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.
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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.
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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.
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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.
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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.
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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:
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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.
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§ 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
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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
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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.
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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.
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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
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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