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HomeMy WebLinkAbout85-024-R LynnMr. Joseph T. Lynn 1308 Capouse Avenue Scranton, PA 18509 I. Issue: C STATE ETHICS COMMISSION 308- FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 March 3, 1986 OPINION OF THE COMMISSION No. 85- 024 -R Re: Reconsideration Request, Claim Settlement Agent, Puhlic Employee Dear Mr. Lynn: Ry letter dated December 7, 1985, you have requested the State Ethics Commission to reconsider its Opinion No. 85 -024, dated November 22, 1985, regarding the Commission's finding that you, as a Claim Settlement Agent I within the Pennsylvania Department of Puhlic Welfare, are required to file a Statement of Financial Interests pursuant to the State Ethics Act. Whether the State Ethics Commission should reconsider its opinion wherein it was determined that a Claim Settlement Agent I, employed by the Pennsylvania Department of Puhlic Welfare, is a puhlic employee as that term is defined in the State Ethics Act, and therefore, required to file a Statement of Financial Interests pursuant to that Act. II. Factual Rasis for Determination: The following is a chronology of events in the instant matter: 1. You are employed by the Pennsylvania Department of Public Welfare, Rureau of Claims Settlement, as a Claim Settlement Agent I. 2. On July 18, 1985, you filed a financial disclosure appeal form alleging that you should not he required to file a Statement of Financial Interests pursuant to the State Ethics Act, and that your responsihilities dirt not meet the requirements and definition of the term puhlic employee as defined in the State Ethics Act. You further asserted that the filing requirement is an invasion of privacy and that certain other individuals who are employed by the Commonwealth were not required to file similar statements. Mr. Joseph T. Lynn Page 2 3. Your appeal was processed as a request for an advice of counsel and on August 20, 1985, Advice of Counsel No. 85 -574 was issued.: That advice concluded that you were a puhlic employee as defined by the Act and, therefore, requi red to fil e a Statement of Fi nanci al Interests. 4. September 5, 1985, the State Ethics Commission received your request that the full Commission review the aforementioned advice of counsel. You did not set forth any additional factors or reasons for your belief that you were excluded from the coverage of the State Ethics Act in that appeal. 5. On October 15, 1985, the State Ethics Commission was advised that a desk audit was conducted with you regarding your position with the Pennsylvania Department of Public Welfare. It was determined as a result of that audit that you performed all of the duties and responsibilities of a Claims Settlement Agent I, as set forth in your job description and position classification. 6. By letter dated November 12, 1985, you were notified that your request for review by the full Commission would he presented to the Commission at a puhlic meeting on November 22, 1985, at the Offices of the State Ethics Commission. 7. On November 22, 1985, the full Commission reviewed your appeal of the advice of counsel . Neither you nor any representative on your behalf appeared at this public meeting. On November 22, 1985, after a review of your job description, position specification, desk audit and other relevant information, the Commission affirmed the previously issued advice of counsel and determined that you were a puhlic employee as defined in the State Ethics Act and thereby required to file a Statement of Financial Interests. The Commission further noted that your appeal of the advice of counsel was filed beyond the fifteen day appeal period and is, therefore, not timely filed. 8. On December 12, 1985, the Commission received a letter dated December 7, 1985 from you requesting that the Commission reconsider its opinion of November 22, 1985. The basis of this request is as follows: a. The filing requirement is an invasion of privacy. b. Other individuals employed by the Commonwealth of Pennsylvania are not requi red to file Statements of Fi nanci al Interests and, therefore, you should also be excluded from such filing. 9. Your appeal was set forth in a one -page letter and no other statements, evidence or information was provided with that letter. 10. On January 17, 1986, you were notified by a letter that the Commission would review your request for reconsideration at a puhlic meeting to he held on February 18, 1986. lir. Joseph T. Lynn Page 3 11. On Fehruary 18, 1986, the Commission reviewed your •request for reconsideration. You were not present at this time. 12. No additional information was presented to the State Ethics Commission in support of your requests for reconsideration. III. fliscussion: We have been asked to reconsider our opinion in this matter, No. 85 -02.4. Generally, reconsideration is governed by the rules and regulations of the State Ethics Commission which provide as follows: 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. This Commission has, on previous occasions, determined that the circumstances under which reconsideration should be granted are limited. Generally, granting of reconsideration or rehearing is within the sound discretion of the reviewing body and is generally granted to afford an opportunity to induce testimony or evidence not offered at the original proceeding because it was not available. Douglas v. W.C.A.R., 32 Pa. Commw. 