HomeMy WebLinkAbout88-010-R CowieSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
DATE DECIDED: February 22, 1989
DATE MAILED: March 7, 1989
Mr. Donald W. Cowie 88 -010 -R
Auditor
565 Melander Street
Johnstown, PA 15905
Re: Reconsideration Request, Cowie, Opinion 88 -010, Timeliness
Dear Mr. Cowie:
This responds to your request for reconsideration of State
Ethics Commission Opinion 88 -010, which was decided by the Commission
on December 6, 1988, and issued on December 15, 1988.
I. Issue:
You have requested reconsideration of Cowie, Opinion 88 -010.
II. Factual Basis for Determination:
A chronology of the events in this case is important and is as
follows:
1. September 1, 1988 - State Ethics Commission received request
for an opinion by Cowie.
2. September 9, 1988 - State Ethics Commission acknowledged
receipt of the above letter docketing the matter as an
Advice of Counsel.
3. October 6, 1988 - State Ethics Commission advises that the
request will be treated as an opinion rather than an advice
request.
4. November 8, 1988 - Cowie was advised by letter that the Sate
Ethics Commission would consider his request at the meeting
of December 6, 1988.
Mr. Donald W. Cowie
Page 2
5. December 6, 1988 - No appearance by Cowie or any other
person on his behalf at the State Ethics Commission meeting;
State Ethics Commission reviews and rules on request.
6. December 15, 1988 - Opinion, 88 -010 issued and mailed to
Cowie.
7. January 3, 1989 - Certified letter of Cowie received at
U.S. Post Office in Harrisburg.
8. January 4, 1989 - State Ethics Commission received letter of
Cowie dated December 27, 1988 requesting reconsideration of
Cowie, Opinion 88 -010.
9. January 6, 1989 - State Ethics Commission acknowledged
receipt of item No. 8 above.
10. January 13, 1989 - State Ethics Commission received letter
of Cowie concerning timeliness of reconsideration request.
11. January 17, 1989 - Cowie is advised by letter to forward
photocopy of envelope transmitting-Opinion 88 -010.
12. January 26, 1989 - State Ethics Commission received copy of
log of Harrisburg U.S. Post Office reflecting receipt of
letter of Cowie (requesting reconsideration) on January 3,.
1989.
13. February 1, 1989 - State Ethics Commission received letter
of Cowie advising that the envelope transmitting Opinion
88 -010 was discarded.
III. Applicable Law:
The law to be applied to this question is as follows:
Regulations of the State Ethics Commission:
62.15. 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
S2.15.
Mr. Donald W. Cowie
Page 3
The Ethics Act:
Section 7. Duties of the commission.
9) (i) 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.
RC
II. Discussion:
You have requested this Commission to reconsider Opinion in
Cowie, 88 -010. 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 will be sustained. See PSATS
v. State Ethics Commission, Pa. Commw. Ct. , 499 A.2d 735
(1985).
You had sufficient notice of and ample opportunity to participate
in your request and proceedings which addressed and ruled upon your
request for an advisory opinion. You apparently chose not to
officially involve yourself in these proceedings and now present this
reconsideration request. The request itself 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 events is
important. Cowie, 88 -010, was decided on December 6, 1988 and mailed
on December 15, 1988. The fifteen (15) day period during which a
request for reconsideration must be made is determined from the date
of issuance, December 15, 1988. Thus, any request for reconsideration
would have had to be forwarded and received by the Commission within
fifteen (15) days of December 15, 1988. 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
Mr. Donald W. Cowie
Page 4
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).
As noted previously, the Opinion of this Commission was mailed on
December 15, 1988. Your request for reconsideration was dated
December 27, 1988. That request, however, was not received in the
office of the State Ethics Commission until January 4, 1989 at 9:46
a.m. The fifteen (15) day period during which the request for
reconsideration was required to be made terminated on December 30,
1988. The request for reconsideration, therefore, was filed five (5)
days after the time period had expired. This Commission, in the past,
has determined 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 will not be extended.
See Smith, Opinion 85 -015; Silver, Opinion 85 -012; Rovito, Opinion 88-
003.
You, however, argue that although the Opinion was dated December
15, 1988, it was not postmarked until December 19, 1988. The date of
issuance is the date of mailing. Cowie, Opinion 88 -010 was mailed on
December 15, 1988. In this regard, it is noted that you have
responded to the request of the General Counsel to submit a photocopy
of the postmarked envelope by asserting that you discarded the
postmarked envelope shortly after receipt. You also assert that your
letter requesting reconsideration was received at the Commissions'
post office box on December 29 or 30, 1988. Your claim is erroneous
since a copy of the log for your certified mail has been obtained from
the U.S. Postal Service; that log reflects that your letter was
received at the Harrisburg Post Office on January 3, 1989. Thus, your
reconsideration request was in postal transit on the final day of the
f4_fteen (15) day period and hence not at the Commission. Borland v.
State Ethics Commission, Memorandum Opinion of Commonwealth Court
filed at 2599 C.D. 1987 on September 22, 1988.
Therefore, your request for reconsideration of Cowie, Opinion 88-
010 is denied on the ground that it is untimely.
Mr. Donald W. Cowie
Page 5
IV. Conclusion:
such.
The request to reconsider Cowie, Opinion 88 -010 is Denied.
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.
This letter is a public record and will be made available as
By the Commission,
e
Joseph W. Marshall, III
Chairman