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HomeMy WebLinkAbout84-005-R DelaneyPennsylvania Public Utility Commission c/o David P. Delaney Deputy Chief Counsel G -28 North Office Building Harrisburg, PA 17120 II. Factual Basis for Determination: - STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION April 11, 1984 RE: Reconsideration Request, PUC, Keener - Farley, 84 -005 Dear Mr. Delaney: I. Issue: 84 -005 -R On behalf of the Pennsylvania Public Utility Commission (PUC) you have asked us to reconsider our Opinion issued in Keener - Farley, 84 -005. A chronology of the events in this case is important and follows: 1. December 7, 1983 - State Ethics Commission (SEC) receives request for Opinion from Lawrence Keener- Farley, hereinafter, Keener- Farley, in form of letter dated December 5, 1983. 2. December 8, 1983 - SEC acknowledges receipt of December 5, 1983 letter. 3. December 12, 1983 - State Ethics Commission receives additional information as requested from Keener - Farley. SEC advises Keener - Farley by letter that request will he presented to full Commission for review. A copy of the Keener - Farley request (No. 1 above) and this December 12, 1983 letter is provided to PUC Personnel Director, William Bauer. 4. December 14, 1983 - SEC receives information and letter from PUC Personnel Director, William Bauer. SEC provides copy of all items received from William Bauer to Keener- Farley. Pennsylvania Public Utility Commission Page 2 5. December 15, 1983 - Keener- Farley advised by-phone of meeting date -and procedures. 6. December 16, 1983 - William Bauer advised by phone of meeting date and procedures. 7. February i, 1984 -- Meeting notification letter sent to Keener- - Farley, copy to William Bauer. 8. February 9, 1984 - Keener- Farely ells SEC to advise he will attend meeting on February 23, 1984, make presentation at that time as well as submitting Brief in advance. William Bauer called to inquire if a praecipe for appearance was needed to appear at the February 23, 1984 meeting. He was advised, as he had been previously, that our request procedure and meetings were informal, non - adversarial, but that the SEC usually allows comments and input from persons or agencies as needed. Bauer advised that someone from the PUC would attend our February 23, 1984 meeting. Bauer was given copies of all request material. Keener - Farley was advised of Bauer's interest in case. 9. February 13, 1984 - Brief of Keener - Farley received by SEC. 10. February 23, 1984 - SEC meets, hears presentation by Keener- Farley, and rules on his request. No representative of the PUC was present. 11. February 24, 1984 - SEC issues Opinion 84 -005. 12. March 12, 1984 - SEC receives request to reconsider Opinion, 84 -005 from Daniel P. Delaney, acting on behalf of the PUC. 13. March 13, 1984 - SEC acknowledges reconsideration Petition, directs letter to Delaney setting a March 27, 1984 deadline for further information and advises Keener - Farley of Petition. 14. March 14, 1984 - Keener-Farley calls to indicate he will respond by March 27, 1984. 15. March 16, 1984 - Chief Counsel at PUC calls to request extension of time for filing further- data, briefs, etc. Material should be filed no later than March 30, 1984. 16. March 22, 1984 - letters of notification of meeting on April 6, 1984 sent to Daniel Delaney with copies to Keener - Farely and William Bauer. Pennsylvania Public Utility Commission Page 3 17. March 27, 1984 - Motions and Answer filed by Keener - Farley. 18. March 30, 1984 - SEC receives response(s) from PUC as follows: Reply to Petitioner's Answer to the PVC's Petition for Reconsideration; PUC Response to SEC letter of March 13, 1984 (No. 13, above); and /or PUC Petition to Intervene. 19. April 6, 1984 — Meeting was held to consider all of the above and presentations were made by Daniel Delaney on behalf of the PUC and by the requestor, Keener - Farley. All of these items have been made part of our review of this Petition. 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). Pennsylvania Public Utility Commission Page 4 -C 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. (2) By order of the agency upon petition to intervene. 1 Pa. Code 35.27. §35.28. Eligibility to intervene. (a) Persons. 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 any one of the following: (1) A right conferred by statute of the th ited States or of this Commonwealth. (2) An interest which may he 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 prticipation of the petitioner may be in the public interest. (h) Commonwealth. The Commonwealth or any officer or agency thereof may intervene as of right in any proceeding subject to the provisions of this part. 