HomeMy WebLinkAbout88-009 LeonardMr. Keith W. Leonard
2234 Big Road
Gilbertsville, PA 19525
Dear Mr. Leonard:
I. Issue:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
DATE DECIDED: 9/28/88
DATE MAILED: 10/13/88
88 -009
Re: Conflict of Interest, Township Supervisor, Proposed
Landfill, Supervisor's Residence Adjacent to Landfill;
Supervisor as Member of a Citizens' Group Filing Lawsuit;
Appeal of Advice of Counsel; Timeliness
This responds to your appeal of the Advice of Counsel, No. 88 -565
issued on May 26, 1988.
Whether under the Ethics Act a second class township supervisor
may participate or vote in matters relating to a proposed landfill
when the supervisor is a member of a citizens group which is in
litigation as to an existing incinerator on the site of the proposed
landfill and when the township supervisor's residence is almost
adjacent to the proposed landfill.
II. Factual Basis for Determination:
By letter of March 8, 1988 you requested advice of the State
Ethics Commission as to whether you, a Supervisor in New Hanover
Township, Montgomery County, could vote or participate on a matter of
a landfill when you are part of a citizens group in litigation against
the operation of an existing incinerator which is located on the site
of the proposed landfill and when your personal residence is almost
adjacent to the proposed landfill. Pursuant to your letter of
request, you were advised that under Sections 3(a) and 3(d) of the
Ethics Act you could not participate or vote in a matter concerning
the proposed landfill. Although the Advice of Counsel 88 -565 was
issued on May 26, 1988, your appeal of that Advice by letter of June
10, 1988 was not received by the Commission until June 13, 1988.
Mr. Keith W. Leonard
Page 2
In your original request, you stated that your residence is
almost adjacent to the proposed landfill and that signs have been
displayed by you and others in the community indicating displeasure
with regard to the proposed landfill. Additionally, you advised that
you joined a citizens group which was opposed to the location of this
particular site because of its proximity to schools, the well water
for the surrounding residences and its wetlands. You advised that the
citizens group filed a lawsuit against the operation of the existing
incinerator because of smoke and other factors. You further stated
that one of your campaign issues was based upon your opposition to the
proposed landfill and that there was a record turnout by the
electorate wherein 70% supported your position. You then noted that
the previous board of supervisors also opposed the landfill. After
stating that the legal counsel for the landfill owner suggested that
you recuse yourself because of your involvement with the citizens
group in the incinerator lawsuit, you expressed your view that you
were elected by the people because you would be aggressive and oppose
the landfill. You stated that your personal interest agrees with the
vast majority of the voters and that a conflict of interest would not
exist because you do not own any other land. Lastly, you advise that
your income would not be affected by your action and that there are no
"social /political contracts" involved.
In appealing the Advice of Counsel, you raise two major points in
your appeal: first, you assert that you have been misunderstood
regarding the information supplied as to the citizens lawsuit against
the incinerator. You state that you are but one member of the class
of individuals who have started this action and that you do not seek
any financial damages or penalties; further, you state the action was
instituted to insure compliance with DER regulations whereby the
incinerator would be required to be operated within the limitations of
its own permit. After advising that you are not seeking to terminate
its operation or to obtain a recovery of any financial gain, you
state that you do not believe there is any financial consequence of
any nature affecting you because of your involvement in the lawsuit.
The second matter you raise concerns the proposed landfill. You
state the Advice of Counsel limits your action as to the landfill
because of the landfill's proximity to your own personal residence but
you believe that any action you take as a township supervisor could
indirectly impact upon the value of your property. You cite examples
of discussions or votes relative to a revision of comprehensive plans,
zoning ordinances, building codes, etc. within the township which
would have an effect upon the value of your property. You assert that
such a broad interpretation of the Ethics Act would preclude a second
class township supervisor from voting on any ordinance or resolution
throughout the Commonwealth of Pennsylvania. You concluded your
appeal by requesting the Commission to receive documentation which
Mr. Keith W. Leonard
Page 3
would be submitted by the township solicitor and an attorney who is
involved in the incinerator lawsuit. A letter of September 21, 1988
from the Solicitor of New Hanover Township was received by the State
Ethics Commission.
Lastly, you were advised of the date, time and location of this
public meeting of the Commission by letter of September 18, 1988.
III. Discussion:
In order for this Commission to consider your request for a
review of the Advice of Counsel, it is necessary for you to have
timely appealed the Advice.
Regulations 2.12 of the State Ethics Commission, which was
specifically referenced in the last paragraph of the Advice,
provides:
S2.12 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. It is clear 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 of the appeal at the agency.
The Regulations which set forth the practice and procedure
before Commonwealth administrative agencies provide:
In computing a period of time involving the
date of the issuance of an order by an agency, the
day of issuance of an order shall be the day the
office of the agency mails or delivers copies of
the order to the parties... 1 Pa. Code §31.13(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 S31.11.
Mr. Keith W. Leonard
Page 4
From the above, it is clear that the time period for an appeal
began to run from the date of mailing, which in this case was May 26,
1988. Therefore, to be timely, the appeal should have been received
by the State Ethics Commission no later than (15) days after service,
which would be on June 10, 1988. However, the appeal was received by
this Commission on June 13, 1988, which was three days beyond the
filing deadline.
Therefore, under the Regulations cited above and the Regulations
of the State Ethics Commission, the appeal was clearly untimely and
may not be considered by the Commission.
The issue of the timeliness of an appeal before an
administrative agency has been considered by the courts on 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 so by upholding
that agency's computation of the filing requirement by utilizing the
period from date of mailing to date of receipt at the agency. See
also Getz v. Pennsylvania Game Commission, 83 Pa. Commw. Ct. 59,
A.2d (1984).
Since your appeal was received beyond the fifteen day appeal
period, it is untimely. Lynn, Opinion 85 -024; Smith, Opinion 85 -015;
Rovito, Opinion 88 -003.
IV. Conclusion:
Your appeal from the Advice of Counsel is dismissed as being
untimely filed.
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
Mr. Keith W. Leonard
Page 5
Finally, 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.
4 C mts
j=5ii W. Marshall,
Chairman