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HomeMy WebLinkAbout1055 AIn Re: A STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn Julius B. Uehlein 96- 003 -WUA Order No. 1055 5/29/97 6/11/97 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted a preliminary inquiry based upon alleged violations of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 am, by an individual referred to herein as the "Subject." Following the preliminary inquiry, the Investigative Division advised the Subject that there was no basis to commence a full investigation. Thereafter, the Subject sought a finding in the nature of a wrongful use of act based upon a frivolous complaint. The Investigative Division advised the Subject that there was no complaint and that no further proceedings could be initiated. The Subject appealed. An Order to Show Cause was issued to the Subject and an Answer was filed. Thereafter, the Investigative Division filed a Motion to Dismiss the Appeal as Untimely. An Answer was filed and oral argument was held. The record as to the issue of untimeliness is complete. This adjudication of the State Ethics Commission will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Act 9 of 1989, 65 P.S. §408(h). Any person who violates confidentiality of the Ethics Law is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year, 65 P.S. §409(e). Confidentiality does not preclude discussing this case with an attorney at law. A, 96- 003 -WUA Page 2 I. FINDINGS: 1. The Investigative Division of the State Ethics Commission conducted a preliminary inquiry based upon alleged violations of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 sec., by the individual referred to herein (for confidentiality purposes) as the "Subject." a. The case was to File No. 95- 077 -C2. 2. A letter dated May 31, 1996 was issued by John J. Contino, Esquire, Executive Director of the State Ethics Commission, to the Subject. a. The letter informed the Subject of the allegations. b. The letter stated: After a preliminary inquiry of this allegation, it has been determined that there is no basis to commence a full investigation, because there is insufficient evidence to support a finding of probable cause that the State Ethics Law has been violated. 3. A letter dated June 13, 1996 was sent by counsel for the subject to Robert Caruso, Director of Investigations of the State Ethics Commission. a. The letter bears a stamp indicating that it was received by the Commission on June 17, 1996. b. The letter contends, inter alia, that the charges against the Subject were frivolous. c. The letter states, in pertinent part: It is for these reasons and others that we implore your office to review the original complaint with regard to making a finding that the complaint as filed was frivolous from the outset, as well as consider prosecution of the pertinent individuals for filing the aforementioned frivolous complaint. Please be advised that if there is any information or materials which we can provide you to assist in these efforts, we will be happy to do so at your request. 4. A letter dated June 26, 1996 was issued by Executive Director Contino to counsel for the Subject. a. The letter states, in pertinent part: I have reviewed your letter of June 13, 1996, regarding the above referenced matter and in particular your request that the Commission initiate proceedings pursuant to the Wrongful Use of Act provisions of the Public Official and Employee Ethics Law. 65 P.S. §410.1. A, 96- 003 -WUA Page 3 After a further review of this matter, it has been determined that the review by the State Ethics Commission was initiated as a result of a referral from another state agency and not upon the receipt of a Complaint. As there was no Complaint in this matter, there is [sic] no further proceedings that can be initiated under the cited provision. 5. A letter dated October 4, 1996 was sent by counsel for the Subject to the Pennsylvania State Ethics Commission. a. The letter bears a stamp indicating that it was received by the Commission on October 7, 1996. b. The letter states, in pertinent part: This letter shall serve as formal notice pursuant to 65 P.S. §410.1(c) that [the Subject] seeks to appeal the Ethics Commission's determination embodied in Mr. John J. Contino's June 26, 1996 correspondence that the complaint filed against [the Subject] with the Commission was not frivolous. [The Subject] further demands a hearing be scheduled by the Commission at which [the Subject] may present this appeal in accordance with 65 P.S. §410.1(c). • II. DISCUSSION: This matter, which is an appeal from a preliminary determination as to wrongful use of act, is presently before us on a procedural issue. The Investigative Division of the State Ethics Commission has filed a Motion to Dismiss on the basis that the appeal is untimely. The procedural history is as follows. The Investigative Division of the State Ethics Commission conducted a preliminary inquiry (File No. 95- 077 -C2) based upon alleged violations of the Public Official and Employee Ethics Law, Act 9 of 1989, P. L. 26, 65 P.S. §401, gt