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HomeMy WebLinkAbout00-001 CarnesOPINION OF THE COMMISSION Christopher P. Carnes 2 Sandy Lane Malvern, PA 19355 Dear Mr. Carnes: I. ISSUE: Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Julius Uehlein Louis W. Fryman John J. Bolger Frank M. Brown Susan Mosites Bicket DATE DECIDED: 4/13/2000 DATE MAILED: 4/28/2000 00 -001 Re: Former Public Employee; Section 1103(g); Bridge Design Engineer; Civil Engineer; Engineering District 6 -0; PennDOT; Consulting Engineering Firm; Senior Structural Engineer; Timeliness; Appeal; Advice of Counsel. This Opinion is issued in response to the appeal of Advice of Counsel, 99 -645, which was issued on December 23, 1999. Whether the Public Official and Employee Ethics Act presents any restrictions upon the employment of a bridge design engineer following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). II. FACTUAL BASIS FOR DETERMINATION: By letter dated February 17, 2000, you appealed Advice of Counsel, 99 -645, issued on December 23, 1999. In your initial letter requesting an advisory, you presented the following facts. As an employee of PennDOT, you are a Bridge Design Engineer classified as a Civil Engineer of Engineering District 6 -0, in St. Davids, Pennsylvania. Your job duties relate to bridge design, that is, reviewing preliminary and final structure plans prepared by consulting firms. Although you review plans prepared by consulting engineering firms, you have no influence in selecting or hiring those firms for PennDOT contracts. Carnes, 00 -001 April 28, 2000 Page 2 You are contemplating employment with consulting firms as a Senior Structural Engineer in bridge design. You requested an advisory as to any restrictions that would impact upon your proposed future employment in the private sector. Advice of Counsel, 99 -645 outlined the restrictions that would apply to you as a former public employee for the first year following termination of service with PennDOT. It was determined that your former governmental body would be PennDOT in its entirety, including but not limited to Engineering District 6 -0. In your letter of February 17, 2000, by which you appealed Advice of Counsel, 99 -645, you ask that your appeal be accepted even though you acknowledge it to be untimely. You assert that the delay in filing your appeal resulted from a combination of the busy holiday season and the time it took you to fully realize the implications of the Advice on your ability to broaden your work experience. Despite your qualifications, you believe that the job classification which you hold is the lowest possible position in the engineering specialty so that you have very little responsibility associated with your position in terms of any ethical conflicts. By letter dated March 10, 2000, you were notified of the date, time, and location of the public meeting at which your appeal would be considered. You submitted a letter dated April 3, 2000, with attachments. The issue of the timeliness of your appeal is not addressed in your letter. Rather, the focus of your argument is that you are not a public employee as a PennDOT Civil Engineer. You assert that your job description does not reflect your actual duties which appear in an "Application for Employment /Promotion" that you recently filed. You believe that PennDOT and national design criteria, rather than any power you possess, determine what action you will take in a task. You state that all of your in -house design tasks begin after an official Scoping Field View is done and the written approval of the District Bridge Engineer is required at various stages of the project development. You then reference and challenge various statements from the Advice based upon your job duties. At the public meeting on April 13, 2000, you appeared and offered commentary. You did not provide any basis, other than as noted above, for the lateness of your appeal and reiterated the points made in your letter of April 3, 2000. You conclude that the generalized job description overstates the powers that an employe in your "non- supervisory" position actually has. 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. Section 13.2(h) of the State Ethics Commission's Regulations, which was specifically referenced, in large, bold fonts in the last paragraph of Advice of Counsel, 99 -645, provides: §13.2. Advice of counsel. (h) An appeal from an advice to the Commission shall be in writing and filed within 30 days of the issuance of the advice. 51 Pa. Code §13.2(h). The Regulations which govern the practice and procedure of Commonwealth administrative agencies provide in pertinent part: Carnes, 00 -001 April 28, 2000 Page 3 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 §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 agency and not the date of deposit in the mails is determinative. 1 Pa. Code §31.11 (Emphasis added). 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. 496, 429 A.2d 1288 (1981); Mayer v. Unemployment Compensation Board of Review, 27 Pa. Commw. 44, 336 A.2d 665 (1976). From the above, the time period for an appeal began to run from the date of mailing, which in this case was December 23, 1999. Therefore, to be timely, the appeal would have to have been received by this Commission thirty (30) days after service, which would be on January 24, 2000. However, your appeal was received on February 18, 2000, which was twenty -five (25) days beyond the appeal deadline. This Commission, in the past, has determined the filing requirements regarding a request for reconsideration or appeal are mandatory and, absent 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; Rovino, Opinion 88 -003; Cowie, Opinion 88- 010 -R; and Minor, Opinion 90- 016 -R. The fact that the Advice was received around the Christmas holiday and that you were unaware of its significance until some later time does not provide a basis for disregarding the mandatory appeal deadline. Your appeal is untimely and must be dismissed. IV. CONCLUSION: The appeal of Advice of Counsel, 99 -645, is dismissed as untimely filed. Pursuant to Section 1107(11), 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. This letter is a public record and will be made available as such. Finally, a party may request this Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §39.1. By the Commission, Carnes, 00 -001 April 28, 2000 Page 4 Daneen E. Reese Chair