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HomeMy WebLinkAbout1251R HeckIn re: Thomas Heck File Docket: X -ref: Date Decided: Date Mailed: 00- 059 -C2 Order No. 1251 -R 12/04/02 12/10/02 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Donald M. McCurdy Michael Healey The State Ethics Commission received a request for reconsideration on October 28, 2002, with respect to Order No. 1251 issued on September 25, 2002. Pursuant to Section 21.29 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 15 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 fora 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 §21.29(b), (c), (d), (e). This adjudication of the Commission is hereby issued which sets forth the Discussion and Reconsideration Order. This Reconsideration Order is final and shall be made available with Order No. 1251 as a public document on the fifth (5 business day following the date of issuance of this Order. Heck 00- 059 -C2 Page 2 DISCUSSION On September 25, 2002, we issued Heck, Order No. 1251, following our review of the record in this case. The allegations were that Thomas Heck, as an Analyst III for the Public Utility Commission, violated Sections 3(a)/1103(a), 5(a)/1105(a), and 5(b)(4), (5), (8) and (9)/ 1105(b)(4), (5), (8) and (9) of the Ethics Act when he failed to disclose on Statements of Financial Interests (SFI's) for calendar years 1996, 1997, 1998, and 1999 names and addresses of the sources of any direct or indirect income from rental properties; when he failed to disclose his financial interest in any legal entity engaged in business for profit and office, directorship or employment of any nature in a business entity; when he failed to disclose creditors and interest rates for properties he purchased which are not used as his primary residence; and when he used the facilities and telephones of the PUC to conduct his private business interests. In applying the allegations to the facts of record, we found that: 1. Heck, as an Analyst for the Public Utility Commission, Public Utilities Bureau of Conservation, Economics and Energy Planning, is a public employee subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Heck violated Section 5(b)/1105(b) of the Ethics Act in each instance when he failed to list financial interests that exceeded the reporting thresholds for the sources and addresses of rental income and the names of creditors and interest rates as to all of the real estate he owned and rented on his 1996, 1997, 1998, and 1999 calendar year SFI's. 3. Heck violated 3(a)/1103(a) of the Ethics Act when he used PUC offices and telephones to conduct his private real estate rental business. The allegation concerning the failure to disclose his financial interest in a legal entity engaged in business for profit, and office, directorship or employment of any nature in a business entity was not pursued by the Investigative Division which we treated as a non pros. Following the issuance of Order No. 1251, Heck filed a Petition for Reconsideration. The Investigative Division filed an Answer to the Petition for Reconsideration. Heck then filed a Reply to the Answer of the Investigative Division. In Heck's Request for Reconsideration, he asserts several material errors of fact: investigative activity about Heck's use of PUC telephones and offices for his real estate business improperly occurred prior to the investigative notice of October 3, 2001, with the investigative interviews (pages 65 -70) of his tenants; substantial new evidence exists that the Investigative Division investigators interviewed PUC employees concerning the PUC telephone usage prior to October 3, 2001; contrary to our base Order, there was no conscious decision by Heck not to interrogate Caruso regarding his (Heck's) motion, given that he is not an attorney and there is "trickery and public officials who would conceal the truth "; the finding of usage of PUC telephones during government working hours is not supported in the record in that the Investigative Division's witnesses (Birge, Kaloko and Miller) are "non- credible[,] vindictive and hostile "; the finding that Heck's witness, Hall, was unreliable is in error in that Hall was suffering from pneumonia when he testified; Heck's telephone usage was not extensive and the warnings from his supervisors did not use "the words 'apartments' or 'real estate business' or 'rental business'," but rather "personal interest, personal business, outside interests "; the finding that his failure to list his financial interests on his SFI's as to his business was not "knowing and reckless, and perhaps intentional" in that "the SFI form was not thought to be important at the time "; the form is "confusing and misleading" so that his filing Heck 00- 059 -C2 Page 3 was not in knowing disregard or intentional as he was unaware of the requirements and without any motive to conceal. The Investigative Division in its Answer raises the following arguments in opposition to the Request for Reconsideration: the record does not contain pages 65 through 70 in that the attempted introduction of those documents was excluded as improper hearsay with the explanation that Heck could then have called such individuals as witnesses; pages 65 -70 are not "new evidence" as being known at the time of the hearing, thereby failing to meet the reconsideration criteria of new facts that could not be discovered through due diligence; the failure of Heck to present documentary evidence or testimony to support his motion; the restatement by Heck of prior arguments as to terminology, such as "real estate business" rather than "personal business" as well as issues of witnesses' credibility and relevance /materiality were addressed in the base Order; the finding that Heck's actions as to filing his SFI's were reckless, knowing and possibly intentional was the result of this Commission's review of the record; and no basis in the exercise of administrative discretion to grant reconsideration. Heck, in his Reply to the Answer of the Investigative Division, raises the following: the reiteration that certain documents, pages 65 -70, are, part of the record; witness Hall's illness at the hearing was unknown to this Commission; and the evidence that contradicted the testimony of Birge, Kaloko and Miller was not considered. Having reviewed the filings relative to the Request for Reconsideration by Heck, we find that none of the criteria for granting reconsideration is met. Regarding Heck's argument concerning pages 65 -70, those documents are not part of the record. We do not and cannot review documentation that is not part of the record. As to the statements made by those individuals, Heck could have, but failed to call those persons as witnesses. Although Heck, now in retrospect, wants to call more witnesses, such is unavailing, given that he has had notice and an opportunity to be heard. In this regard, the Notice of Hearing in this case was issued on January 17, 2002, and the hearing was held on May 14 -15, 2002. Heck, who chose to represent himself, had approximately four months to prepare for the hearing. Further, Heck was issued all of the subpoenas he requested for the hearing. As to the failure by Heck to interrogate Caruso, Heck had the opportunity but did not develop evidence to support his motion. He cannot be now heard to complain about his own failure in that regard. The arguments by Heck concerning his PUC telephone usage as to his real estate rental business and the testimony or credibility of various witnesses have been already considered in the base Order. There is no basis for revisiting the same arguments that we considered and rejected for the reasons noted in the base Order. Parenthetically, Heck's statement about his witness Hall being ill at the hearing does not lend support to Heck's claim and, if anything, supports the finding that Hall was an unreliable witness. Heck's argument about terminology used in the base Order, "'apartment', or 'real estate business' or 'rental properties "' is simply a play on words. The substantive meaning of the terminology is the same: Heck's use of PUC telephones and offices during working PUC hours for his real estate rental business. As to the assertion that evidence was not considered which contradicted the testimony of Birge, Kaloko and Miller, the entire record, including Heck's own written admissions, were considered which supported our finding of his use of PUC offices and telephones for his real estate rental business. Finally, as to the whether Heck's deficient filings were knowing, reckless and possibly intentional, we so found based upon our analysis of the record. We find no basis to revisit that issue, particularly considering Heck's own statements which are part of the record. Heck 00- 059 -C2 Page 4 No argument has been raised by Heck which would meet the requisite standard for reconsideration. No material error of law has been established. No material error of fact has been established. No new facts or evidence has been provided which would lead to a reversal or modification of the Order 1251. Heck has failed to meet his burden of proof to establish any need for reconsideration. The Petition for Reconsideration is denied. In Re: Thomas Heck RECONSIDERATION ORDER NO. 1251 -R 1. The Petition for Reconsideration of Heck, Order No. 1251, is denied. BY THE COMMISSION, Louis W. Fryman, Chair File Docket: 00- 059 -C2 Date Decided: 12/04/02 Date Mailed: 12/10/02