sgq. ( "Ethics Law ") by an individual who, for confidentiality purposes, shall be referred to herein as the "Subject." Following the preliminary inquiry, the Executive Director of the State Ethics Commission, John J. Contino, Esquire, issued a letter dated May 31, 1996 to the Subject. The letter informed the Subject of the allegations and of the fact that following the preliminary inquiry, it had been determined that there was no basis to commence a full investigation because there was insufficient evidence to support a finding of probable cause that the Ethics Law had been violated. Approximately two weeks later, by letter dated June 13, 1996, counsel for the Subject wrote to Robert Caruso, who is the Deputy Executive Director and the Director of Investigations of the State Ethics Commission, alleging, inter alia, that the charges against the Subject had been frivolous. The letter stated: It is for these reasons and others that we implore your office to review the original complaint with regard to making a finding that the complaint as filed was frivolous from the outset, as well as consider prosecution of the pertinent individuals for filing the aforementioned frivolous complaint. A, 96- 003 -WUA Page 4 Please be advised that if there is any information or materials which we can provide you to assist in these efforts, we will be happy to do so at your request. Thereafter, by letter dated June 26, 1996, Executive Director Contino responded to counsel for the Subject as follows: I have reviewed your letter of June 13, 1996, regarding the above referenced matter and in particular your request that the Commission initiate proceedings pursuant to the Wrongful Use of Act provisions of the Public Official and Employee Ethics Law. 65 P.S. §410.1. After a further review of this matter, it has been determined that the review by the State Ethics Commission was initiated as a result of a referral from another state agency and not upon the receipt of a Complaint. As there was no Complaint in this matter, there is [sic] no further proceedings that can be initiated under the cited provision. Several months went by without any further communication from the Subject. Then, by letter dated October 4, 1996, received by this Commission on October 7, 1996, the subject communicated as follows: This letter shall serve as formal notice pursuant to 65 P.S. §410.1(c) that [the Subject] seeks to appeal the Ethics Commission's determination embodied in Mr. John J. Contino's June 26, 1996 correspondence that the complaint filed against [the Subject] with the Commission was not frivolous. [The Subject]. further demands a hearing be scheduled by the Commission at which [the Subject] may present this appeal in accordance with 65 P.S. §410.1(c). Upon receiving the Subject's October 4, 1996 letter, Chief Counsel wrote to Executive Director Contino asking that certain documents pertaining to the matter be filed with the Legal Division. In responding to Chief Counsel's request, Executive Director Contino noted that the reason for dismissing the matter was that no complaint against the subject had been received, and that the underlying matter involving the Subject had been received from a sister state agency and resulted in an own motion preliminary inquiry. Thereafter, on October 24, 1996, an Order to Show Cause was issued to the Subject directing that he show cause (1) why there should be any further proceedings in this matter, and (2) why the Investigative Division's determination that there was no wrongful use of act should not become the State Ethics Commission's final determination in this matter, based upon the following: (1) the Subject had already been advised of the circumstances surrounding the initiation of the preliminary inquiry against him; (2) The Subject had specifically been informed by the Executive Director that the preliminary inquiry against him had been initiated as an own motion preliminary inquiry based upon a referral from a sister state agency; (3) the Subject would bear the burden of proof in these proceedings pursuant to 65 P.S. §410.1(c); and (4) where there was no complainant against whom to proceed, there would appear to be no possible basis for any wrongful use of act by a complainant. On November 25, 1996, the Subject's Answer to the Order to Show Cause was timely received by the State Ethics Commission. A, 96- 003 -WUA Page 5 On December 3, 1996, Chief Counsel issued a letter to both parties, asking that they confer and submit mutually agreeable hearing dates. On the following day, December 4, 1996, the Investigative Division filed a Motion to Dismiss Appeal as Untimely citing §25.4 of this Commission's Regulations. The Subject requested and was granted a ten day extension in which to file his response to the Motion to Dismiss. On January 10, 1997, the Subject's response, styled "Appellant's Opposition to Motion to Dismiss Appeal as Untimely," was received. By letter dated January 24, 1997, the parties were notified of the scheduling of oral argument on the Motion to Dismiss Appeal as Untimely and Appellant's Opposition to that Motion. Counsel for the