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HomeMy WebLinkAbout90-016-R MitchellDear Mr. Mitchell: I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley Daneen E. Reese DATE DECIDED: August 16, 1990 DATE MAILED: August 24, 1990 Mr. William A. Mitchell 90 -016 -R Mitchell & Mitchell 148 North Main Street Washington, PA 15301 Re: Reconsideration, Minor, Opinion 90 -016, Borough, Public Employee, Borough Manager, Prospective Employment, Assumption or Acceptance of Public Employment, Severance Payment from Borough, Timeliness. This responds to your letter of July 20, 1990 in which you request reconsideration of Minor, Opinion 90 -016 issued July 9, 1990. Whether a prospective borough manager may under the Public Official and Employee Ethics Law accept such position with a bargained for compensation which would include a severance payment from the borough to the manager upon termination of service. II. Factual Basis for Determination: By letter of May 30, 1990, Stephen Minor, as a borough solicitor, Trequested-an ° - based 'upon "certain proffered_vfacts °In thereto, we issued Minor, Opinion 90 -016, on July 9, 1990, wherein we determined that Section 3(e)(1) of the Public Official and Employee Ethics Law does not prohibit a prospective borough manager from accepting such position where the bargained for compensation includes a severance payment payable upon a satisfactory completion of service. By letter dated July 20, 1990, on behalf of certain concerned citizens and taxpayers, you seek reconsideration of Minor, Opinion, supra. The envelope containing your letter has a U.S. postal mark date of July 23, 1990. Your letter was not received at this Mr. William A. Mitchell Page 2 Commission until July 27, 1990. In your letter you raise the following arguments with respect to the reconsideration of Minor: (1) the prospective borough manager's acceptance of employment was contingent upon his receiving a written contract including moving expenses, severance pay, etc. (2) Prior managers' employment was never by written contract, but rather comported with the Borough Salary Ordinance, the Borough Manager Ordinance and Borough Code. (3) Section I1(a) of the proposed agreement stated: "As an inducement to Employee for him to become Manager,..." The final agreement omitted the "inducement" language and read, "It is understood and agreed that the employee shall receive ten (10) days of vacation leave..." (4) Payment of moving expenses is a "gift or inducement" for entering into employment since it is not specifically authorized under Borough Code. (5) Section 4 of the agreement sets forth the provisions of the promise to pay severance, yet such pay is not specifically authorized by the Borough Code. The two year term and severance payment conflict with the "at will" status of the manager under Borough Code. (6) Under the Public Employee Relations Act the borough manager does not have the right to bargain for an employment agreement with respect to wages, hours and other terms of employment. (7) Borough manager has always been a member of the Borough Labor Contract Negotiating Committee. Since he will receive some of the same benefits which members of the Street, Maintenance and Custodial Department receive, there would be an actual or apparent conflict of interest. (8) Borough Council by a 6 to 3 vote approved the contract as presented to them by the prospective borough manager. You conclude by inquiring as to whether there is a violation of Section 3(b) or 3(e) or any other section of the Ethics Law in this case. III. Discussion: Mr. William A. Mitchell Page 3 Preliminarily, the only issue before us which may be addressed in this forum is your reconsideration request. Issues of whether past action by a public official /employee constitutes a violation of the Ethics Law are not subject to review in an advisory opinion. In order for this Commission to consider the substance of your request for reconsideration of Minor, supra, it was necessary for you to file such in a timely fashion. Regulation 2.15 of the State Ethics Commission provides: 52.15 Reconsideration of Opinions. Any person may request within 15 days 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. Necessary to our determination is the computation of the fifteen (15) day reconsideration period. It is undisputable that the reconsideration period begins to run from the time of mailing of the original opinion from the Commission to the time of actual receipt by the agency of the request for reconsideration. The Regulations which govern the practice and procedure of Commonwealth administrative agencies provide in pertinent part: 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 aaencv and not the date of deposit in the mails is determinative. (Emphasis added). 1 Pa. Code S31.11. Finally, Minor, supra, contains the following language regarding reconsideration request: Mr. William A. Mitchell Page 4 Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. It is clear that the time period for a request for reconsideration commenced from the date of issuance (mailing), which in this instance was July 9, 1990. To be timely, therefore, your request should have been received by this Commission within fifteen (15) days, which would have been on July 24, 1990. Your letter of request dated July 20, 1990 was received by this Commission on July 27, 1990, three days beyond the foregoing deadline. Although the time differential between the date of your letter and the date of receipt at this Commission might seem disparate, such is not the case when one considers that the U.S. Postal Mark on the envelope of your letter shows a date of July 23, 1990. Thus, your letter was mailed the day before the filing deadline and was not received until three days after the deadline. In light of the above, your request is untimely and must be denied. IV. Conclusion: Reconsideration of Minor, Opinion 90 -016, is denied as being untimely requested. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. such. This letter is a public record and will be made available as By th Commission elena G. Hughe hair Commissioner James M. Howley dissents.