deposit in the mails is determinative. 1 Pa. Code § 31.11 (Emphasis added). § 31.13. Issuance of agency orders. (a) In computing a period of time involving the date of the issuance of an order by an agency, the day of issuance of an order shall be the day the office of the agency mails or delivers copies of the order to the parties, or if the delivery is not otherwise required by law, the day the agency makes the copies public…. 1 Pa. Code § 31.13(a). Pursuant to the above provisions of the Regulations of this Commission and the General Rules of Administrative Practice and Procedure, any appeal of an advice must be in writing and must be filed with (received by) this Commission within thirty (30) days of the issuance (date of mailing) of the advice. Cf., Carnes, Opinion 00-001; Confidential Opinion, 93-003; Confidential Opinion, 93-003-R. Timeliness of an appeal filed with an administrative agency is a jurisdictional issue, and “[i]f an appeal is untimely, the Board does not have jurisdiction to reach the merits.” Sellers v. Workers’ Compensation Appeal Board, 552 Pa. 22, 26, 713 A.2d 87, 89 (1998); see also, Mills v. Workers’ Compensation Appeal Board, 24 A.3d 1094 (Pa. Cmwlth. 2011), alloc. denied, 34 A.3d 84, 2011 Pa. LEXIS 2796 (2011). Failure to timely appeal an administrative agency’s action is a jurisdictional defect. H.D. v. Pennsylvania Department of Public Welfare, 751 A.2d 1216 (Pa. Cmwlth. 2000). The time for taking an appeal to an administrative agency board cannot be extended as a matter of grace or mere indulgence. Id.; Mills, supra; Sofronski v. Civil Service Commission, City of Philadelphia, 695 A.2d 921 (Pa. Cmwlth. 1997). The appellant carries the burden to justify an untimely appeal. Sofronski, supra; DiJohn v. Unemployment Compensation Board of Review, 687 A.2d 1213 (Pa. Cmwlth. 1997). An appeal nunc pro tunc may be allowed by an administrative agency “where the delay in filing the appeal was caused by extraordinary circumstances involving fraud or some breakdown in the administrative process, or non-negligent circumstances related to the appellant, his or her counsel or a third party.” H.D., supra, 751 A.2d 1216, 1219 (Pa. Cmwlth. 2000) (Citations omitted). In the instant matter, Advice of Counsel 12-568 was issued on October 15, 2012. Any appeal of the Advice had to be filed with this Commission within thirty days of October Morton, 13-001 January 31, 2013 Page 5 15, 2012, that is, by November 14, 2012. However, your appeal of the Advice was filed by faxed transmission on November 16, 2012, two days beyond the appeal deadline. You have failed to establish any circumstance to justify your untimely appeal. Your appeal is untimely and must be dismissed. IV.CONCLUSION: The appeal of Advice of Counsel 12-568 is dismissed as untimely filed. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. By the Commission, John J. Bolger Chair