156, 377 A.2d 1300 (1977). Rehearing should not and will not be allowed solely for the purpose in strengthening a weak case would prove or for the purpose of rehearing testimony which may be cumulative. Pennsylvania Glass - Sand Corporation v. W.C.A.R., 46 Pa. Comm. 377, 407 A.2d 76 (1979). We have, by opinion, adopted these generally accepted standards as applicable to the State Ethics Commission. Reconsideration is properly granted where an administrative agency has misapplied appropriate law or has misunderstood relevant facts. See Coyle, 83 -002; Pennsylvania Public Utility Commisssion, Keener- Farley, 84- 005 -R; Pennsylvania State Association of Township Supervisors, Krane, 84- 001 -R. Pennsylvania State Association of Township Supervisors v. State Ethics Commission, Pa. Comm. 499 A.2d 735, (1985). In the instant situation, we were provided with a sufficient amount of material both during the advice of counsel phase and th'• original opinion review phase which was an appeal of that advice. Generally, at all points in time during this process, the same information and arguments were presented to and reviewed by this Commission. No new arguments or information was presented to the Commission at either the original opinion review or during this phase of the review where reconsideration has been requested. Our t1r. iloseph T. Lynn Page 4 original review of this instant situation, clearly sets forth that the issues presented hy you and your appeal of the advice of counsel and in this request for reconsideration, have been specifically addressed hy the Commission on numerous occasions. See Phillips v. State Ethics Commission, 74 Pa. Comm. 491 470 A. 2d 65Q, (1984); Silver, 85 -012; Phillips, S2 -008, (Claim Settlement Agent I is a public employee as defined hy the State Ethics Act thereby required to file a Statement of Financial Interests). Indeed, we have applied the exact law as set forth by the Commonwealth Court of Pennsylvania in the Phillips case supra. You have advanced the same exact arguments as did the petitioners in that particular matter. This, it is clear to this Commission, that we have not misunderstood the facts as presented and that we have not misapplied the law as it is set forth. Additionally, we have followed prior court precedent in regard to your issue of whether the filing requirement is an invasion of privacy. This issue has heen addressed and dismissed by the Supreme Court and Commonwealth Court's of Pennsylvania. Pennsylvania State Association of Township Supervisors v. Thornburgh, 45 Pa. Commw. 361, 405 A.2d 614, (19/9); Affirmed, 496 Pa. 324, 437 A.2d 1 (1981). As can he seen from the above, we have clearly applied the law as set forth in prior judicial precedent. Thus, we do not helieve that you have presented sufficient cause within the applicahle standards for this Commission to grant your request for reconsideration. We are convinced that we have not misapplied the law or prior court rulings. To the contrary, it is our belief that we have applied the controlling judicial and statutory authority. - Your main assertion, as we understood your reconsideration request, was that if one state employee must by law fill out a Statement of Financial Interests form, then all state employees regardless of pay range, rank or job skill should be requi red to fill out the same statement. This, however, is exactly contrary to the requirements of the State Ethics Act. That Act sets forth that certain classifications and only certain classifications of employees are required to file such a statement. This statutory classification has been held constitutional by the Court's of this Commonwealth on many occasions. Thus, we do not believe that you have presented any new theory of law which this Commission should now consider. Finally, we note that in addition to the foregoing, a request for reconsideration must he received by the State Ethics Commission within fifteen days of service of the opinion. Service is defined in the State Ethics Act as mailing. The original opinion, 85 -024 was served to you on November 22, 1985. Your request for reconsideration was dated on necember 7, 1985 and received by the Commission on flecember 12, 1985. The Commission's receipt of this request was, therefore, twenty days after the original opinion had been issued and, therefore, your request for reconsideration was not timely filed. See netz v. Pennsylvania name Commission, Pa. Commw. 475 A.2d 1369 (1984). Mr, Joseph T. Lynn Page 5 IV. Conclusion: The request for reconsideration is denied in that you have presented no information or arguments to indicate that this Commission has misapplied controlling statutory and judicial authority or has otherwise not understood material and relevant factual information. Additionally, your request for reconsideration was not timely filed. You must file a Statement of Financial Interests with the State Ethics Commission within 15 days of the date of this opinion. JJC /sfb Ry the Commission, HERR• ".RT R. CONNER Chairman