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HomeMy WebLinkAbout143SR CopeIn Re: Ann Cope File Docket: X -Ref: Date Decided: Date Mailed: 02 -003 -P Order 143 -S -R 9/4/02 9/25/02 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Susan Mosites Bicket Donald M. McCurdy Michael Healey The State Ethics Commission received a request for reconsideration on June 6, 2002, with respect to Order 143 -S issued on May 16, 2002. Pursuant to §§ 2.38(b),(c)/21.29(b),(e) of the Regulations of the Commission, the discretion of the State Ethics Commission to grant reconsideration is properly invoked as follows: § 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. (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 §§ 21.29(b), (e). This adjudication of the Commission is hereby issued which sets forth the Discussion and Reconsideration Order. This Reconsideration Order as with Order 143 -S is final and is a public document. Cope 02 -003 -P Page 2 DISCUSSION On May 16, 2002, we issued Cope, Order 143 -S, following our review of the record in this case. This case involves civil penalty proceedings against Ann Cope ( "Cope "), a Member of the Statewide Independent Living Council ("SILO"), who failed to timely file a Statement of Financial Interests (FIS) for calendar year 1999 with this Commission and the SILC. Following the process and procedure of this Commission, the prerequisite service of a Notice letter in accordance with Section 1107(5) of the Ethics Act was satisfied. Cope failed to comply with the Ethics Act although given more than the usual grace period following Notice in which to do so. The Investigative Division then instituted formal proceedings against Cope by filing with this Commission and serving upon Cope a Petition for Civil Penalties. An Order to show Cause was issued ordering Cope to show cause why a civil penalty should not be levied. Cope did not file an answer to the Order to Show Cause. On May 16, 2002, we issued Cope, Order 143 -S. We determined that Cope, as a Member of the SI LC, was at all times relevant to these proceedings a public official subject to the Ethics Act. We further determined that Cope failed to comply with Section 1104(a) of the Ethics Act when she failed to file an FIS for the 1999 calendar year with this Commission and the SI LC. The Order references Cope's apparent confusion as to her obligation to file the FIS form. However, in the absence of any Answer to the Petition for Civil Penalties, or indeed, any formal participation by Cope in the proceedings before this Commission, the default Order imposed a full civil penalty in the amount of $250, as had been requested by the Petition for Civil Penalties. However, it is clear from the face of the record that prior to the issuance of Order 143 - S, a consent agreement between Cope and the Investigative Division had been contemplated by both parties. Following the issuance of the Order, a letter dated May 23, 2002, from Assistant Counsel for the Investigative Division to Cope was docketed as part of the official record in this case. The letter returned to Cope her personal check dated May 5, 2002, in the amount of $100. The letter stated in pertinent part as follows: The Investigative Division is in receipt of your Statements of Financial Interests for calendar years 1999 and 2001, which have been accepted for filing. However, your $100 check is being returned to you per the Commission's recent final Order which fined you $250. Also, we are in receipt of your correspondence in which you express your belief that you should not have been required to file Financial Interests Statements because you believe your public appointment was to a Board which is "advisory only." You should have raised this issue earlier in the process instead of ignoring notices mailed to your attention. A copy of your letter is being forwarded to our Chief Counsel. Please be advised that you have thirty (30) days from the mailing date of the Commission's final Order to formally request in writing "reconsideration" of the adjudication and penalty rendered by the Commission and setting forth your reasons for same if you wish the Commission to take a second look at your case... . As you are aware from recent correspondence I sent to you, the Consent Agreement between the parties was withdrawn and rescinded due to Cope 02 -003 -P Page 3 your excessive delay in signing it and forwarding payment and completion of the requested Statement of Financial Interests for calendar year 1999. Apparently, the Commission agreed. (May 23, 2002, Letter of Shugars at 1 -2). Attached to the letter as docketed is a photocopy of Cope's check and cover letter, both of which are dated May 5, 2002. Substantively, Cope's letter states Cope's view that the SILC is an advisory board and inquires as to whether Counsel for the Investigative Division received information from a certain individual at the SILC office. As noted above, following the issuance of Order 143 -S, Cope timely filed a request for reconsideration. Cope's arguments in support of the request for reconsideration may be fairly summarized as follows: 1. That Cope did not file the FIS initially due to a lack of clarity in the instructions on the form regarding the exception for members of advisory boards; 2. That Cope believes that as a Member of the SILC, she is within the exception for members of advisory boards; 3. That Cope has been in the process of obtaining information to pass on to this