Subject requested and was granted a rescheduling of the time for oral argument. Thereafter, on February 19, 1997, counsel for the Subject submitted, by Fax transmission, a letter and enclosures proffered for consideration in conjunction with this matter. The submission included as exhibits certain excerpts from a February 5, 1997 deposition of the person who the Subject contends was the "complainant." Exhibit A consisted of the cover page and pages 58, 60, and 61 of the deposition, and Exhibit B consisted of pages 67 -68 of that deposition. The following day, the Investigative Division filed a Motion to Strike Evidentiary Submission and to Limit Argument to Procedural Issues. The Investigative Division contended that the Subject's submission advanced evidence and arguments on the merits, as opposed to the issue of timeliness. The Investigative Division asked that the Subject's submission not be provided to the Commission or the Hearing Officer, that it be stricken from the record, and that a ruling be issued expressly indicating that the oral argument would be limited to the issue regarding the timeliness of the appeal. Upon being apprised of the nature of the submissions and the nature of the relief requested by the Investigative Division, the Hearing Officer, in order to avoid any possible taint, deferred review of the parties' submissions to the Chair. The Chair issued an Interlocutory Order on February 20, 1997 which ordered that any further proceedings as to the documents filed by the Subject's counsel on February 19, 1997 would be deferred pending ruling on the Investigative Division's Motion to Dismiss Appeal as Untimely; the hearing of February 24, 1997 would be strictly limited to oral argument as to the Motion to Dismiss Appeal as Untimely and the Subject's response in opposition to that Motion; and that the Chair would recuse herself as to any further dispositions in this case. Oral argument was held, and both parties submitted Briefs. Attached to the Subject's Brief are various exhibits, including the same excerpts from the February 5, 1997 deposition which the Subject had previously submitted. On April 14, 1997, the Investigative Division by way of letter /motion, contended that the Subject's counsel had contravened the February 20, 1997 Interlocutory Order by filing the deposition testimony as an exhibit to the closing statement. The Investigative Division requested that any documentary evidence not specifically related to the legal issues at hand be removed from the Subject's counsel's Brief. By letter dated April 18, 1997, counsel for the Subject responded to the Investigative Division's letter /motion. A, 96- 003 -WUA Page 6 The Vice Chair was provided with the parties' respective filings outlining their respective positions as to the exhibits to the Subject's Brief. By letter of Chief Counsel dated April 23, 1997, the parties were advised that the Vice Chair had directed that exhibits A and B, the deposition testimony, would not be physically removed from Appellant's Brief prior to submission to the Commissioners, but that prior to the submission of Briefs to the Commissioners for consideration, the Commissioners would be apprised of the issues which have been raised by the Investigative Division in its letter /motion and that these issues would be the first item for business when the Commission would convene to decide the timeliness issue. Having set forth the procedural history of this case, we shall now turn to that first item for business. We can appreciate the Investigative Division's position that if a document has been inappropriately submitted by a party, the review of same to determine whether it has been inappropriately submitted results in exposure to the material. On the other hand, it is impossible to determine whether a particular item has been inappropriately submitted without reviewing it, and so we as a body have undertaken that task. We have reviewed Exhibits A and B to the Subject's Brief and we find, as did the Chair previously, that the deposition testimony (which pertains to alleged contacts with this Commission) is substantive and does not in any way pertain to the issue presently before us which is the question of the timeliness or untimeliness of the Subject's appeal. Accordingly, Exhibits A and B have no relevance and shall not be considered in our decision on the issue of timeliness. The statutory and regulatory provisions that are pertinent to deciding the timeliness issue are set forth below. Section 8(1) of the Ethics Law provides as follows: Section 8. Investigations by the commission (1) If a public official or public employee has reason to believe the complaint is frivolous as defined by this act, or without probable cause and made primarily for a purpose other than that of reporting a violation of this act, or a person publicly disclosed or caused to be disclosed that a complaint against the public official or public employee has been filed with the commission, the public official or public employee shall notify the commission and the commission, through its executive director, shall conduct an investigation. 