HomeMy WebLinkAbout733-R SmytheMr. Robert F. Smythe
c/o Carmen P. Belefonte
200 North Jackson Street
Media, PA 19063
Re: 86 -062 -C
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STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
RECONSIDERATION ORDER OF THE COMMISSION
Order No. 733 -R
Before: Helena G. Hughes, Chair
Robert W. Brown, Vice Chair
W. Thomas Andrews
G. Sieber Pancoast
Dennis C. Harrington
James M. Howley
Date Decided: February 22, 1990
Date Mailed: March 6, 1990
Dear Mr. Smythe:
Your request for Reconsideration was received on December 29,
1989, with respect to the above - captioned Order issued on December
15, 1989 pursuant to 51 Pa. Code 2.38. The discretion of the State
Ethics Commission to grant reconsideration is properly invoked when:
(b) Any party may ask the Commission to reconsider an order
within 15 days of service of the order. The person
requesting reconsideration should present a detailed
explanation setting forth the reasons why the order should
be reconsidered. Reconsideration may be granted at the
discretion of the Commission only where any of the following
occur:
(1) a material error of law has been made;
(2) a material error of facts has been made;
(3) new facts or evidence are provided which would
lead to reversal or modification of the order and
where these could not be or were not discovered
previously by the exercise of due diligence. 51
Pa. Code 52.38(b).
The Commission, having reviewed your request, must DENY your
request because none of these circumstances is present.
Mr. Robert F. Smythe
Page 2
You have submitted two proffered reasons for the grant of
reconsideration which will be considered seriatim.
Your first argument relates to the application of Blackwell et.
at. v. State Ethics Commission, filed in the Pennsylvania Supreme
Court at 162 E.D. Appeal Docket on December 13, 1989. You argue that
because "the State Ethics Commission was a legal non- entity - --
[between June 30, 1980 and June 26, 1989] -- -any actions taken by the
Commission during the period -- -were a nullity." You conclude that the
complaint, investigation and all subsequent actions taken, based upon
the complaint, "are also a nullity."
In reviewing the chronology of events in this case the five day
letter which gave you notice of the investigation was issued on
February 9, 1989. Upon completion of the investigation, a Findings
Report was issued to you on May 3, 1989 and your Answer was filed on
June 2, 1989. After the signing into law of Act 9 of 1989 on June
26, 1989, a notice of hearing was issued on October 5, 1989. The
Investigative Division and you as respondent agreed to facts that were
set forth in the Findings Report (N /T 7, 8) at the hearing on November
10, 1989.
We have before us a case where the facts were submitted at a
hearing which occurred after June 26, 1989. In addition, everything
that relates to our determination occurred at the hearing, that is,
the entire record in this case was made at the November 10, 1989
hearing: the agreed to facts, the testimony, documents and oral
argument. Even if we were to expunge the letter of February 9, 1989
and the Findings Report, the notice of hearing was issued after June
26, 1989 for the November 10, 1989 hearing wherein the agreed to facts
were presented.
Since the notice of hearing, the agreed to facts and the hearing
itself occurred subsequent to June 26, 1989, it is our view that the
Blackwell decision would not have application in this case. Even if
we were to assume, for sake of argument, that the Blackwell decision
extended to this case, such application would not preclude the renewal
of the proceeding. Thus, if your argument is accepted, it would
entail going through the same process a second time which would only
serve to expend the time, finances and resources of the parties
involved. Lex non praecipit inutilia, quia inutilis labor stultus.
Furthermore, the Blackwell decision was extended in West Shore
School District v. Pennsylvania Labor Relations Board, filed in
Commonwealth Court at 15 Misc. Docket 1990 on February 1, 1990. In
the cited case, the Court considered a challenge by the school
district as to sunset status of the Board. The Court held that
Section 7(b) of the Sunset Act which extended the Board by legislative
resolution was unconstitutional. After noting that Section 4(4) of
Mr. Robert F. Smythe
Page 3
the Act - was declared unconstitutional in Blackwell,,supra, the Court
concludedthatwthe remaining provisions of the Act;couid,nQt•carry out
its stated purpose and declared the entireiiAggi6u4cgpstipition411 The
effect of the ajorecited decision is that no agengyyhas been
terminated under the Sunset Act.,
For the above reasons, you have not presented a material error of
law on your first argument.
Your second argument in support of your petition for
reconsideration raises theme legal issb as to whether a. Section 3 (c )
violation may occur if the individual serves as a public employee
rather than a public official and if the individual does not control
the award of the contract
As to your first poip , Section 3(c) specifically applies to both
public officials and en .byees:
(c) "No public official or public
employee...sY 11 enter into any contract
valtied Ata. $ior more with a
governmental body... "65 P.S. S403(c).
Section 3(c) does not contain language which imposes a
requirement of control as to the award of the contract. The legal
requirement under Section • 3 (c) of the Ethics Act is for anp ope} and
publim process when a public official /employee seeks to contract with
his governmental body. I sthis case, the publig,bidding process was
not followed and that is the basis for the viollation.
In lighttof the foregoing, the State Ethics Commission concludes
that your request for reconsideration must be DENIED.
That Order and this decision denying; =reconsideration are final
and shall be made available as public documents -on the fifth (5th)
business day following the date of this Order.
By the Commission
elena G. Hughes
Chair