Commission explaining the nature of the SILC and its functions, which information: (a) is attached to Cope's request for reconsideration; (b) includes pages from what would appear to be the web site of the SILC; and (c) includes narrative text and House Bill No. 1701, Session of 1993, and Senate Bill No. 1739, Session of 1994, pertaining to the establishment, powers and duties of the SILC; 4. That at a meeting of the SILC, Cope brought up the issue of whether Members were required to file Statements of Financial Interests under the Ethics Act and was advised by a government liaison from the Office of Vocational Rehabilitation that such individual would find out about it and "take care of it "; 5. That Cope does not remember receiving "notices," but that she probably did receive them thinking they were "standard issue" and mailed automatically, even though they did not apply to her or to the SILC; 6. That Cope has complied with the Investigative Division's requests including filing forms for 1999 and 2001 and forwarding a check in the amount of $100; 7. That it was Cope's understanding as to the instant matter that the $100 which she forwarded to the Investigative Division was an agreed "fine "; and 8. That Cope's case should have been deferred until all of the issues in this matter including the status of Members of the SILC could be resolved. Cope requests that the adjudication and civil penalty levied against her be removed. (May 31, 2002, Letter of Cope). Points 1 -4 and 8 above relate to Cope's status as a Member of the SILC. Such status is of critical importance because it is jurisdictional. Questions of jurisdiction are never waived. Cope 02 -003 -P Page 4 See, e.q., Pennhurst Medical Group, P.C. v. Commonwealth, 796 A.2d 423 (Pa. Cmwlth. 2002). Point 5 above is not particularly significant in that there does not appear to be any issue in this case as to service of the required notices upon Cope. Points 6 and 7 above relate to potential mitigating factors. On July 8, 2002, the Investigative Division filed an Answer and New Matter in Opposition to Respondent's Motion for Reconsideration. The Investigative Division has requested that reconsideration be denied based upon the following arguments: 1. That Cope has not met the standards for reconsideration; 2. That due to her appointment by the Governor and the powers and duties of the SILC, Cope is a public official as defined by the Ethics Act and does not fall within the exception for members of purely advisory boards; 3. That if Cope wished to complete her FIS in a timely manner or had a question regarding it, she could have contacted the Commission prior to the due date; 4. That Cope received but ignored the notices of noncompliance sent to her by the Investigative Division; 5. That in early March 2002 Cope contacted the Investigative Division and inquired about the nature of the enforcement proceedings against her, and that based upon that telephone conversation, Assistant Counsel for the Investigative Division forwarded a Consent Agreement to Cope with instructions to review and sign the Consent Agreement, to forward a check or money order in the amount of $100, and to complete and return Cope's calendar year 1999 FIS. 6. That in a telephone conversation in early April 2002 Cope did raise the issue of confusion with the Investigative Division and indicated her belief that the SILC was advisory only and that the FIS form was not required, but that Cope neglected to take any timely action to raise such issues before the Commission at any time prior to the issuance of a final order; 7. That Cope never signed and returned the proposed Consent Agreement to the Investigative Division; 8. That by letter dated April 8, 2002, the Investigative Division rescinded its settlement offer to Cope for the stated reason of Cope's inaction; 9. That even if Cope's letter and check dated May 5, 2002, were actually tendered on that date, such was approximately one month after Cope had been informed that the offer of settlement had been rescinded; 10. That Cope's letter dated May 5, 2002, must have been backdated based upon materials attached to the letter that had been printed off the Internet on May 22, 2002; 11. That Cope's letter and check dated May 5, 2002, as well as Cope's completed FIS forms for calendar years 1999 and 2001, were received by the Investigative Division on May 17, 2002 —the day after this Commission issued Order 143 -S imposing a $250 civil penalty; and Cope 02 -003 -P Page 5 12. That Cope has been penalized as the result of her own neglect, inaction, and disdain for the Ethics Act. We parenthetically note with regard to the tenth point argued by the Investigative Division above that the copy of Cope's letter that has been filed as part of the official record does not include any such attachments from the Internet. The only printouts from the Internet that are part of the official record are attached to Cope's letter dated May 31, 2002, by which she requested reconsideration. Finally, we note that Cope did not file a formal Reply to the Investigative Division's New Matter but submitted a letter, received August 30, 2002, in which she stated that she intended no malice by her actions regarding the filing of the FIS; that she believed the SILC to be advisory in nature; that she erred in not bringing her position to this Commission at an earlier date; and that she has made a good faith effort to remedy the situation. In considering