65 P.S. §408(1). Section 10.1(c) of the Ethics Law provides as follows: A, 96- 003 -WUA Page 7 65 P.S. §410.1(c). Section 10.1. Wrongful use of act (c) When the commission determines that a complainant has violated the provisions set forth in subsection (a), the commission, upon receiving a written request from the subject of the complaint, shall provide the name and address of the complainant to said subject. If the commission determines that a complainant has not violated the provisions of subsection (a), the commission shall notify the subject accordingly. The subject shall have the right to appeal the commission's determination, and the commission shall schedule an appeal hearing. The subject shall show cause why the complainant violated the provisions of this section. If the commission grants the appeal, the commission shall immediately release the complainant's name and address to the subject. If the commission denies the appeal, it shall present evidence why the complainant's name and address shall not be released. Sections 25.2, 25.3, and 25.4 of the Commission Regulations provide as follows: §25.2. Initiation of proceedings. (a) The Commission may initiate proceedings to determine whether there has been a wrongful use of the act through the filing of a notification by a public official /public employe as provided for in section 8(1) of the act (65 P.S. §408(I)), which notification shall contain the following: (1) A reference identifying the complaint/ investigation involved. (2) A detailed explanation as to the reasons, information, facts or evidence establishing the elements of wrongful use of act as outlined in §25.1 (relating to wrongful use of the act). (3) If applicable, identification of the person publicly disclosing the existence of Commission proceedings and the specific nature of the disclosure. (4) Additional information necessary to the resolution of the matter. (b) Failure to provide information as outlined in this section will be cause for dismissal of the notification. A, 96- 003 -WUA Page 8 § 25.3. Disposition. (a) Pursuant to a notification containing the requisite information outlined in §25.2 (relating to initiation of proceedings), the Commission will initiate proceedings by conducting an investigation to determine whether there has been a wrongful use of act. (b) The investigation will be conducted in a confidential manner. (c) The investigation may incorporate information which the Commission has already obtained. (1) If the Commission determines a complaint has been filed in violation of the act, it will release the name and address of the complainant to the respondent after giving the complainant notice and an opportunity to be heard on the issue of whether the complainant wrongfully used the act. (2) If the Commission determines that a complaint was proper, it will so notify the respondent who may appeal that determination and the Commission will schedule a hearing. (d) Upon completion of the investigation, the Commission will make a preliminary determination as to wrongful use of the act. The Commission will notify the complainant and subject of the preliminary determination. § 25.4. Appeal of determination. (a) Both the complainant and the subject have standing and either may appeal the preliminary determination to the Commission. (1) Any appeal shall be filed with the Commission within 30 days of service of the preliminary determination. (2) If there is no timely appeal filed, the Commission's initial determination will become absolute and will become the final determination of the Commission in the matter as to wrongful use of the act. (b) The issuance of orders to Show Cause is governed by the following: (1) If a subject appeals, the Commission will issue an Order to Show Cause requiring the respondent to set forth reasons why the rule should not be made absolute as to a finding of no wrongful use of the act. The answer to the rule shall contain specific factual averments which A, 96- 003 -WUA Page 9 establish a basis for believing the act was wrongfully used. One or more of the following are inadequate to establish wrongful use: (i) Dismissal of the complaint. (ii) Dismissal for lack of probable cause. (iii) Dismissal on jurisdictional grounds. (2) The Commission will schedule a hearing for the subject's appeal at which the subject shall bear the burden of proving wrongful use of the act by clear and convincing evidence. The investigative staff of the Commission will present the case opposing the subject's appeal. (c) If the complainant appeals, the Commission will issue a Rule to Show Cause requiring the complainant to file an answer to the averments in the Rule as to why the Rule should not be made absolute as to a finding of wrongful use of the act. The Commission will schedule a hearing for the complainant's appeal. The investigative staff of the Commission will present the Commission's case and will have the burden of proving wrongful use of the act by clear and convincing evidence. (d) If the Commission makes a final determination that the act has been wrongfully used, it will release to the subject the name and address of the complainant solely for the purpose of initiating an action for wrongful use of the act. The complainant's identity will not otherwise be publicly released. (e) If the Commission makes a final determination that the act was not wrongfully used, it will issue a final determination setting forth the reasons and evidence for its finding. (f) The procedures of § §21.21 -21.29 (relating to hearings) will apply to the hearing to the extent applicable. 