HomeMy WebLinkAbout84-001-R WengerPennsylvania State Association
of Township Supervisors
c/o Tom Wenger, Esquire
Wix, Wenger & Weidner
Box 845
508 North Second Street
Harrisburg, PA 17108 -0845
II. Factual Basis for Determination:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
April 11, 1984
RE: Reconsideration Request, PSATS, Krane, 84 -001
Dear Mr. Wenger:
I. Issue:
84 -001 -R
On behalf of the Pennsylvania Association of Township Supervisors (PSATS)
you have asked us to reconsider our Opinion issued in Krane, 84 -001.
A chronology of the events in this case is important and follows:
1. December 5, 1983 - State Ethics Commission (SEC) receives request
from Bruce E. Krane, hereinafter, Krane, in form of letter dated
December 1, 1983.
2. December 8, 1983 - letter from SEC to Krane acknowledging receipt of
December 1, 1983 letter.
3. December 14, 1983 - letter from SEC to Krane stating request would
be presented to full Commission for review, opinion.
4. December 28, 1983 - Speed memo from Sandra S. Christianson, Counsel
to SEC, to Tom Wenger, Counsel to PSATS, attaching copies of Items
1 - 3 listed above and stating "let me know if you wish to get
notice of meeting."
5. February 7, 1983 - letter to Krane stating time, place, and date
(February 23, 1984) for meeting to consider his request.
Carbon cohies of the above letter sent to Tom Wenger, among others.
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of Township Supervisors
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6. .February 22, 1984 - Mr. Wenger, calls SEC offices and receives phone
number of Krane from Counsel to Commission.
7. Fehruary 23, 1984 - Meeting of SEC convened as set forth in notice
of February 7, 1983 (No. 5 above). Mr. Wenger appears and requests
delay or continuance in consideration of Krane request. SEC denies
continuance, votes on request.
8. Fehruary 24, 1984 - SEC issues Opinion in Krane, docketed at 84 -001
and copies are forwarded to Mr. Wenger, among others.
9. March 9, 1984 - SEC received a Petition for Reconsideration from
PSATS, hereinafter the Petition, which is the subject of this
Opinion. This Petition set forth four bases upon which
reconsideration was requested:
a. The Commission apparently rendered its decision based solely
upon a letter of request for an advisory opinion submitted by
Mr. Krane without the benefit of a fully developed dialogue on
the issue.
b. The decision rendered may have far reaching, significant impact
upon township supervisors, other elected municipal officials,
and their dependents which has not been fully considered by the
Commission.
c. The Commission failed to accurately apply the relevant and
controlling statutory law to the issue before it.
d. The Commission failed to accurately interpret and apply the
ruling of the Commonwealth Court in McCutcheon and Hoak v.
Commonwealth of Pennsylvania, State Ethics Commission, 466 A.2d
283 1983 .
10. March 13, 1984 - SEC acknowledges receipt of this Petition March 13,
1984, and requested that any additional arguments, briefs, etc. be
submitted by March 27, 1984.
11. April 3, 1984 - Memorandum of Law received by SEC on behalf of
PSATS.
12. April 6, 1984 - PSATS Counsel and representative, Kenneth Greider,
PSATS Executive Director, appeared, made presentations, and
responded to questions at our meeting.
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of Township Supervisors
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In addition, although not specifically related to the Krane request, the
staff of this Commission met with representatives from PSATS to discuss
pension life /annuity programs at issue in Hoak, No. 128 and Pa.
Cmwlth. , 466 A.2d 283 (1983). These meetings were held March 8, 1983 and
December 6, 1983 and the subject of hospitalization and term life insurance
was brought up at these meetings although no conclusions or concensus of
understanding was reached by the participants.
III. Applicable Law:
The law to be applied to this question is as follows:
Regulations of the State Ethics Commission
2.15. Reconsideration of opinions.
Any person may request within 15 days of service of the
opinion that the Commission reconsider its opinion. The
person requesting reconsideration should present a
detailed explanation setting forth the reasons why the
opinion requires reconsideration. 51 Pa. Code 2.15.