the above, it is true that Cope as a pro se Respondent failed to participate in the prior proceedings in this case. However, we determine that Cope has met the requisite standards for reconsideration by providing new facts or evidence which would lead to a modification of the Order. There is a legitimate issue as to jurisdiction and there are potential mitigating factors which should be considered by this Commission. Based upon all of the circumstances in this case as set forth above, we shall exercise our discretion to grant the Petition for Reconsideration. We shall initially consider whether as a Member of the SILC, Cope is a public official subject to the Ethics Act. Cope has argued that Members of the SILC would fall within the statutory exception italicized below: § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. § 1102 (Emphasis added). The Regulations of this Commission similarly define the term "public official" and set forth the following additional criteria that are used to determine whether the advisory board exception applies: (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis economic impact on the interest of a person. Cope 02 -003 -P Page 6 (B) The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations or ordinances. (VII) The body has the power of eminent domain or condemnation. (VIII) The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. (C ) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. (F) Members of zoning hearing boards and similar quasi- judicial bodies. (G) Members of the public bodies meeting the criteria in Cope 02 -003 -P Page 7 paragraph (i)(A). 51 Pa. Code § 11.1. Status as a "public official" subject to the Ethics Act is determined by applying the above definition and criteria to the position held. The focus is necessarily upon the position itself, and not upon the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying the position may carry out those functions. See, Philips v. State Ethics Commission, 470 A.2d 659 Pa. Commw. Ct. 1984); Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982. Furthermore, the Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Phillips, supra. We note that the SILC was established by the Independent Living Services Act, Act 139 of 1994, 62 P.S.§ 3201 et seq. All Members of the SILC are appointed by the Governor. 62 P.S. § 3205(b). The powers and duties of the SILC include the following: § 3206. Powers and duties The council shall: (1) Jointly develop and submit, in conjunction with the designated State agency, the State plan required by this act. (2) Monitor, review and evaluate implementation of the State plan. (3) Coordinate activities with other State advisory bodies that address the needs of specific disability populations and related issues under Federal and State laws. (4) Ensure that all regularly scheduled meetings of the council are open to the public and that sufficient advance notice of meetings is provided. (5) Prepare reports and make recommendations, as necessary, to the Governor and General Assembly. 62 P.S. § 3206 (Emphasis added). The "State plan" referenced above must, interalia, provide a strategy for expanding and enhancing the Statewide network of centers for independent living and set the priorities for expenditure of related State funds. 62 P.S. § 3207(c). In addition, the SILC plays a role in the awarding of public grants /funding: § 3208. Grants and funding (a) Authority to award grants. —Under applicable provisions of the State plan, the director of the designated State agency shall, with the approval of the council, designate agencies within this Commonwealth eligible to receive funds allotted by the Commonwealth for establishment of centers for independent living. (b) Eligible agencies. —The director of the designated State agency may, with the approval of the council, make a grant under this section to any designated eligible agency Cope 02 -003 -P Page 8 that: (1) has the power and authority to carry out the purposes of this act; (2) is determined by the director of the designated State agency and the council to be able to plan, conduct, administer and evaluate a center for independent living consistent with sections 10 and 11; and (3) submits an application to the director of the designated State agency at a time and in such manner and containing such information as the director and the council may require. (d) Minimum annual allocation. — Subject to the availability of appropriations, the minimum annual allocation for each center for independent living shall be $200,000 in Federal and State funds. Priority for distribution of State funds shall be as follows: (1) Existing State - funded centers for independent living. (2) Centers for independent living funded through Title VII of the Rehabilitation Act of 1973, which receive less than the minimum annual allocation. (3) New centers for independent living planned by the council. (e) New centers for independent living. If the council determines that there is no center for independent living serving a geographic region of this Commonwealth or a region is underserved and the State appropriation for the year is sufficient to support an additional center for independent living within this Commonwealth, the director may award a grant under this section to the most qualified applicant, consistent with provisions in the State plan relating to establishment of a Statewide network of centers for independent living. 