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Home My WebLink About88-003 RovitoVincent V. Rovito, Esquire Four West Independence Street Shamokin, PA 17872 Dear Mr. Rovito: Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DATE DECIDED 6/10/88 DATE MAILED 6/24/88 Re: Former Public Official; Section 3(e), Housing Authority Board, Inspections as an Independent Contractor; Appeal of Advice of Counsel; Timeliness of Appeal This responds to your appeal of the Advice of Counsel (88- 545) issued April 12, 1988. Whether a former housing authority board member may enter into a contract with his former governmental body, consistent with Section 3(e) of the Ethics Act, whereby he, as an independent contractor, would perform housing inspections to determine whether HUD guidelines and eligibility requirements are met. II. Factual Basis for Determination: 88-003 On February 16, 1988, you as solicitor for the Northumberland County Housing Authority (NCHA) requested advice of the State Ethics Commission as to whether Daniel L. Venn, the former Director of NCHA, could enter into a contract with NCHA to perform housing inspections as an independent contractor for NCHA during the one year period after he terminated his employment with NCHA. Pursuant to your letter of request, you were advised that Mr. Venn under Section 3(e) of the Ethics Act could not, for a period of one year after he terminated employment with NCHA, enter into a contract with that governmental body whereby he would perform housing inspections as an independent contractor. On April 28, 1988, you appealed the Advice of Counsel. Vincent V. Rovito Esquire Page 2 Factually, Mr. Venn resigned from the NCHA :i, February 1, 1988 after having served for a number of years. Following his resignation, Mr. Venn contacted NCH:`. ' egardin: performing inspections as an independent contractor. The inspec±ion are utilized to determine whether homes meet HUD requirements. As an independent contractor, Mr. Venn would receive no benefits from the Authority and, hence, would be responsible for his own insurance. It appears that HUD has issued a wa ?.ver to Mr. Venn of one year waiting period under Section 515(a) of the Annual Contributions Contract. If NCHA would have Mr. Venn perform the inspections you state that NCHA would save money since the current cost per inspection for NCHA is $35.00 wherein Mr. Venn could perform the service for $10.00, which would result in a saving :3f $21.00 per inspection for NCHA. After stating that there are approximately 30 unit inspections per month, you project a total monthly saving of $753.00. In your request of February 16, 1988, you ")elieve that :'ction 3(e) of the Ethics Act would not restrict Mr. Venn on the thorL7 that he is merely seeking employment as an independent (.:o•ntr:actor and not representing anyone before NCHA. II . Discussion: In order for this Commission to consider your request for a review of Advice of Counsel, it was necessary for you to timely appeal the Advice. Regulations 2.12 of the State Ethics Commission, which was s ?ecifically referenced in the last paragraph of the Advice, provides: 52.12 Appeal from an advice. (b) Any such appeal shall be made, in writing, to the Commission within 15 days of service of the Advice. 51 Pa. Code §2.12(b). The question now arises as to the computation of the fifteen (15) day appeal period. There is no question that the appeal period begins to run from the time of mailing of the original advice from the agency to the time of the actual receipt the agency of the appeal. The Regulations which set forth the practice and procedure before Commonwealth administrative agencies provide: Vincent V. Rovito, Esquire Page 3 In computing a period of time involving the date of the issuance of an order by an agency, the day Jf issuance c.f an order shall be the day the office ol the agency mails or delivers copies of the order to the parties... 1 Pa. Code S31.13(a) It is further provided in the foregoing Regulations as follows: Pleadings, submittals or other documents required or permitted to be filed under this part, the regulations of the agency or any other provision of law shall be received for filing at the office of the agency within the time limits, if any, for the filing. The date of receipt at the office of the agency and not the date of deposit in the mails is determinative. (Emphasis supplied) 1 Pa Code 531.11. From the above, it is clear that the time period for Y:rz appeal began to run from the date of mailing, which in this c;_.g was April 12, 1988. Therefore, to be timely, the appeal would have to have been received by the State Ethics Commissicn fifteen (15) days after service, which would be on April 2", 1988. However, the appeal was received by this Commission _n April 28, 1988, which was one day beyond the foregoing deadline, Therefore, under the Regulations cited above and t e Regulations of the State Ethics Commission, the appeal ms clearly untimely and can not be considered by the Commission. The issue of the timeliness of an appeal before :n administrative agency has been considered by the courts - n numerous occasions; the courts have upheld both the foregoing manner of computing the time period as well as the mandatory nature of that period in decisional law. In Maldonado v. Pennsylvania Board of Probation and Parole, 89 Pa. Commw. Ct. 576, A.2d (1985), Commonwealth Court specifically affirmed a decision of an administrative agency which denied an untimely reconsideration request and did st. by upholding that agency's computation of the filing requirement by utilizing the period from date of mailing to date of recei, the agency. See also Getz v. Pennsylvania Game Commission, 3' Pa. Commw. Ct. 59, A.2d (1984). V.incen'. V. Puvi t:o, Pags 4 Since your appeal was received ,e - ond fizten day apo e'_ period, it is untimely. Lynn, Opinion 85- 0 Smith, 85 -015. You, however, argue that there may have been a breakdown it the mail operations which would justify this Commiss _on .:. . waiving the fifteen day appeal period. Specifically, yr u po.in c to a brief which you mailed to the Commission which was refur and returned for insufficient postage. First, the issue harr yi is tha timeliness of your appeal and not the mailing of yo, brief, Secondly, the fact that there was insuficient postage for mailing your brief can not be attributed to the Commision. As to the appeal, you acknowledge that you received t t- Advice of Counsel two days after its issuance; fu:_th'r you'• appeal was time stamped by the Commission two days after 1.1.e dFte of your letter of appeal. It is clear that thero e breakdown in the mail process which would justifiy extendil t. t! appeal period. In re Dixon Estate, 443 Pa. 303, 279 (1971); Appeal of Farrell, 69 Pa. Commw. Ct. 32, 450 A.2d 1982) "_astly, you assert that you needed time to obtain apnro% cl to appeal. Even accepting that agreement, a problem still bf;cause you must have had your authorization by the date o :c your letter of appeal. If you sent that letter by overnight el :pre 9s dellver the appeal would have been timely received, However, you chose to send your appeal by regular mail which resulted in an untimely filing. No circumstances have been presented which provide a basis uncle: decisional law for extending the filing deadline in this cas v . :t. Conclusion: ie appeal from the Advice of Counsel is dismiscrd as being untimely filed. Pursuant to Section 7(9)(i), this opinion a defense in any enforcement proceeding initiated Commission, and evidence of good faith conduct in any criminal proceeding, providing the requestor has truthfully all the material facts and committed ;omplained of in reliance of the evidence of the advice such. This letter is a public record and will be r.ade a' , c n dlete the civil or dl sclosecd 1" a acts F? ven . liable as Vinc:en'; V. Rovito, Esquire Page 5 Finally, any person may request within 15 dais 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. By the Commission, Joseph W. Marshall, III Chairman