The Ethics Act
Section 7. Duties of the commission
(9)(i) Issue to any person, upon such person's request, an
opinion with respect to such person's duties under this
act. The commission shall, within 14 days, either issue
the opinion or advise the person who made the request
whether an opinion will be issued. No person who acts in
good faith on an opinion issued to him by the commission
shall be subject to criminal or civil penalties for so
acting, provided that the material facts are as stated in
the opinion request. The commission's opinions shall be
public records and may from time to time be published.
65 P.S. 407(9)(i).
General Rules of Administrative Practice and Procedure
§35.27. Initiation of Intervention.
Participation in a proceeding as a party intervener may be
initiated as follows:
(1) By the filing of a notice of intervention by any
other agency of the Commonwealth which is authorized by
statute to participate in the proceeding.
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of Township Supervisors
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(2) By order of the agency upon petition to intervene.
1 Pa. Code 35.27.
§35.28. Persons eligible to intervene.
A petition to intervene may be filed by any person
claiming a right to intervene or an interest of such
nature that intervention is necessary or appropriate to
the administration of the statute under which the
proceeding is brought. Such right or interest may be:
(1) A right conferred by statute of the United States
or of this Commonwealth.
(2) An interest which may be directly affected and
which is not adequately represented by existing parties
and as to which petitioners may be bound by the action of
the agency in the proceeding. The following may have such
an interest: consumers, customers, or other patrons
served by the applicant or respondent; holders of
securities of the applicant or respondent; employes of the
applicant or respondent; competitors of the applicant or
respondent.
(3) Any other interest of such nature that
participation of the petitioner may be in the public
interest. 1 Pa. Code 35.28.
§35.30. Filing of petitions to intervene.
Petitions to intervene and notices of intervention may be
filed at any time following the filing of an application,
petition, complaint, or other document seeking agency
action, but in no event later than the date fixed for the
filing of petitions to intervene in any order or notice
with respect to the proceedings published in the
Pennsylvania Bulletin, unless, in extraordinary
circumstances for good cause shown, the agency authorizes
a late filing, Where a person has been permitted to
intervene notwithstanding his failure to file his petition
within the time prescribed in this section, the agency
head or presiding officer may, where the circumstances
warrant, permit the waiver of the requirements of §35.169
of this title (relating to copies to parties and agency)
with respect to copies of exhibits for such intervener.
1 Pa. Code 35.30.
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of Township Supervisors
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IV. Discussion:
§35.31. Notice and action on petitions to intervene.
(a) Notice and service. Petitions to intervene, when
tendered to an agency for filing, shall show service
thereof upon all participants to the proceeding in
conformity with §33.32 of this title (relating to service
by a participant).
(b) Action on petitions. As soon as practicable after
the expiration of the time for filing answers to such
petitions or default thereof, as provided in §35.36 of
this title (relating to answers to petitions to
intervene), the agency will grant or deny such petition in
whole or part or may, if found to be appropriate,
authorize limited participation. No petitions to
intervene may be filed or will be acted upon during a
hearing unless permitted by the agency after opportunity
for all parties to object thereto. Only to avoid
detriment to the public interest will any presiding
officer tentatively permit participation in a hearing in
advance of and then only subject to, the granting by the
agency of a petition to intervene. 1 Pa. Code 35.31.
We have been asked to reconsider our Opinion in Krane, 84 -001 by PSATS.
As we re- stated recently in PUC /Keener - Farley, 84- 005 -R, the circumstances
under which reconsideration should be granted are limited. See also Coyle,
83 -002. We will not repeat all the criteria discussed in those cases here.
It is sufficient to state that our discretion in granting reconsideraton is
broad and if exercised in a sound manner will be sustained.
