HomeMy WebLinkAbout1130R ColellaIn re: Maureen Colella
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket: 97- 050 -C2
X -ref: Order No. 1130 -R
Date Decided: 8 -30 -99
Date Mailed: 9 -7 -99
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Julius Uehlein
Louis W. Fryman
John J. Bolger
Frank. M. Brown
Susan Mosites Bicket
The State Ethics Commission received a request for reconsideration on Colella, Order
No. 1130 issued on July 20, 1999. 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. 1130 as
public documents on the fifth (5th) business day following the date of issuance of this Order.
CoIeIIa, 97- 050 -C2
Page 2
DISCUSSION
On July 20, 1999, we issued CoIeIIa, Order No. 1130, following our review of the
record in this case.
The allegation was that CoIeIIa as Tax Collector for Homestead Borough and the
Steel Valley School District, Allegheny County violated Section 1103(a) of the Ethics Act
when she converted tax payments received as tax collector for her personal use.
In applying the allegation to the facts of record, we found that Maureen Colella,
as Tax Collector violated Section 1103(a) of the Ethics Act when she converted tax
payments for her personal use. We ordered CoIeIIa to make payment of $8,090.88 and
directed a referral of the case for prosecution.
Following the issuance of Order No. 1130, CoIeIIa filed a Petition for
Reconsideration on August 17, 1999, by FAX transmission. The Investigative Division
filed an Answer to the Petition for Reconsideration on August 18, 1999.
Colella raises four points in support of her request for reconsideration as to our
finding of a violation: Act 93 of 1998 as an ex post facto application; no use of
confidential information; determination not supported by the record; current bankruptcy
status.
The Investigative Division in its Answer argues, as follows:
(1) There is no "ex post facto" application because Act 93 of 1998
merely codified Act 9 of 1989 and continued existing law;
(2) A conflict may be based upon either a use of authority of office LE
confidential information;
(3) Cole!la's arguments as to the facts are reassertions of rejected
arguments; and
(4) Bankruptcy does not bar this Commission from performing its
statutory responsibilities under the Ethics Act.
CoIeIIa cites urello v. State Employment Retirement System, 411 A.2d 852 (Pa.
Commw. Ct. 1980) for the proposition that our decision in CoIeIIa, Order 1130 is an
application of an ex post facto law in contravention of Article I, Section 17 of the
Pennsylvania Constitution.
- The term "ex post facto law" is defined to mean a law which retroactively
changes the legal consequence of an act which occurred prior to the enactment of that
law. See, Black's Law Dictionary_, fifth edition.
Act 93 of 1998 provides in part:
Section 2.12 (a) Except otherwise specifically provided in this act, it is the
intention of this act to continue existing law.
(b)13 All litigation, hearings, investigations and other proceedings
whatsoever under any statute repealed by this act shall continue and
remain in full force and effect and may be completed under the provisions
of this act.
ColeIla, 97- 050 -C2
Page 3
Section 5.21 Except where specifically revised by this act, Chapters 7, 11
and 13 shall be a codification of existing law. (Emphasis added)
The issue raised by ColeIla has been decided in Commonwealth v. McNamara, 93
Pa. Super 267, (1928). In the cited case, the court held that the ex post facto
prohibition did not apply to a conviction under the Vehicle Code regarding automobile
conduct that occurred under prior law:
It will be observed that though defendant's offense is denied in the same
words that were used to define it in the prior statutes, the only change on
the subject is that punishment was mitigated (Sec. 1202 -b, P.L. 950) by
reducing the possible period of imprisonment; we have then no question
of ex post facto law.
The principle governing the decisions relied on by appellee to the effect
that absolute repeal of a criminal statute destroys the power to prosecute
for offenses against it, is really not involved in this record because there
was not an absolute repeal of the law defining the misdemeanor; the repeal
was merely formal, because it is clear that the revision or codification of
the existing statutes on the subject, indicate a legislative intention that the
misdemeanor in question as defined in the prior acts should continue to be
subject to punishment; the repeal merely took them off a number of statute
books by substituting for them a single law.
Id, 270, 271.
See also, Myers v. Ridge, 712 A.2d 791 (Pa. Commw. 1988)
As to the operative sections of the Ethics Act in this case, Act 93 did not enact,
amend, repeal or make any substantive change in the law. Act 93 merely moved the
existing Ethics Act to a location in the Pennsylvania Consolidated Statutes. Such a
codification of the law is not an ex post facto law.
Colella's second argument is that a material error of law occurred because a
violation was found without a showing that ColeIla used confidential information. ColeIla
misreads Section 1103(a) of the Ethics Act which requires either a use of authority of
office or confidential information, but not both. This provision of the Ethics Act is in the
disjunctive, not the conjunctive. See, 65 Pa.C.S. §§1103(a), 1102.
The third argument makes a challenge to our determination based upon the
record. Since we have considered and rejected such arguments in the base order, we
do not choose to consider the same issues for a second time.
Lastly, as to the argument that Cole!la's filing in bankruptcy might put this
Commission in violation of federal law, apparently because of the automatic stay of the
bankruptcy proceeding, ColeIla has cited nothing in support of her assertion.
There is an exemption to the automatic stay provision of 11 U.S.C. §362(a) found
in subsection (b):
The filing of a petition...does not operate as a stay -- (4) under subsection
(a) (1) of this section, of the commencement or continuation of an action
or proceeding by a governmental unit to enforce such governmental
unit's police or regulatory power.
11 U.S.C. §362(b)
CoIeIIa, 97- 050 -C2
Page 4
In Re Michman, 144 B.R. 259 (1992) the government was not stayed from
pursuing a civil claim against a debtor who was charged with violations of various
federal statutes:
Id at 261
The intent of the statute is clear: where the government has brought suit
to stop fraud and to fix damages for the commission of fraud, the action
may proceed to trial, despite a defendant's bankruptcy filing, so that the
Government's claim may be liquidated. In the interests of protecting
other creditors through an orderly reorganization or liquidation, however,
the Government is stayed from executing on any money judgment
entered.
As the Court of Appeals has explained, "(bly simply permitting the
government's claim to be reduced to a judgment, no seizure of property
takes place. Moreover, that. Congress carefully made only enforcement
of a money judgment subject to the automatic stay indicates strongly
that mere entry of the judgment was not intended to be proscribed.
Nicolet, 857 F.2d at 209.
To hold otherwise would make the bankruptcy court a haven for wrongdoers.
See, In Re Commonwealth Companies, 913 F.2d 518 (1990).
This Commission is charged with regulating the conduct of public
officials /employees within the Commonwealth. The instant matter involves
wrongdoing by CoIeIIa, a public official, who as tax collector converted tens of
thousands of tax dollars to her personal use. Order 1 130 found a violation of the
Ethics Act based upon Colella's wrongdoing. Order 1130 makes a referral for criminal
prosecution. Although Order 1130 directs restitution, it does not seek to collect a
judgement against CoIeIIa.
It is our view that the proceeding of this Commission is not stayed by Colella's
bankruptcy for the above reasons.
No argument has been raised by CoIeIIa 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. CoIeIIa has failed to meet her burden of
proof to establish any need for reconsideration. The Petition for Reconsideration is
denied.
In re: Cole Ila
File Docket: 97-050-C2
Date Decided: 8-30-99
Date Mailed: 9-7-99
RECONSIDERATION ORDER NO. 1130-R
1. The Petition for Reconsideration of Cole Ila, Order No. 1130, is denied.
BY THE COMMISSION,
06 aue...•
DANEEN E. REESE, CHAIR