51 Pa.Code, § §25.2, 25.3, 25.4. Our first step is to determine which of the Subject's letters initiated this appeal. It is the Investigative Division's position that the Subject's June 13, 1996 letter did not initiate this appeal, but rather, was a "notification" as provided for in Section 8(1) of the Ethics Law, 65 P.S. §408(I), and Section 25.2 of the Commission Regulations, 51 Pa.Code §25.2. A "notification" essentially asks the Commission to initiate proceedings to determine whether there has been a wrongful use of act in the underlying case. Per the Investigative Division's theory, its own letter of June 26, 1996 was the preliminary determination responding to that request by the Subject, and the Subject's letter dated October 4, 1996 was the Subject's letter of appeal from that A, 96- 003 -WUA Page 10 determination. See, 65 P.S. §410.1(c); 51 Pa.Code §§25.3-25.4. The Investigative Division points out that the October 4 letter itself states that it is "formal notice pursuant to 65 P.S. §410.1(c) that fthe Subject] seeks to appeal the Ethics Commission's determination embodied in Mr. John J. Contino's June 26, 1996 correspondence that the complaint filed against [the Subject] with the Commission was not frivolous." (Emphasis added). If the Investigative Division's position is correct, the Subject's appeal is indeed untimely. The Subject's October 4 letter was received October 7, 1996, 103 days after the June 26, 1996 letter and well beyond the 30 -day appeal period prescribed by 51 Pa.Code §25.4(a). The Investigative Division contends that this case amounts to a simple failure on the part of the Subject to appeal within thirty days. The Investigative Division points out that there is no evidence of any postal breakdown or fraud on the part of the Commission that would excuse the 103 days between these two letters. The Investigative Division notes that an agency cannot act if it does not have jurisdiction and it contends that this Commission does not have jurisdiction to rule on this appeal because it is untimely. The Investigative Division contends that jurisdictional issues are never waived. Finally, the Investigative Division contends that the Commission Regulations, having been duly promulgated, have the force and effect of law, that the Subject was at all times represented by counsel upon whom it was incumbent to be familiar with the appeals process, and that further notices as to the appeal period were not required. The Subject contends that during the investigation, his counsel told the Commission through its investigator that the Subject wanted a finding that the allegation against him was frivolous. It is the Subject's contention that the Commission's letter of May 31, 1996 should have included a finding as to whether the charges were frivolous and that it failed to do so. It is the position of the Subject that the operative appeal letter was the letter of June 13, 1996. The Subject further contends that the Investigative Division has waived the issue of timeliness by failing to raise it earlier. Finally, the Subject contends that the Commission's thirty day appeal deadline as set forth in the Commission's Regulations is not fair notice of the deadline. The Subject complains that the appeal deadline is "buried" in the Commission's Regulations, does not appear in the statute, and is not in the Commission's literature that was given to him, he claims, to advise him of his rights.' Having thoroughly reviewed and weighed the arguments advanced by both parties, we find the Investigative Division's view as to the nature and effect of the parties' respective letters to be correct and we find this appeal to be untimely. 1 It is noted that the Subject has also incorporated into his argument certain issues which would go to the merits of the case rather than the issue of timeliness, including the issue as to whether a state agency can be considered to be a complainant under the Ethics Law. Such issues need not be addressed in this decision since the sole issue which is before us is the issue of timeliness. A, 96- 003 -WUA Page 11 The documents are what they appear to be. The May 31, 1996 letter from Executive Director Contino is a standard Section 408(b) letter advising the Subject of the allegations against him and of the fact that there were to be no further proceedings based upon a lack of sufficient evidence to establish probable cause that the Ethics Law had been violated. The Subject's letter of June 13, 1996 was a "notification" pursuant to Section 8(1) of the Ethics Law and Section 25.2 of the Commission Regulations, asking the Commission to initiate