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HomeMy WebLinkAbout88-007-R MarkelMr. Merwyn R. Markel 3000 Swallow Hill Road Suite 427 Pittsburgh, PA 15220 Dear Mr. Markel: I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DATE DECIDED: February 22, 1989 DATE MAILED: March 7, 1989 Re: Statement of Financial Interests; Public Employee, Human Relations Representative II; Reconsideration of Markel, Opinion, 88 -007 88 -007 -R This responds to your request for reconsideration of State Ethics Commission Opinion 88 -007, by letter of September 23, 1988. Whether the Opinion of the State Ethics Act issued on September 13, 1988 (88 -007) should be reconsidered. II. Factual Basis for Determination: The instant matter arose from your challenge to the requirement that you file a Financial Interest Statement in your position as a Human Relations Representative II (HRRII) with the Pennsylvania Human Relations Commission (HRC). Your letter was treated as a request for advice and an Advice of Counsel No. 88 -570 was issued on May 26, 1988. By letter of June 13, 1988 you appealed the above advice which determined that you were a public employee required to file the Statement of Financial Interests. You were advised by letter of June 22, 1988 that your appeal would go before this Commission and the foregoing was followed by a letter of July 19, 1988 advising of the date, time and location of the public meeting which was scheduled on August 18, 1988 wherein you could attend to present any materials or argument relevant to the issue. Mr. Merwyn R. Markel Page 2 On August 18, 1988, the State Ethics Commission reviewed the issue at a public meeting and determined that you as a HRRII in HRC are a public employee required to file a Financial Interest Statement. Neither you nor any representative on your behalf appeared at that meeting. The Commission's decision was finalized in a written Opinion 88 -007 issued on September 13, 1988. On September 27, 1988, this Commission received your letter requesting reconsideration of Opinion 88 -007 wherein you argue as follows: 1. Material changes have occurred in your employment in that you no longer handle complaints which other HRR's have been unable to resolve; you do not employ legal /medical expertise, draft subpoenas or advise other investigators; 2 r- ,,. ^ �°o ? nt l l . _ _ .r ^. CP (+ f f i i7e or - you t;LLoeb; 1 £ 777eworker because 3. It is error to assume the correctness of the classification specifications for HRRII; 4. Your duties are primarily in office under close on site supervision with limited field activity; 5. Your position is dissimilar to a Claims Settlement Agent I in Phillips v. State Ethics Commission, 79 Pa. Commw. Ct. 491, 470 A.2d 659 (1984) and 6. Your rights under the Administrative Procedures Act, 2 P.S. 504, have been violated if the public meeting was a hearing. Hearing on the reconsideration request was conducted on December 6, 1988. You received notice of the time, date and place of the public meeting by letter dated November 8, 1988. Neither you nor any representative on your behalf appeared. II. Discussion: Reconsideration of Markel, Opinion 88 -007 has been requested. Generally, the issues to be considered, in reviewing a request for reconsideration of the type presented herein, are limited. The discretion of an administrative agency in granting or denying reconsideration is broad and if exercised in a sound manner will be sustained. See, Krane, Opinion 84- 001 -R. Reconsideration of an agency decision 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. Workmen's Compensation Appeal Board, 32 Pa. Commw. Ct. 156, 377 A.2d 1300, (1977). Re- hearing is generally not granted solely for the purpose of Mr. Merwyn R. Markel Page 3 strengthening a weak case or for the purpose of hearing testimony which may be cumulative. See, Pennsylvania Glass /Sand Corporation v. Workmen's Compensation Appeal Board, 46 Pa. Commw. Ct. 377, 407 A.2d 76, (1979). These well established provisions of law have specifically been adopted by the Pennsylvania State Ethics Commission in reviewing requests for reconsideration of an opinion. See, Coyle, Opinion 83 -002; P.U.C. /Keener - Farley, Opinion 84- 005 -R. In the instant matter, you have offered argument regarding issues that have already been considered and rejected by this Commission. As to your concern that your job description is almost seven years old and that you basically perform less functions than are stated, it was noted in Opinion 88 -007 that this Commission considers the job itself (classification specification) rather than the variety that might occur as to any one individual in that position. The foregoing precept has peen upheld by Commonwealth Court in Phillips, supra. As to your assertion that you are a police officer or welfare caseworker because you investigate cases, such a claim has no basis since you are a HRRII in the HRC. Likewise, it is not the prerogative of this Commission to challenge the existing parameters of the classification specification for a HRRII. Turning to your fourth challenge, the time division between your office and field activity is not material since Commonwealth Court has upheld the right of this Commission to apply the objective test to determine whether you are a public employee under the Ethics Act. Phillips, supra. As to the Phillips case, this Commission did not assert that your position was the same as the Claims Settlement Agent I. Concerning your final claim that your rights have been violated under the Administrative Procedures Act, it is sufficient to note that you were given notice and an opportunity to be heard at both the prior and the instant public meeting. The fact that you did not attend the public meeting because you were "afraid to travel great distances - -- risking [your] life on the turnpike and unfamiliar roads - - -" presents no basis for invalidating the public meeting of this Commission wherein a determination was made in this case. You have presented nothing which would justify reconsideration. IV. Conclusion: The request for reconsideration of Opinion 88 -007 is denied. Mr. Merwyn R. Markel 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 evidence of the advice given. such. This letter is a public record and will be made available as By the Commission, Joseph W. Marshall, III Chairman