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HomeMy WebLinkAbout85-009-R McElrathDorothy B. McElrath c/o William G. McConnell, Esquire Gusick, Madden, Joyce & McKay First Federal Building Sharon, Pennsylvania 16146 I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 RECONSIDERATION OPINION OF THE COMMISSION DEC 1 19 6 DECIDED , iAI LED C.V a '"4r'� 6 85 -009 -R Re: Opinion 85 -009 Reconsideration; Simultaneous Service, Local Tax Collector, Employee, Office of County Controller Dear Ms. McElrath: This responds to the letter of November 19, 1986, submitted on your behalf by William G. McConnell, Esquire, requesting reconsideration of Opinion No. 85 -009. Whether the State Ethics Commission should reconsider its opinion, 85 -009, wherein it was determined that simultanoues service by one individual as a local tax collector and an employee of the county controller's office would not be permitted within the purview of the State Ethics Act. II. Factual Basis for Determination: On July 11, 1985, the State Ethics Commission issued an opinion to Joseph Nelson, Esquire, regarding his client, Dorothy McElrath. Generally, the question presented by that opinion request concerned whether there was any violation of the State Ethics Act when one individual simultaneously serves as a borough tax collector and a senior account clerk in the Office of County Controller. The opinion issued by the Commission specifically determined that there was an inherent incompatibility that would result from such simultaneous service and, therefore, such service would not be permitted within the purview of the State Ethics Act. On November 19, 1986, the State Ethics Commission received a request from William G. McConnell, Esquire, on behalf of Ms. McElrath, requesting that the Commission reconsider its opinion. The basis for this request was grounded Dorothy B. McElrath Page 2 upon the fact that the job description of Ms. McElrath in her position as senior account clerk with the Office of County Controller had been substantially modified. Specifically, it was noted that Ms. McElrath no longer was involved with: A. Posting manually to ledgers receipts for funds collected in the delinquent tax office. Data entry of these receipts on computer to Inter Financial Management Systems of Mercer County. B. Update maintenance on revenue. C. Data entry to disburse funds collected by the Delinquent Tax Office. Mr. McConnell submitted that with the removal of these particular job duties, the actual area of conflict was removed and all that remained was the appearance of a conflict of interests. Mr. McConnell noted that Ms. McElrath is one of nine employees in the Office of Controller. Mr. McConnell further provided a current copy of the position description for the senior account clerk. It is noted that many of the functions set forth in this job description relate to duties and responsibilities regarding county employees retirement benefits. It is noted that the job description also provides that this individual may assist the deputy controller in auditing of invoices and verifying data and may also perform other related tasks and duties as assigned or required. III. Discussion: Initially, we must note that the regulations of the State Ethics Commission set forth guidelines for the issuance of opinions and for the appeal process in relation thereto. In this respect, the regulations of the Commission provide as follows: § 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. Clearly, the issue of granting reconsideration is a matter that is committed primarily to an agency's discretion. A ruling to grant or deny reconsideration will not be disturbed, absent a showing, of an abuse of such discretion. Pennsylvania State Association of Township Supervisors v. State Ethics Commission, Pa. Commw. Ct., 499 A.2d 735, (1985). Specifically in relation to the timing requirement for the filing of requests for reconsideration, the individual filing an untimely request is required to Dorothy B. McElrath Page 3 allege and prove a breakdown in the postal process in order to excuse an untimely filing. Absent such showing, the denial of a request, based upon the failure of the applicant to timely file said request, is not an abuse of discretion. Getz v. Pennsylvania Game Commission, Pa. Commw. Ct. , 475 A.2d 1369 (1984). In the instant situation, your request for reconsideration, of our original opinion, has been filed approximately 17 months after the filing deadline. You have failed to allege any reason, whatsoever, for the substantial delay in this matter and, as such, we will deny your request for reconsideration based upon the failure to timely file your application for reconsideration. See, Smith, 85 -015. In addition to the foregoing, however, we feel that it is important to note that while the duties of the senior account clerk appear to have changed to some degree, as set forth in the facts, many of the concerns that formed the basis of this Commission's original opinion have not been addressed and still appear to be operative. Specifically, Ms. McElrath has access to confidential information and personnel, at the county level that, relate to local tax collection, including those of her own borough where she serves as a tax collector. Additionally, the controller's office, where she now works, has direct responsibility for accountings that are due from local tax collectors. This would include a borough tax collector such as Ms. McElrath. The controller also has responsibility to audit these collection officers and may take appropriate action upon finding some misappropriation or other irregularity. As noted in our original opinion, the office of controller still performs some functions relating to the compensation due to tax collectors and the calculation thereof. The above factors were important elements of our original opinion and do not appear to be altered by the amended job description. As such, it is our belief that even had we allowed this request for reconsideration to be heard, that the elements outlined in your letter of request do not reach the level necessary to obtain a reversal or modification of our original opinion. IV. Conclusion: The request for reconsideration is denied. This denial is based upon the failure to timely file such request in accordance with the regulations of the State Ethics Commission. It is further noted that had such a request been timely filed, there does not appear to be any new information upon which a reversal of our original opinion could be based. Dorothy B. McElrath Page 4 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. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. JJC /sfd By the Commission, G. Sieber Pancoast Chairman