proceedings as to wrongful use of act and offering any assistance he could provide in that effort. The Subject was asking the Commission, in his own words, "to review the original complaint with regard to making a finding that the complaint as filed was frivolous...." (Emphasis added). This letter was not appealing anything, and in fact it could not, because at that point in time, there was no preliminary determination from which to appeal. The Subject's contention that his June 13, 1996 letter was an appeal from the May 31, 1996 letter of the Commission which "failed to find" that there had been a frivolous complaint is to no avail. There is no requirement placed upon the Commission to automatically determine in every case whether a complaint is frivolous. Rather, Section 8(b) of the Ethics Law provides that "If the Commission determines that a complaint is frivolous, it shall so state." 65 P.S. §408(b) (Emphasis added). In this case, there was no such determination as to a frivolous complaint and so there was no requirement to include any such determination in the May 31, 1996 letter. Both the Ethics Law and the Commission Regulations provide for a Subject to submit a "notification" to the Commission, which causes the Commission to initiate a review as to whether there has been any wrongful use of act. 65 P.S. §408(1); 51 Pa.Code §25.2. The Subject's alleged informal requests to a State Ethics Commission Investigator for a finding of frivolousness were not "notifications" to the Commission. A notification is to be filed; it is to be filed with the Commission; and substantively, it must meet certain requirements that were not met by the Subject until he filed his letter of June 13, 1996. The Subject's June 13, 1996 letter is in every way a "notification" pursuant to Section 8(1) of the Ethics Law and Section 25.2 of the Commission Regulations, and it did in fact have the legal force and effect of causing the Commission, through its Executive Director, to review the matter and to issue a preliminary determination as to wrongful use of act. The preliminary determination that was issued was set forth in the letter of the Executive Director dated June 26, 1996. The preliminary determination revealed to the Subject that no further proceedings would be initiated for the stated reasons that the case against the Subject had been initiated as a result of a referral from another State agency and not upon the receipt of a complaint. The preliminary determination advised the Subject that in fact no complaint had been received. The Subject's next letter, received 103 days after the June 26, 1996 letter had been issued by Executive Director Contino, was the appeal letter by which the Subject sought to appeal the June 26, 1996 preliminary determination. The letter itself states: "This letter shall serve as formal notice pursuant to 65 P.S. §410.1(c) that [the 2 Without embarking on the merits of the Subject's appeal, according to the Executive Director of this Commission, there was no complaint filed against the Subject by anyone. Commission Regulations require a complaint to include various substantive information and to be signed and sworn by the complainant. 51 Pa.Code §21.1. A, 96- 003 -WUA Page 12 Subject] seeks to appeal the Ethics Commission's determination embodied in Mr. John J. Contino's June 26, 1996 correspondence that the complaint filed against [the Subject] with the Commission was not frivolous." In the most simple, plain and unambiguous of terms, this letter establishes that it is the true letter of appeal that was received from the Subject. Consequently, this appeal is untimely, and this Commission may not entertain it. Appeal periods, even at the administrative level, are jurisdictional and may not be extended as a matter of grace. Bianco v. Robinson Township, 556 A.2d 993 (Pa. Commw. Ct. 1989); Delquadro v. Crime Victim's Compensation Board, 628 A.2d 1234 (Pa. Commw. Ct. 1993); Falcon Oil Co.. Inc. v. Department of Environmental Resources, 609 A.2d 876 (Pa. Commw. Ct. 1992); see also, Grimaud v. Department of Environmental Resources, 638 A.2d 299 (Pa. Commw. Ct. 1994); St. Christopher's v. Department of Public Welfare, 466 A.2d 1134 (Pa.Commw. Ct. 1983). The timeliness of an appeal to an administrative agency determines whether that agency has jurisdiction to entertain the appeal, and filing deadlines are to be strictly enforced. Sellers v. W.C.A.B. (HMT Const. Services), 687 A.2d 413 (Pa.Commw. Ct. 1996). An untimely appeal should not proceed even where the appellee agrees not to object to its untimeliness. Bianco, supra. Of course, where there is a showing of fraud or a breakdown in the administrative process, the time period for appeal may be extended. Friends Hospital v. Department of Public Welfare, 551 A.2d 640 (Pa. Commw. Ct. 1988); Polakovic v. Unemployment Compensation Board of Review, 531 A.2d 852 (Pa. Commw. Ct. 1987). There is no evidence in this case of any such fraud or breakdown in the administrative process. Nor is their any evidence of a breakdown in the mail. To the contrary, the Subject's appeal letter is dated October 4, 