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HomeMy WebLinkAbout92-002 ReedDear Mr. Reed: I. ISSUE: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DATE DECIDED June 24, 1992 DATE MAILED June 29, 1992 Gregory R. Reed, Esquire 92 -002 2423 North Third Street Harrisburg, PA 17110 Re: Conflict; Public Official /Employee; Township Supervisor; Private Contractor; Excavation, Installation and Repair of On- lot Sewage Systems Subject to Review by Sewage Enforcement Officer, Appeal of Advice of Counsel, Timeliness of Appeal. This responds to your appeal of Advice of Counsel 92 -556 issued on March 6, 1992. Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a second class township supervisor who as a private contractor participates in the excavation, installation and repair of on -lot sewage systems which are reviewed by the sewage enforcement officer employed by the township board of supervisors. II. FACTUAL BASIS FOR DETERMINATION: By letter dated February 4, 1992, the Solicitor of Londonderry Township requested an advisory as to whether Paul M. Geyer, as a Township Supervisor, had a conflict regarding his private contracting as to sewage systems in the Township which had to be approved by the Sewage Enforcement Officer (SEO). Pursuant to the letter of request, an Advice of Counsel was issued on March 6, 1992, which advised that Mr. Geyer, under Section 3(a) of Act 9 of 1989, had a conflict relative to matters involving the SEO and matters involving Mr. Geyer or his private business clients. An appeal of the above Advice dated April 1, 1992 was received at the Commission on April 3, 1992. In the appeal of Advice, it is acknowledged that the time for appealing the Advice had expired but it is requested that the appeal be allowed to "supercede." On the substantive issue, it is asserted that a DER decision on the same issue was improper and that Mr. Geyer is willing to abstain on all activities directly related to his private business of contracting for sewage system work. By letter dated May 27, 1992, Notice was sent advising of the time, date and location of the hearing of this matter at a public meeting of this Commission. III. DISCUSSION: In order for this Commission to consider your request for a review of Advice of Counsel, it was necessary for you to timely appeal the Advice. Regulation 2.12 of the State Ethics Commission, which was specifically referenced in the last paragraph of the Advice, provides: 52.12. 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 S2.12(b). The question now arises as to the computation of the fifteen (15) day appeal period. There is no question 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 by the agency. The Regulation which sets forth the practice and procedure before Commonwealth administrative agencies provides: 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. �lig date of receipt at the office of the aaencv anck not the date of deposit in the mails is determinative. 1 Pa. Code 531.11 (Emphasis added). 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 March 6, 1992. Therefore, to be timely, the appeal would have to have been received by this Commission fifteen (15) days after service, which would be on March 23, 1992. However, the appeal was received on April 3, 1992, which was eleven days beyond the foregoing deadline Therefore, under the Regulations cited above and the Regulations of this Commission, the appeal was clearly untimely and can not be considered. gm Rovito, Opinion 88 -003. 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, 492 A.2d 1202 (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, 475 A.2d 1369 (1984). Since your appeal was received beyond the fifteen day appeal period, it is untimely. Lynn, Opinion 85 -024; Smith,, 85 -015. You, however, argue that your appeal of Advice should "supersede" because Mr. Geyer consulted with you on this matter on March 26, 1992, which was after the fifteen day appeal period. It is conceded that the appeal is late but should nevertheless be heard under the spirit of the Ethics Law. You have not argued that there was any breakdown in the mail operations nor proffered any reason why Mr. Geyer waited for an inordinate period of time after the appeal period expired before consulting you. We must also note that the Advice of Counsel was not sent to Mr. Geyer but to the township solicitor who asked for the advisory on behalf of Mr. Geyer. Secondly, the Advice of Counsel specifically contained the standard language advising of the right to appeal and the time limitation for filing an appeal. Since no circumstances have been presented which provide a basis for extending the filing deadline in this case, we must dismiss the appeal as untimely. IV. CONCLUSION: The appeal from the Advice of Counsel being untimely filed. Pursuant to Section 7(10), the person on this opinion issued to him shall not be civil penalties for so acting provided the stated in the request. such. 92 -556 is dismissed as who acts in good faith subject to criminal or material facts are as This letter is a public record and will be made available as 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. By the Commission, James M. Howl Chair Commission Dennis C. Harrington dissents.