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HomeMy WebLinkAbout98-007-R MatternD. Mattern 15 Locust Circle Etters, PA 17319 Dear Ms. Mattern: OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Julius Uehlein Louis W. Fryman Frank M. Brown Susan Mosites Bicket DATE DECIDED: 2/26/99 DATE MAILED: 3/10/99 98 -007 -R Re: Reconsideration; Opinion No. 98 -007; FIS; Leave of Absence; Public Employee; DEP; Environmental Chemist 2; Appeal; Appeal of Advice; Mailing; Personal Information. This Opinion is issued in response to your letter dated November 16, 1998 which has been treated as a request for reconsideration of Mattern, Opinion No. 98 -007. I. ISSUE: Whether this Commission should grant reconsideration of Mattern, Opinion No. 98 -007. II. FACTUAL BASIS FOR DETERMINATION: By letter dated August 17, 1998, you appealed the financial disclosure requirement of the Ethics Act noting that, in your position as an Environmental Chemist 2 for the Department of Environmental Protection ( "DEP "), Bureau of Land Recycling and Waste Management, you had been on a leave of absence from some time in January, 1997 until your resignation in September, 1997. In Mattern, Opinion No. 98 -007 issued on October 20, 1998, we found that where a prior Advice of Counsel, No. 96 -596 had determined that, as an Environmental Chemist 2 for DEP, Bureau of Land Recycling and Waste Management, you would be considered a Apublic employee subject to the Public Official and Employee Ethics Law ( "Ethics Law ") and specifically the requirements to file Statements of Financial Interests, and where such Advice was not appealed and you offered no justification for revisiting such issues, the determination of the Advice of Counsel, No. 96 -596 was considered final and would not be revisited by this Commission. We further determined that a public employee's duty to file Statements of Financial Interests would not be abrogated by the taking of a leave of absence, even if such leave of absence would be in effect continuously from January 1 through resignation from public employment. In a timely reconsideration request, you argue that Mattern, Opinion No. 98 -007 is invalid in that you never received Advice of Counsel, No. 96 -596 and therefore had no opportunity to review or appeal said Advice. In addition, you argue that Mattern, Opinion No. 98 -007 contains your home address, which you state is personal information not subject to public disclosure and unrelated to the filing of an appeal with the Commission, so that this information should be removed from the public record. This case was scheduled for the public meeting of December 15, 1998, but was continued because you advised that you did not have sufficient time to submit written materials and requested that consideration of your appeal be rescheduled to our next public meeting. Following your receipt of notice of the Commission's public meeting of February 26, 1999, you submitted a letter dated February 19, 1999 (received on February 22, 1999). You did not appear at the public meeting. In your letter, you restate that you never received Advice of Counsel, No. 96 -596 upon which Opinion No. 98 -007 is based. You argue that because you never received the Advice of Counsel, you did not have the opportunity to review it and file an appeal so that Opinion No. 98 -007 is not "valid." III. DISCUSSION: We have been asked to reconsider Mattern, Opinion No. 98- 007. This Commission may exercise broad discretion in determining whether to grant or deny reconsideration as long as such discretion is exercised in a sound manner. Krane, Opinion 84- 001 -R; PSATS v. State Ethics Commission, 499 A.2d 735 (1985). The Regulations of this Commission provide: §13.3. Opinions. (d) Reconsideration may be granted in the discretion of the Commission under §21.29(e). §21.29. Finality; reconsideration. (b) Any party may ask the Commission to reconsider an order or opinion within 30 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (c) A request for reconsideration filed with the Commission will delay the public release of an order, but will not suspend the final order unless reconsideration is granted by the Commission. (d) A request for reconsideration may include a request for a hearing before the Commission. (e) Reconsideration may be granted at the discretion of the Commission if: (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 or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. 51 Pa.Code § §13.3(d); 21.29(b), (c), (d), (e). We must now address the question as to whether you meet the criteria for this Commission to exercise its discretion to either grant or deny reconsideration. You raise two arguments in your request for reconsideration: Opinion No. 98 -007 is invalid because you never received Advice of Counsel, No. 96 -596 issued on September 26, 1996 and hence had no opportunity to appeal the Advice; and the Opinion infringes upon your right to the privacy of personal information. As to your first argument, the law provides that depositing a properly addressed, postage pre -paid letter raises the presumption that the letter reached its destination and such mailing is prima facie evidence that it was received by the person to whom it was addressed. Cameron Estate, 388 Pa. 25, 13 A.2nd 173 (1957). At this Commission, there is a process in place to mail documents, through the U.S. Mail, postage prepaid, which occurred as to Advice of Counsel, No. 96 -596. Accordingly, Advice of Counsel, No. 96 -596 was delivered to you and no appeal was filed. Regarding your claim of privacy, you were specifically advised by letter dated August 25, 1998 that you could request a confidential advisory. You chose not to exercise that right. Further, the only address that you supplied was the address set forth in Opinion No. 98 -007. Lastly, Opinion No. 98 -007 is a public document upon issuance and cannot be redacted at this time. In that none of the criteria for granting reconsideration has been established, reconsideration is denied. IV. CONCLUSION: The request for reconsideration of Mattern, Opinion No. 98 -007 is denied. Pursuant to Section 1107(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. This letter is a public record and will be made available as such. By the Commission, Daneen E. Reese Chair