1996, and it was received a mere three days later on October 7, 1996. There is no basis for extending the appeal period in this case. Since the Subject's appeal is untimely, this Commission is without jurisdiction to consider the appeal. The Subject's remaining legal arguments have no merit. The Subject argues that the Ethics Law itself does not contain a deadline for this sort of appeal, but that only the Commission's Regulations do. Factually, the Subject is correct, but an agency regulation may furnish the deadline for filing an appeal where the statute does not include one. See, Borough of Bellefonte v. Department of Environmental Resources, 570 A.2d 129 (Pa. Commw. Ct. 1990), alloc. den. 525 Pa. 620, 577 A.2d 891. Furthermore, an agency's regulations that are properly promulgated pursuant to its statutory authority have the force and effect of law. City of Pittsburgh v. PHRC, 630 A.2d 919 (Pa. Commw. Ct. 1993), alloc. gr. in 644 A.2d 738. Indeed, a properly promulgated regulation is as valid and binding as the statute under which it was promulgated. Tubner v. State Farm Mut. Auto Ins. Co., 496 Pa. 215, , 436 A.2d 621, 623 (Note 10)(1981); Jones v. Travelers Ins. Co., 356 Pa.Super. 213, 514 A.2d 576 (1986); Girard School District v. Pittenger, 481 Pa. 91, 392 A.2d 261 (1978). This Commission's Regulations were properly promulgated pursuant to its express statutory authority in Section 7(1) of the Ethics Law, 65 P.S. §407(1). The Regulations therefore have the force and effect of law, and this Commission is bound to follow them. Com. v. State Conference of Police, 513 Pa. 285, 520 A.2d 25 96- 003 -WUA Page 13 (1987); Teledyne Columbia - Summerill Carnegie v. Unemployment Compensation Bd. of Review, 634 A.2d 665 (Pa. Commw. Ct. 1993); College Manor. Ltd. v. Dep't. of Public Welfare, 498 A.2d 996 (Pa. Commw. Ct. 1985). See also, Edwards v. Unemployment Compensation Board of Review, 639 A.2d 1279 (Pa. Commw. Ct. 1994) (The Unemployment Compensation Board of Review was bound to follow its own regulations as to how to determine the perfection date of an appeal). The Subject argues that the Investigative Division has failed to timely raise the timeliness issue and has therefore waived it. That argument is also without merit. Timeliness of an appeal is jurisdictional, and the issue of an untimely appeal is not waived merely by an alleged delay in raising the issue. As Commonwealth Court stated in Lebanon County Sewage Council v. Commonwealth of Pennsylvania. Department of Environmental Resources, 34 Pa. Commw. Ct. 244, 382 A.2d 1310 (Pa. Commw. Ct. 1978): Petitioner acknowledges its failure to perfect an appeal within the 30 -day period prescribed by the Board but contends that such failure does not deprive the Board of jurisdiction over the appeal. We have repeatedly held to the contrary. See, e.g., Rostosky v. Department of Environmental Resources, 26 Pa. Commonwealth Ct. 478, 364 A.2d 761 (1976). Nor can we agree with petitioner's argument that respondent's motion to dismiss for untimeliness cannot be granted because it, too, was untimely. As stated by our Supreme Court in Commonwealth v. Yorktowne Paper Mills. Inc., 419 Pa. 363, 368, 214 A.2d 203, 205 (1965): The filing of a timely appeal being a jurisdictional requirement, the delay of the Commonwealth in raising the issue is of no consequence. Mere delay of one of the parties cannot be said to extend the jurisdiction of the Commonwealth Court to hear appeals beyond the period allowed by statute. (Citations omitted.) Id., 34 Pa. Commw. Ct. at 246. See also, Standard Pa. Practice 2d, Volume 16, § §85.35 -85.36 (Timeliness of appeal is jurisdictional, and can be raised at any time by any party or by the court itself). As for the question of whether the Commission's Regulations constitute adequate notice of the thirty day appeal deadline, we hold that they do. As noted above, the Commission's Regulations, having been duly promulgated by law, have the force and effect of law. The Subject, who has been represented by counsel throughout these proceedings, is presumed to know of the appeal deadline. We reject any assertion by the Subject that the Commission must further advertise this deadline in its guide booklet. Furthermore, the cases cited by the Subject fail to support his argument in this regard. Since it is clear that this appeal is untimely and that this Commission therefore has no jurisdiction to entertain this appeal, the Investigative Division's Motion to Dismiss Appeal as Untimely is granted and we accordingly dismiss this appeal. In the absence of a timely appeal, the June 26, 1996 preliminary determination became absolute, and it is the final determination of this Commission in this matter (see 51 Pa.Code §25.4(2)). In Re: A File Docket: 96- 003 -WUA Date Decided: 5/29/97 Date Mailed: 6/11/97 ORDER NO. 1055 The appeal from the preliminary determination as to wrongful use of act issued June 26, 1996 to the Subject of the preliminary inquiry to File No. 95- 077 -C2, is dismissed as untimely. BY THE C MISSI Chair Daneen E. Reese did not participate in this decision. AUSTIN M. LEE, VICE CHAIR