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 notwithstanding his nfailuree permitted to to file his within the time prescribed in this section, the agency head or presiding officer may, permit the waiver of� the e requirements m of this title (relating to copies to §35.1 parties agency) with respect to copies of exhibits for such 1 Pa. Code 35.30. §35.31. Notice and action on petitions to intervene. (a) Notice and service. Petitions to intervene, when tendered to an agency for filing, upon all participants to�thea proceeding r in Ce conformity with §33.32 of this title (relating to service by a participant). (b) Action on petitions. As soon as the expiration of the time for filing answers c to l such ter petitions or default thereof, as provide this title (relating to answers topetiitions §35.36 of intervene), the agency will whole or part or may, if found a to he dpepy such petition in authorize limited participation. No petitions to intervene may be filed or will be acted upon during a hearing unless permitted by the agency after o for all parties to object thereto. Only to avoiidr detriment to the public interest will an officer tentatively permit Y presiding participation advance of, and then only pation in a hearing in a of a y subject to, the granting by the petition to intervene. 1 Pa. Code 35.31. IV. Discussion: We have been presented with lengthy legal arguments from both the orginal requstor, Keener -Earle a deny r igi n leq es in this case, y, in this case to us toe grant or and which to decide whether to However, we must observethestandards or upon p n that gtnt ci a wheth grant or deny reconsideration. body and is 9 is within the sound discretion of the reviewing generally granted to afford an opportunity evidence not offered at the original proceed Douglas nc v. WCAR g becausetitawascnoteavaillable. 32 Pa. Cmwlth. 156, 377 A.2d 1300 1977 not be allowed solely for the for bee purpose purpose of strengthening ' Rehearing d or proof pun ose of hearing testimony which may 9 a weak case sy Glass - Sand Corp v. WCAB Y be cumulative. Pennsylvania or etiti where we adopted these standards Y 377, 407 A.2d 76 (1979. See Coyle petitions. y which to judge reconsideration Pennsylvania Public Utility Commission Page 5 Pennsylvania Public Utility Commission Page 6 In the present case we were provided with sufficient material, both by the PUC and Keener- Farley, in advance of our February 24, 1984 ruling to effectively review the questions presented. The PUC, whether acting or treated merely as a source of information or even if they had petitioned for and been permitted to intervene in a timely fashion, was provided with notice and an opportunity to present its position to this Commissjon. The PUC provided written data and arguments, apparently chose to not appear at our February 23, 1984 meeting (despite advance notice of samerand now complains of our reasoning and ruling. As we read the Petition currently under consideration, we are said to have misunderstood the facts, misapplied the law or failed to recognize analogous case law and the interests of the PUC as employer. However, the basic point of the Petition is that we failed to reach the conclusion the PUC would have preferred. We are not persuaded by this Petition that we have overlooked facts or misapplied our law. We should emphasize that we cannot, within our role as prescribed in the Ethics Act, address the propriety of all actions of an employee which may be of conceal to an employer. We cannot exceed our jurisdiction to accomodate the expections of the PUC as an employer or assume, under the guise of a ruling under the Ethics Act, the role which is properly ascribed to the PUC as employer. Our ruling was properly limited to Keener- Farley's obligations under the Ethics Act. Despite the PUC's assertion that we have failed to review the impact of our ruling on their operations and analogous areas of law, we believe we have adequately reviewed this request under the Ethics Act. Even assuming, without deciding that the PUC has the requisite legal interest and standing to sustain such a Petition, the PUC's Petition asserts only that the facts were not properly reviewed and does not assert that facts or testimony which were previously unavailahle exist. The PUC has likewise, not convinced us that we have misapplied the Ethics Act to these facts. Our discretion will be exercised to DENY the requested reconsideration. We wish