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HomeMy WebLinkAbout87-007-R YeomansJohn E. Yeomans, Esquire Delaware River Port Authority of Pennsylvania and New Jersey Bridge Plaza Camden, New Jersey 08101 Dear Mr. Yeomans: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DATE DECIDED: 4 -8 -88 DATE MAILED: 4 -21 -88 87 -007 -R Re: Reconsideration Request, DRPA, Kopp, Opinion 87 -007, Timeliness, Standing This responds to your request for reconsideration of State Ethics Commission Opinion 87 -007, which was decided by the Commission on December 14, 1987 and issued on December 22, 1987. I. Issue: You have asked us to reconsider our Opinion in Kopp, 87 -007. II. Factual Basis for Determination: A chronology of the events in this case is important and is as follows: 1. September 29, 1987 - State Ethics Commission received request for advice from Charles G. Kopp, hereinafter Kopp. 2. October 8, 1987 - State Ethics Commission acknowledged receipt of the above letter. 3. November 24, 1987 - Kopp was advised by letter that the State Ethics Commission would consider his request at the meeting of December 14, 1987. 4. November 24, 1987 - Sunshine notice mailed by staff of State Ethics Commission. 5. December 14, 1987 - No appearance by Kopp or any other person at the State Ethics Commission meeting; State Ethics Commission reviews and rules on request. John E. Yeomans, Esquire Page 2 6. December 22, 1987 - Opinion, 87 -007 issued and rmiled to Kopp. 7. December 23, 1987 - Staff of State Ethics Commission mails a copy of Kopp, Opinion, 87 -007 to John E. Yeomans, Esquire of the Delaware River Port Authority hereinafter DRPA. 8.. January 12, 1988 - State Ethics Commission received letter or John E. Yeomans, Esquire of DRPA dated January 11, 1988, requesting reconsideration of the Kopp, Opinion, 87 -007. 9. January 13, 1988 - State Ethics Commission acknowledge(' receipt of item No. 8 above. I11. Applicable Law: a : 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)(1) 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). John E. Yeomans, Esquire Page 3 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 proceedi ng 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 i nterest. (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,, John E. Yeomans, Esquire Page 4 0 Filing of petitions to intervene. Petitions to intervene and notices of i nterventi li may he 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 th3 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 tc;t -- 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. 135.31. 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 w i l l 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. John E. Yeomans, Esquire Page 5 IV . Discussion: We have been asked to reconsider our Opinion in Kopp, 87 -007 by the General Counsel of the DRPA. As this Commission stated in Cowie, Opinion 84 -010, the circumstances under which reconsideration should be granted are limited. See also Coyle, Opinion 83 -002. All the criteria discussed in those cases will not be repeated here. It is sufficient to state that the discretion of this Commission in granting reconsideration is broad and if exercised in a sound manner w i l l be sustained. See PSATS v. State Ethics Commission, Pa. Commw. Ct. , 499 A.2d 735 (1985 . The DRPA had sufficient notice of and ample opportunity to participate in the Kopp 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 DRPA apparently chose not to officially involve itself in these proceedings until the presentation of this reconsideration request. Further, the DRPA has not moved to intervene in this case but has merely requested reconsideration without a request for intervention. Therefore, since there is no Petition for Intervention and a grant of intervention by this Commission, you have no standing to ask for reconsideration. Cowie, Opinion 84- 010 -R. Even assuming arguendo that you were properly before this Commission, the entry into these proceedings by the DRPA is late since the reconsideration request was filed beyond the fifteen (15) day period for reconsideration. In this respect, a review of the relevant timing of events is important. Kopp, Opinion 87 -007, was decided on December 14, 1987 and mailed on December 22, 1987. Parenthetically, although not a controlling date, the Opinion was sent personally to you by staff of the State Ethics Commission by letter of December 23, 1987. The fifteen (15) day period during which a request for reconsideration must be made is determined from the date of issuance, December 22, 1987. Thus, any request for reconsideration would have had to be forwarded and received by the Commission within fifteen (15) days of December 22, 1987. It is clear that in computing any period of time regarding requests for appeal or reconsideration by an administrative agency, the day of issuance (defined as mailing) is the date from which the time period is determined. Additionally, the date at which time such a request or appeal is considered filed is the date of receipt at the office of the agency and not the date of deposit in the mail. See Getz v. Pennsylvania Game Commission, 83 Pa. Commw. Ct. 59, 475 A.2d 1369 (1984). These time requirements are mandatory and absent fraud or negligent conduct by the administrative agency, such timing requirements may not be extended. See Dilenno v. Unemployment Compensation Board of Review, 59 Pa. Commw. Ct. 496, 429 A.2d 1288, (1981 ; Mayer v. Unemployment Compensation Board of Review, 27 Pa. Commw. Ct. 44, 366 A.2d 665, (1976). John E. Yeomans, Esqui re Page 6 As noted previously, the Opinion of this Commission was mailed on December 22, 1987. The request for reconsideration which was made on behalf of DRPA by you as General Counsel was dated January 11, 1988. That request, however, was not received in the office of the State Ethics Commission until January 12, 1988, at 9:51 a.m. The fifteen (15) day period during which the request for reconsideration was required to be made terminated on January 5, 1988. The request for reconsideration, therefore, was filed seven (7) days after the time period had expired. Parenthetically, it should be noted that even if December 23, 1987 (the date the opinion was mailed to you) were considered as the date of issuance, your request for reconsideration would still not be timely. This Commission, in the past, has determthed the filing requirements regarding a request for reconsideration are mandatory and absent, of course, a showing of fraud or break down in the postal systems, such w i l l not be extended. See Smith, Opinion 85 -015; Silver, Opinion 85 -012. There is an even more fundamental concern in this case regarding the intrusion of the DRPA in this proceeding. Mr. Kopp, as a former member of the DRPA, has not requested reconsideration of Kopp, Opinion 87 -007. Thus, the interjection of the DRPA in this proceeding must fail because the real party in interest has accepted the Opinion by his failure to request reconsideration. This is not to say that some other member of the DRPA would be precluded from seeking an opinion of this Commission as to whether ne would be subject to the Ethics Act; clearly that member could make a request and the DRPA could timely intervene and then both the member requesting the opinion and the DRPA could assert their respective or collective interests. In short, this Commission has an established process whereby an individual can request an opinion of this Commission; further, a timely petition to intervene may be filed as to that opinion request. That did not occur in the instant matter: Mr. Kopp asked for an opinion and this Commission made a decision which answered Mr. Kopp's question. Mr. Kopp did not ask for reconsideration and the matter is final. Therefore, the request of the DRPA, a bi -state compact seeking reconsideration of Kopp, Opinion 87 -007 is denied on the ground that the DRPA is not properly before the Commission. V. Conclusion: The request of the DRPA to reconsider Kopp, Opinion 87 -007 is Denied. By the Commission, cc: Charles G. Kopp, Esquire G. Sieber Pancoast Chairman