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HomeMy WebLinkAbout93-003-R ConfidentialI. ISSUE: 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 Joseph W. Marshall, III DATE DECIDED: DATE MAILED: 9/29/93 10/04/93 93 -003 -R Re: Reconsideration, Confidential, Opinion 93 -003, Conflict, Public Official /Employee, Municipal Authority Member, Reimbursement for Lost Wages, Governing Body, Appeal of Advice, Timeliness. This responds to your letter of July 20, 1993 in which you request reconsideration of Confidential Opinion 93 -003 issued July 7, 1993. Whether Confidential Opinion 93 -003 should be reconsidered. II. FACTUAL BASIS FOR DETERMINATION: On July 7, 1993, this Commission issued Confidential Opinion 93 -003 which dismissed an Appeal of Advice of Counsel 93 -507. The appeal from the Advice was filed 9 days after the deadline for filing an appeal. We analyzed the decisional law regarding the issue of timeliness of appeals as to adjudications of administrative agencies and found that time deadlines were mandatory absent a showing of fraud or a break down in the postal system. In this particular case, the appeal from the Advice of Counsel in order to be timely filed had to have been received by the Commission on or before January 30, 1993. Since January 30th fell Confidential Opinion, 93 -003 -R October 4, 1993 Page 2 on a Saturday, and assuming therefore that Monday, February 1, 1993 was the deadline, the appeal would have to have been received by that date. The envelope in which the appeal was transmitted had a date stamp of the U.S. Postal Service in Pittsburgh of February 1, 1993. Since the appeal was in Pittsburgh on the ostensible last day for filing the appeal and not at this Commission, we therefore denied the appeal as being untimely filed, relying upon Borland v. State Ethics Commission, Memorandum Opinion of Commonwealth Court filed at 2599 C.D. 1987. In seeking reconsideration, six arguments are presented: (1) If the appeal were untimely, the Commission waived the defect by requiring the filing of a brief on the merits; (2) The law favors decisions on the merits and not on technicalities; (3) The law does not make the failure to file an appeal within 15 days a fatal defect; (4) Both the authority board members and the citizens of the Commonwealth are entitled to a responsive treatment rather than a harsh application of technicalities; (5) A 15 day appeal is contrary to the normal 30 day appeal period and does not allow attorneys sufficient time to confer to determine whether an appeal should be taken; (6) The authority did not have 15 days as the Advice was received on January 19, 1993 which is less than 15 days from the mailing on February 1, 1993. III. DISCUSSION: For this Commission to consider your request for reconsideration of Confidential Opinion 97 -003, it is necessary for you to meet the criteria for granting reconsideration in order for this Commission to exercise its discretion. Regulation 13.3(d) of the State Ethics Commission provides: Reconsideration may be granted in the discretion of the Commission under §21.29(e). Regulation 21.29(e) of the State Ethics Commission provides: Reconsideration may be granted at the discretion of the Commission if: Confidential Opinion, 93 -003 -R October 4, 1993 Page 3 (1) A material error of law has been made. (2) A material error of fact has been made. (3) New facts or evidence are provided which would lead to reversal of modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. We will now consider seriatim the six arguments made in support of the reconsideration request. The first argument that the Commission waived the defect of the untimely appeal by requiring a brief on the merits is factually and legally erroneous. First, the municipal authority was specifically advised when the appeal was filed that there was a timeliness problem. Second, the notice as to filing briefs is a standard one which gives the party the option to so file prior to the hearing before the Commission. Lastly, the notice did not in anyway delineate that the brief should be on the merits. Thus, a reasonable interpretation from the acknowledgement and briefing notice by the Commission was that a timeliness problem existed which should have been addressed in any brief that might have been filed. As to the second issue regarding the law favoring decisions on the merits over technicalities, although the general precept may be true, it ignores the equally cogent legal principle that deadlines are mandatory. We will not repeat our analysis or restate the various decisions in Confidential Opinion 93 -003 which express that legal principle. Regarding the third argument for reconsideration, that the failure to file within 15 days is not a fatal defect, the case law cited in Confidential Opinion 93 -003 negates such an argument. As to the fourth argument that the authority board members and citizens of the Commonwealth are entitled to a more responsive treatment rather than an application of technicalities, we need only note that this Commission has issued thousands of adjudications to persons who comply with the requirements of the Ethics Law and Regulations relative to satisfying the conditions for requesting advisories. Regarding the fifth argument that the 15 day appeal is contrary to law and the normal 30 day appeal period, we are unaware of any decision which has struck down our 15 day appeal period or a- similar period used by some other administrative agency. Parenthetically, although we do appreciate that time is needed by attorneys to confer and consult with boards as to whether an appeal should be taken, we are also aware that mechanisms now exist such Confidential Opinion, 93 -003 -R October 4, 1993 Page 4 as overnight mail service or fax transmissions which reduce the time for filing an appeal to a day or less. As to the sixth and last argument that there was not 15 days available in which to take an appeal, computed from the time that the Advice was received to the time that it was mailed, such is not the standard for administrative agencies. The decisional law cited in Confidential Opinion 93 -003 establishes that the time limitation for an appeal begins to accrue from mailing from the agency and stops at the time of the receipt of the appeal at the agency. This is true not only in the Regulations of this Commission, 51 Pa. Code 11.1 but also under the General Administrative Agency Regulations, 1 Pa. Code 31.13(a) and 1 Pa. Code Section 31.11. Nothing has been submitted or even argued to establish that a material error of law has been made. Nothing has been submitted or even argued that a material error of fact has been made. No new facts or evidence has been provided. Since nothing has been submitted relative to anyone of the three criteria for the exercise of our discretion in granting reconsideration, your request for reconsideration must be denied. IV. CONCLUSION: Reconsideration of Confidential Opinion 93 -003 is denied. 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 Commisioners James M. Howley, Chair and Daneen E. Reese, Vice Chair dissent. B he Commission, y , ...4.11ou Dennis C. Harrington Commissioner