to state, however, that we are distressed by the actions of the PUC in this case. As a sister agency, the PUC must recognize that this Commission is required to provide opinions in accordance with and limited by the provisions of the Ethics Act. See 65 P.S. 407(9)(i). The applicable provisions of the Ethics Act state that it is our duty to "issue to any person, upon such person's request ", an opinion with respect to the requestor's duties under the Ethics Act. The "material facts as stated in the opinion request" are determinitive in our review. While we advise an agency of a request and may request and receive data from an agency, our proceedings in issuing an opinion are fundamentally non - adversarial. We also seek to retain the informality of our proceedings. The actions of the PUC in this case have created an adversarial atmosphere which we believe is inappropriate and perhaps inapplicable to our request proceedings. Pennsylvania Public Utility Commission Page 7 In any event, the PUC as a Commission, should it wish to formally enter a proceeding, was certainly at liberty to present the appropriate timely application to do so. Counsel for the PUC are undoubtedly familiar with the methods and procedures for doing so and must be aware that merely providing information to an agency does not confer the status of a party or intervenor. We cannot understand or accept the actions of the PUC in this case. The PUC acquiesed in these proceedings, did not express or press any desire to participate in a formal manner despite being advised of the informal status typically accorded such agencies in our proceedings, and now asks us to grant them the right to intervene or re- present to us as a formal party, information or arguments they were fully able to and did present to us on an informal basis. This request to Intervene Nunc Pro Tunc coming at this point in the proceedings and given the lack of participation by the PUC in our meeting of February 23, 1984, is baffling at best. We feel that if formal participation was desired by the PUC they were not unaware of.or misled as to their right to petition for such status in a timely fashion. We agree with the Supreme Court's statement in Official Court Reporters of the Court of Common Pleas of Philadelphia County v. P.L.R.B., Pa. , 467 A.2d 311 (1983) that: The right to administrative relief is a privilege afforded by law. Unless the interests of either aggrieved "persons" or parties are brought to the attention of the administrative agency through proper channels it will be impossible for it to give them proper consideration. As the United State Court of Appeals for the District of Columbia said in a similar context: The burden, therefore, is, and properly should be, upon an interested person to act affirmatively to protect himself. It is more reasonable to assume in this case a legislative intent that an interested person should be alert to protect his own interests than to assume that Congress intended the Commission to consider on its own motion the possible effect of its action in each case, upon every person who might possibly be affected thereby. Such a person should not be entitled to sit back and wait until all interested persons who do so act have been heard, and then complain that he has not been properly treated. To permit such a person to stand aside and speculate on the outcome; if adversely affected, come into this court for relief: and then permit the whole matter to be reopened in his behalf, would create an impossible situation. Citing Red River Broadcasting Co. v. F.C.C., 98 F.2d 282, 286 -87, cert. denied, 305 U.S. 625 (1938). Pennsylvania Public Utility Commission Page 8 Therefore, even assuming, without deciding that the PUC has the requisite legal interest and standing to do so, we DENY the PUC Petition to Intervene Nunc Pro Tunc. We do so additionally because, as we understand the factual context of this case, Keener - Farley's representation of Ms. Boddy, about which the PUC appears most concerned, has been withdrawn. This entire episode, therefore, with which the PUC expresses such distress may be moot. Finally, our ruling as to the propriety of Keener - Farley's actions under the Ethics Act, does not, as we stated above, limit the rights, duties, and interests of the PUC to effectively control its employees or its operations under other codes, resolutions, statutes, etc. V. Conclusion: The Petition to Intervene, Nunc Pro Tunc is Denied. the Petition for Reconsideration is denied. SSC /rdp cc: Lawrence E. Keener-Farley By the Commission, PAUL J. ITH Chairman