HomeMy WebLinkAbout99-002-R JohnsonWallace G. Johnson, P.E.
666 Kelso Road
Pittsburgh, PA 15243
Dear Mr. Johnson:
I. ISSUE:
OPINION OF THE COMMISSION
III. DISCUSSION:
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: 6/1/99
DATE MAILED: 6/10/99
99 -002 -R
Re: Public Employee; PennDOT; Engineer; Temporary Wage Employee; Bridge
Coordinator; Section 1103(g) Reconsideration; Opinion 99 -002.
This Opinion is issued in response to your timely request for reconsideration of
Opinion 99 -002.
Whether this Commission should grant reconsideration of Opinion 99 -002.
II. FACTUAL BASIS FOR DETERMINATION:
On February 3, 1999, you appealed Advice of Counsel 99 -500. At a public meeting
on February 26, 1999 we decided the appeal of advice and then issued Johnson, Opinion
99 -002 on March 10, 1999.
In a timely reconsideration request received on April 9, 1999, you argue that our
finding that you had the ability to take or recommend official action which has an economic
impact of greater than a de minimis nature on the interests of any person must be viewed
from the perspective of its entirety whereby there must be a resultant effect before a
restriction or prohibition under the Ethics Act arises. You assert that because you take no
action, there is no economic impact upon the interests of any person. Finally, you argue
that it is inconceivable that Commonwealth Court intended to hold an individual
responsible for the actions which he could, but does not actually, perform.
Johnson, 99 -002 -R
June 10, 1999
Page 2
We have been asked to reconsider Opinion 99 -002. 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 as to our decision in Opinion 99 -002: that your actions do
not have an economic impact of greater than a de minimis nature on the interests of any
person; and that the decision of Commonwealth Court does not apply to an individual who
could, but does not actually, perform such actions.
The first argument was extensively considered and rejected in Opinion 99 -002. The
second issue concerning your interpretation of the decision of Commonwealth Court in
Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984) is simply
contrary to the holding of the Court.
Accordingly, since there is no material error of fact or law, we deny reconsideration
in the exercise of our discretion.
Johnson, 99 -002 -R
June 10, 1999
Page 3
IV. CONCLUSION:
Reconsiderationn of Opinion 99 -002 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