Loading...
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