62 P.S. §§ 3208(a), (b), (d), (e) (Emphasis added). Finally, it is noted that a center for independent living must provide —at a time and in such manner as the council may require — certain assurances detailed at 62 P.S. § 3211. In considering the powers and duties of the SILC, it is clear that although the SILC performs some advisory functions, and is indeed described in the enabling statute as an advisory body, for purposes of applying the Ethics Act, the SILC goes beyond advisory functions. In order for a member of a body to qualify under the exception to the definition of "public official" as set forth in the Ethics Act, the body served must be an advisory board that has "no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof." 65 Pa.C.S. § 1102. Yet it is clear from the statutory provisions as set forth and italicized above that the SILC does have authority with regard to the expenditure of public grants /funding, and that it does exercise the power of the State as to the State plan and the planning of new centers for Cope 02 -003 -P Page 9 independent living. As a Member of the SILC, Cope has the statutory authority and /or responsibility to participate in these activities which clearly meet the definition and the criteria by which status as a "public official" is determined. Therefore, based upon the above judicial directives, the provisions of the Ethics Act, this Commission's Regulations, and the opinions of this Commission, in light of Cope's duties and responsibilities, the necessary conclusion is that as a Member of the SILC, Cope is a "public official" subject to the financial reporting and disclosure requirements of the Ethics Act. Having confirmed Cope's status as a public official required to file Statements of Financial Interests under the Ethics Act, we note that Cope is deemed to have admitted the factual averments of the Petition for Civil Penalties. There is no question that Cope failed to timely file a Statement of Financial Interests for calendar year 1999 with the State Ethics Commission and the SILC, and that pursuant to Section 1109(f) of the Ethics Act, a maximum civil penalty could lawfully be imposed against Cope in this case. However, it is our view that there are mitigating circumstances in this case which Justify the imposition of a lesser civil penalty. See, State Ethics Commission Resolution 91 -002 adopted December 4, 1991. We determine that Cope's violation of the filing requirement was not the result of blatant or intentional conduct or inexcusable neglect, but rather, was the result of genuine confusion as to whether the filing requirement even applied to her. We note that an unsupported claim of confusion will not require the reduction of civil penalty. However, in this case, confusion ma y well have been generated by the fact that the Independent Living Services Act, Act 139 of 1994, 62 P.S. § 3201 et seq., itself describes the SILC as an advisory body. We recognize that a non - lawyer might not grasp the fact that mere status as an advisory body does not necessarily satisfy the statutory criteria for applicability of the Ethics Act's exception to the definition of "public official." Additionally, we find that Respondent did take meaningful measures to attempt to remedy the filing deficiency through communications with the Investigative Division, her ultimate filing of the FIS form, and her submission of a check to the Investigative Division in the amount of $100, which she obviously believed to be an agreed -upon penalty. We recognize that a non - lawyer might not grasp the necessity of, or the procedure for, formalizing a Consent Agreement. Finally, the record before us does not reflect any prior history of FIS delinquencies or deficiencies as to this Respondent. Upon review of Order 143 -S in conjunction with the arguments which have been made, we find that new facts or evidence warrant a reduction in the civil penalty from $250 to $100. We take administrative notice that Cope filed her 1999 calendar year FIS with the State Ethics Commission on May 17, 2002. Given that her prior check was returned by the Investigative Division, Cope is ordered to pay the reduced civil penalty in the amount of $100 within thirty (30) days of the issuance of this Order, by forwarding a check to this Commission payable to the Commonwealth of Pennsylvania for deposit in the State Treasury. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Non- compliance will result in the institution of an order enforcement action. In Re: Ann Cope File Docket: 02 -003 -P Date Decided: 9/4/02 Date Mailed: 9/25/02 RECONSIDERATION ORDER NO. 143 -S -R 1. The request by Ann Cope ( "Cope ") to reconsider Order 143 -S issued on May 16, 2002, is granted. 2. Cope failed to comply with Section 1104(a) of the Ethics Act when she failed to timely file a Statement of Financial Interests (FIS with the State Ethics Commission and the Statewide Independent Living Council ( "S LC ") for the 1999 calendar year. 3. The previously imposed civil penalty in the amount of $250.00 is reduced to $100.00 based upon new facts /evidence. 4. Having filed an FIS for calendar year 1999 on May 17, 2002, Cope is ordered to pay the reduced civil penalty in the amount of $100.00 within thirty (30) days of the issuance of this Order, by forwarding a check to this Commission payable to the Commonwealth of Pennsylvania for deposit in the State Treasury. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, LOUIS W. FRYMAN, CHAIR