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HomeMy WebLinkAbout84-010-R-1 CowieMr. Donald W. Cowie c/o Tom Wenger, Esquire Wix, Wenger, & Weidner Box 845 508 North Second Street Harrisburg, PA 17108 -0845 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 July 31, 1984 OPINION OF THE COMMISSION 84- 010 -R(1) RE: Reconsideration Request, Cowie, 84 -010 . Dear Mr. Cowie: 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. 7. June 4, 1984 - State Ethics Commission received letter dated May 30, 1984, from Cowie requesting reconsideration. Mr. Donald W. Cowie July 31, 1984 Page 2 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 and PSATS of the meeting to be held July 31, 1984, to consider these matters and questions of reconsideration. 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 Mr. Donald W. Cowie July 31, 1984 Page 3 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. (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. (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. Mr. Donald W, Cowie July 31, 1984 Page 4 IV. Discussion: &35.30. Filing of petitions to intervene. Petitions to intervene and notices of intervention may be filed at any time following filing of an applications,, petiton, 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 fiailure 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. X30.31. Notice and action on petitions to intervene. (c) Notice and service. Petitions to intervene, when tendered to an agency for filing, shall show service thereof open ell paoticipants 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 presented with arguments from both PSATS and the original requestor, Donald Cowie, in this case to persuade us to grant reconsideration in this case. However, we must observe the standards upon which to eecide whether to grant or deny reconsideration. It has been held that granting rehearing is within the sound discretion of the reviewing body and is generally granted to afford an opportunity to adduce testimony or evidence not offered at the original proceeding because it was not available. Douglas v. WCAB, 32 Pa. Cmwlth. 156, 377 A.2d 1300 (1977). Rehearing should not be allowed solely for the purpose of strengthening a weak case or proof or Mr. Donald W. Cowie July 31, 1984 Page 5 for the purpose of hearing testimony which may be cumulative. Pennsylvania Glass - Sand Corp v. WCAB, 46 Pa. Cmwlth. 377, 407 A.2d 76 (1979). See Coyle, 83 -002, where we adopted these standards by which to judge reconsideration petitions. Basically, PSATS and Cowie request 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 and Cowie in their respective Petitions, obviously, express disagreement with our conclusion, but fail to convince us that we should exercise our discretion to reconsider same. We note that one major concern of Cowie is as to the proper definition of "compensation" in Section 3(a) of the Ethics Act. Recently, in our Opinion on Davis, 84 -012, we addressed this question in more depth and we refer to this fission as further evidence of our conclusions on this topic. We do not find that questions raised regarding our alleged misunderstanding of this term are sufficiently persuasive to reconsider our ruling herein. Finally, we appreciate the fact that our attention is drawn to the lack of citation of the provision of the Insurance Code dealing with group health insurance in Part III of our Opinion issued on May 24, 1984. Our Opinion recognized the fact we were dealing with the provisions of 40 P.S. 756.2 rather than 40 P.S. 532.2. The omission of the equivalent reference to 40 P.S. 756.2 does not reflect a lack of review of the appropriate or controlling law, indicate an analytical error exists, or convince us that reconsideration is warranted. V. Conclusion: The Petition for Reconsideration is Denied. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Mr. Donald W. Cowie July 31, 1984 Page 6 Finally, any person may request within 15 days of servicc 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. SSC /na By the C sio HERBERT : Cs NER Chairman '4.`1\