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HomeMy WebLinkAbout84-010-R WengerSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 October 10, 1984 OPINION OF THE COMMISSION Pennsylvania State Association 84 -010 -R of Township Supervisors c/o Tom Wenger, Esquire Wix, Wenger, & Weidner Box 845 508 North Second Street Harri sburg, 'PA 17108 -0845 RE: Petition to Intervene, Reconsideration Request, PSATS, Cowie, 84 -010 Dear Mr. Wenger: I. Issue: You have asked us to reconsider our Opinion issued in Cowie, 84 -010. II. Factual Basis for Determination: A chronology of the events in this case is important and follows: 1. March 12, 1984 - State Ethics Commission received request for advice from Donald W. Cowie, hereinafter, Cowie. 2. March 22, 1984 - State Ethics Commission acknowledged receipt of above letter. 3. April 9, 1984 - Cowie letter of March 29, 1984 received supplying more information. 4. May 1, 1984 - Cowie advised that the State Ethics Commission would consider his request at meeting of May 15, 1984. 5. May 15, 1984 - Cowie appeared at State Ethics Commission meeting; State Ethics Commission reviews and rules on request. 6. May 24, 1984 - Opinion, 84 -010 issued and mailed to Cowie. PSATS /Thomas Wenger, Esquire October 10, 1984 Page 2 7. June 4, 1984 - State Ethics Commission received letter dated May 30, 1984, from Cowie requesting reconsideration. 8. June 8, 1984 - State Ethics Commission received letter dated June 30, 1984, from the Pennsylvania State Association of Township Supervisors (PSATS) requesting they be allowed to Intervene in proceedings and that the ruling in Cowie, 84 -010 be reconsidered. 9. June 11, 1984 - State Ethics Commission acknowledged receipt of items No. 7 and 8 above. 10. June 20, 1984- State Ethics Commission received Memorandum of Law from PSATS. 11. June 21, 1984 - State Ethics Commission received letter from Cowie with further information. 12. July 13, 1984 - State Ethics Commission sent notice to Cowie of the meeting to be held July 31, 1984, to consider his request for reconsi deration. 13. July 24, 1984 - You were advised that your (PSATS) reconsideration request would be considered on July 31, 1984. 14. July 13, 1984 - The State Ethics Commission considered the request of Cowie for reconsideration and denied same. At this meeting you stated you had not been notified that the PSATS request for reconsideration would be considered by the Commission on July 31, 1984 and you requested that this petition be held over until the next meeting. 15. September 11, 1984 - The State Ethics Commission notified PSATS through your office that their request for reconsideration and petition to Intervene would be considered by the State Ethics Commission at the meeting of September 26, 1984. 16. September 26, 1984 - The State Ethics Commission met to hear your petitions; you indicated that you would not appear or make any further presentation. 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. PSATS /Thomas Wenger, Esquire October 10, 1984 Page 3 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 Proceduf e : §35.27'. Ihitiation' of Intervntion. 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 United States or of this Commonwealth. PSATS /Thomas Wenger, Esquire October 10, 1984 Page 4 (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; employees 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. (b) 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 petit "ions "tb' intervvehe. 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. §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 PSATS /Thomas Wenger, Esquire October 10, 1984 Page 5 IV. Discussion : 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 Cowie, 84 -010 by PSATS. As we re- stated recently in PUC %Keener- Farley, 84- 005 .7d Cowie, 84- 010 -R(1), 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 - h ere. It is sufficient to state that our discretion in granting reconsideration 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 Cowie 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 these Petitions. We do not wish to over - emphasize the lateness of PSATS' entry into these proceedings because as we stated in PSATS/Krahe, 84- 001 -R, if we were 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 Petitions. A review of the reasons given to convince us to reconsider, however, reveals that the arguments of PSATS are not sufficient, as in PSAT"S /Krane, to convince us that our discretion to reconsider should be exercised. See also our ruling in Cowie, 84- 010 -R(1). Finally, in this proceeding PSATS also presents a Petition to Intervene. We do not wish to enter into a lengthy and unproductive discusssion about the standards by which to judge such an application. We do not believe it is necessary 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 Cowie 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 public officials other than Mr. Cowie and that PSATS can establish the requisite legal interest and standing to pursue this Petition to Intervene, 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 of impact of our actions. In any event, having decided to refuse this request for reconsideration, the proceedings are ended and no further action is necessary with respect to the Petition to Intervene. PSATS /Thomas Wenger, Esquire October 10, 1984 Page 6 V. Conclusion: The Petition to Reconsider is Denied. Having denied said Petition, the Petition to Intervene is moot. SSC /na cc: Donald W. Cowie By the Commission , HERBE B. :TNER Chai rman