In the present case, as set forth in Part II above, it is clear that
PSATS had sufficient notice of and ample opportunity to participate in the
Krane request and proceedings or to present a Petition to Intervene in same
which could have been addressed and ruled upon in a timely fashion. The PSATS
apparently chose not to officially involve itself in these proceedings until
the presentation of this Petition. The Memo of Law which we received on April
3, 1984, does not offer any explanation or justification for failure of PSATS
to participate in the Krane Opinion, in a timely and /or formal manner.
We do not wish to over - emphasize the lateness of PSATS' entry into these
proceedings because if we had been convinced by PSATS that we should
reconsider this ruling we would be willing to do so despite the lateness of
the arguments raised by their Petition. A review of the reasons given to
convince us to reconsider, however, reveals that the arugments of PSATS are
insufficient to convince us that our discretion to reconsider should he
exercised.
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of Township Supervisors
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Basically, PSATS requests that we should reconsider our ruling because we
allegedly failed to properly apply relevant and controlling statutory and case
law. We have not been provided with adequate evidence or arguments to
demonstrate that we should reconsider our ruling on this assertion. We are
not convinced that we have misapplied the law or court rulings. PSATS in
their Petition, obviously, expresses disagreement with our conclusion, but has
failed to convince us that we should exercise our discretion to reconsider
same.
Finally, PSATS asks us to reconsider our ruling because this ruling will
have "far- reaching" impact upon other officials, which impact was not fully
considered by this Commission. We note that the ruling in Krane, as set forth
in the Ethics Act applies to and protects only Bruce Krane, see 65 P.S.
407(9)(i). This ruling cannot directly affect the rights and responsibilities
of other officials. Even if this were the case; PSATS, in its Petition, has
provided no explanation as to how this ruling will impact, or to support the
contention that this Commission failed to consider same. The PSATS simply
states that some other persons may be impacted by this ruling and in its Memo
of Law does no more to establish this impact than to state that it seems
sufficient to note that group health care coverage is popular in the public
and private sector" and that use of and reliance upon such programs (is)
widespread among municipal governments in the Commonwealth." However, we do
not have to question whether PSATS has or can establish on its own or on
behalf of its members, the type of substantial, direct and immediate interest
in the Krane proceedings necessary to confer the requisite standing to sustain
this Petition. See In re Family Style Restaurant, Pa. , 468 A.2d 1088
(1983) for a discussion of concepts of standing. Even if we assume, without
deciding, that this ruling will have an impact on other public officials and
that PSATS can establish the requisite legal interest and standing to pursue
this Petition, we are not convinced that we have misunderstood or unduly
restricted our review of the facts, misapplied statutory or case law or failed
to comprehend the nature or impact of our actions. Accordingly, we will deny
this Petition.
In denying this Petition, however, we recognize the concerns that PSATS
expressed at our meeting and that may exist with respect to our ruling in
Krane. These concerns relate to the impact, extent, and application of the
general principles expressed in Krane. While we do not, as set forth above,
believe the opinion - request procedure is the appropriate forum in which to
address questions of the application of Krane, we are interested in receiving
input on this subject. We recognize the value of the information and ideas of
PSATS and others on these general, broad issues. Accordingly, we are
instructing staff to initiate a policy formulation project relating to the
impact of Krane, if any, to receive comments, arguments, and data on this
ruling and its effect and to determine the need for the development and
promulgation of policy or regulations to be applied to similar subjects or
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of Township Supervisors
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SSC /rdp
circumstances. Hopefully, PSATS will be a prime participant in these
proceedings. This Commission, if such a policy formulation docket is opined,
will receive comments and hold hearings as necessary to gather the information
needed to address these questions. Staff shall prepare a policy formulation
notice for our consideration at our next meeting.
V. Conclusion:
The Petition for Reconsideration is Denied. Staff is instructed to
develop a policy formulation notice to be published in the Pennsylvania
Bulletin to solicit comments and announce hearings will be held, as necessary,
to provide information regarding the ruling in Krane, its impact and effect
and the necessity for developing policy or regu ations for applying this
ruling on these principles in Krane, if needed.
cc: Bruce E. Krane
By the Commission,
(
/ Yri
UL J. SMITH
Chairman