Loading...
HomeMy WebLinkAbout93-003 ConfidentialI. ISSUES: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger Joseph W. Marshall, III DATE DECIDED: June 28, 1993 DATE MAILED: July 7, 1993 93 -003 Re: Conflict, Public Official /Employee, Municipal Authority Member, Reimbursement for Lost Wages, Governing Body, Appeal of Advice, Timeliness. This responds to your letter of February 1, 1993, in which you appeal Confidential Advice of Counsel No. 93 -507 issued January 15, 1993. A. Timeliness of appeal of Advice. B. Whether a municipal authority board member under the Public Official and Employee Ethics Law may receive reimbursements or payments from the authority arising from lost wages in private employment which resulted from the performance of duties for the authority. II. FACTUAL BASIS FOR DETERMINATION: A chronology of the events in this case is important and is as follows: 1. December 16, 1992 - State Ethics Commission received request for a confidential advisory from authority board members dated December 9, 1992. Confidential Opinion 93 -003 July 7, 1993 Page 2 2. December 23, 1992 - State Ethics Commission acknowledged receipt of the above letter and docketed the matter as a confidential Advice of Counsel. 3. January 15, 1993 - Confidential Advice 93 -507 issued and mailed to authority board members. 4. February 8, 1993 - State Ethics Commission received letter dated February 1, 1993 appealing Confidential Advice No. 93- 507. III. APPLICABLE LAW: The law to be applied to this question is as follows: Regulations of the State Ethics Commission: 52.12. Appeal from an advice. (a) Any person who requested an opinion or advice and who is dissatisfied with an advice given may appeal to the full Commission for review. (b) Any such appeal shall be made, in writing, to the Commission within 15 days of service of the advice. The Regulations .which govern the practice and 'procedure ..`o Commonwealth administrative agencies provide in pertinent part: In computing a period of time involving the date of 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 531.13(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 Confidential Opinion 93 -003 July 7, 1993 Page 3 of receipt at the office of the Agency and not the date of deposit in thg mails is determinative. 1 Pa. Code §31.11 (Emphasis added). IV. DISCUSSION: In order for this Commission to consider the substance of your appeal of advice, it was necessary for you to file such in a timely fashion. Necessary to our determination is the computation of the fifteen (15) day reconsideration period. It is undisputable that the appeal period begins to run from the time of mailing of the original Advice of Counsel from the Commission to the time of actual receipt by the agency of the appeal of that Advice. 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 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 Advice of Counsel was mailed on January 15, 1993. Your appeal was dated February 1, 1993. That request, however, was not received in the office of the State Ethics Commission until February 8, 1993. The fifteen (15) day period during which the appeal was required to be made terminated on January 30, 1993. The appeal, therefore, was filed nine (9) days after the time period had expired. This Commission, in the past, has determined the filing requirements regarding a request for reconsideration or appeal 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; Cowie, Opinion 88- 010 -R; Minor, Opinion 90- 016 -R. Parenthetically, we do note that the envelope transmitting your appeal of Advice has a date stamp of the United State Postal Confidential Opinion 93 -003 July 7, 1993 Page 4 Service dated February 1, 1993, in Pittsburgh, Pennsylvania. Even assuming that Monday, February 1, 1993, rather than Saturday, January 30, 1993, was the last day for filing your appeal, it is clear that your appeal was in postal transit and not at this Commission on February 1, 1993. Thus, the time stamped envelope factually establishes the untimeliness of the appeal. See, Borland v. State Ethics Commission, Memorandum Opinion of Commonwealth Court filed at 2599 C.D. 1987 on September 22, 1988. It is clear that your appeal is untimely and must be dismissed. V. CONCLUSION: The appeal of Advice of Counsel 93 -507 is dismissed as untimely filed. 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 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, oiV James M. Howl Chair