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HomeMy WebLinkAbout1058R DellmuthIn re: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Carl Dellmuth File Docket: X -Ref: Date Decided: Date Mailed: 95- 074 -C2 Order No. 1058 -R 10/2/97 10/14/97 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Boyd E. Wolff Julius Uehlein The State Ethics Commission received a request for reconsideration on September 22, 1997, with respect to Order No. 1058 issued on August 26, 1997. 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. (b) Any party may ask the Commission to reconsider an order or opinion within 15 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(b), (c), (d), (e). This adjudication of the Commission is hereby issued which sets forth the Discussion and Reconsideration Order. This Reconsideration Order is final and shall be made available with Order No. 1058 as public documents on the fifth (5th) business day following the date of issuance of this Order. Dellmuth, 95- 074 -C2 Page 2 DISCUSSION On August 26, 1997, we issued Dellmuth, Order No. 1058, following our review of the record in this case. The allegation was that Carl Dellmuth, a former public employee in his capacity as a Chief of Staff, Department of Education, violated Section 3(g) of the State Ethics Act (Act 9 of 1989) when he represented a person, with promised or actual compensation, on any matter before the governmental body with which he was associated within one year of leaving state employment by representing his new employer, the Philadelphia School District, before the Pennsylvania Department of Education. In approving a proposed Consent Agreement submitted by the parties, we found that: 1. Carl Dellmuth, as a Chief of Staff with the Department of Education, was a public employee subject to the provisions of Act 9 of 1989. 2. Dellmuth violated Section 3(g) of Act 9 of 1989 when he met with representatives of the Pennsylvania Department of Education, his former governmental body, within one year after leaving his position with the Department, regarding a Pennsylvania Department of Education study on Family Resource Networks and the creation of a Community and Student Services Support Center by the Philadelphia School District, his new employer. Following the issuance of Reconsideration alleging factual The Investigative Division has challenging the substance of the response would not be filed. The raised do not rise to the level of Order No. 1058, Dellmuth timely filed a Petition for inaccuracies in the Discussion portion of the Order. filed a letter stating that since Dellmuth is not Consent Agreement or Stipulated Findings, a formal Investigative Division further notes that the matters a material error of fact in its view. In his Petition for Reconsideration, Dellmuth states that he is not challenging the finding of violation nor is he challenging the decision to impose discipline. Dellmuth states that his purpose in requesting reconsideration is to correct two factual inaccuracies contained in the Discussion portion of the adjudication which are not consistent with the Stipulation of the parties. First, Dellmuth quotes page 8 of Order No. 1058, which states the following: When PSD was awarded a $200,000 grant through the Department of Public Welfare and PDED for the Model Child Care Program for the 1994/1995 fiscal year, Ledebur met with Dellmuth and other PSD representatives to discuss the grant in the context of insuring its use for preschool programs. Dellmuth argues that the grant of $200,000 was awarded when he was still an employee of the Pennsylvania Department of Education and not an employee of the Philadelphia School District. Dellmuth states that Stipulation No. 3 indicates that he worked for the Pennsylvania Department of Education until October 14, 1994 and that the $200,000 grant was approved and received prior to that date. Dellmuth further contends that he did not meet with Ledebur to discuss the grant in the context of ensuring its use for preschool programs; rather, Dellmuth asserts that the only contact he had with Ledebur on that particular issue was a telephone call from Ledebur's Dellmuth, 95- 074 -C2 Page 3 secretary asking whom she should contact in the Philadelphia School District for contract revisions. Dellmuth argues that Stipulation No. 17 confirms that the $200,000 grant was awarded on September 12, 1994 before Dellmuth left PDED. Dellmuth states that the second factual inaccuracy is found in the following quote on page 8 of Order No. 1058: Dellmuth contacted Joseph Bard in PDED who was the Commissioner for Elementary and Secondary Education to discuss the possibility of PDED reviewing PSD's Community and Student Service Program. Dellmuth argues that the statement is incorrect in that he did not initiate the contact with Bard. Dellmuth contends that Bard stopped by Dellmuth's backyard when they were neighbors in Harrisburg. Dellmuth states that Stipulation No. 9 only indicates that he and Bard had a discussion which occurred as a result of a chance meeting in Dellmuth's backyard. Dellmuth asserts that there is no evidence that he initiated the contact with Bard. As to the first claimed error of fact, the language of the particular sentence in the Discussion is prefaced by the clause which recites that the grant "was awarded" When Ledebur met with Dellmuth. The verb "was awarded" is past tense. Obviously, the clause is written in the context of action which had been completed as to the grant. Hence, the sentence is factually correct and there is no error of fact, material or otherwise. Dellmuth also asserts that he did not meet with Ledebur to discuss the grant in the context of ensuring its use for preschool programs and that his only contact with Ledebur on that issue was by a telephone call from Ledebur's secretary asking whom she could contact for contract revisions. First, we note that this proffered , statement is not in the Fact Findings or anywhere else in the Order. Second, the phraseology we used was summarized from Fact Finding 20, which states: Ledebur met with Dellmuth and other representatives of the Philadelphia School District January 1995 to discuss the grant. a. The discussions concerned who was to be contacted at the school district to ensure the grant would be used for preschool programs. Once again, there was no error of fact. As to the last asserted error of fact, it is true that the Fact Findings merely reflect that Bard and Dellmuth had a discussion but not who initiated the contact. However, such a paraphrase of the facts from the Fact Findings is not a material error of fact. At most, we have a picayune misstatement in the Discussion. No argument has been raised by the Dellmuth which would meet the requisite standard for reconsideration. 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 the Order. Dellmuth has failed to meet his burden of proof to establish any need for reconsideration. The Petition for Reconsideration is denied. In re: Carl Dellmuth File Docket: 95- 074 -C2 Date Decided: 10/2/97 Date Mailed: 10/14/97 RECONSIDERATION ORDER NO. 1058 -R 1. The Petition for Reconsideration of Dellmuth, Order No. 1058, is denied. BY THE COMMISSION, og,...J DANEEN E. REESE, CHAIR