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HomeMy WebLinkAbout1320R HutchinsIn re: Donald Hutchins File Docket: X -ref: Date Decided: Date Mailed: 03 -007 Order No. 1320 -R 6/8/04 6/10/04 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Donald M. McCurdy Michael Healey Paul M. Henry Raquel K. Bergen The State Ethics Commission received a request for reconsideration on June 3, 2004, with respect to Order No. 1320 issued on May 17, 2004. 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 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 §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. 1320 as public documents on the fifth (5th) business day following the date of issuance of this Order. Hutchins 03 -007 Page 2 DISCUSSION On May 17, 2004, we issued Hutchins, Order No. 1320, following our review of the record in this case. The allegation was that that Hutchins, as a Muddy Creek Township Supervisor, violated Sections 1103(a) or 1103(f) of the Ethics Act when he selected his business, S &P Construction Company (S&P), for renovation work to a township facility; when S &P received a contract in excess of $500.00 without an open and public process; when he approved payments and signed checks issued to S &P; and when he utilized township equipment, manpower and materials for his personal use. In applying the allegation to the facts of record, we found that: 1. Hutchins, as a Muddy Creek Township Supervisor, violated Section 1103(a) of the Ethics Act when he used the authority of office to obtain a private pecuniary benefit for his business S &P as to a township repair /renovation project and participated in the bill approval /payment process. 2. Hutchins violated Section 1103(f) of the Ethics Act when he and his business, S &P, entered into a contract with the township for repairs and renovations for a township office where the contract was in excess of $500 and was not awarded through an open and public process. 3. Hutchins violated Section 1103(a) of the Ethics Act when he utilized township equipment, personnel and materials for personal use. In addition, we directed Hutchins within 30 days of the date of mailing of the Order to make payment of $2,799.15 through this Commission to the Commonwealth of Pennsylvania. Following the issuance of Order No. 1320, Respondent filed an "Answer to Adjudication and Request for Reconsideration and Motion for Appeal" which has been treated as a request for reconsideration. Hutchins' counsel makes the following arguments in support of his request for reconsideration: Hutchins did not create S &P and received no money from the company; Hutchins never snow plowed his own driveway but did so for his parents due to their illness and need for access to doctors and hospitals; the township crew delivered gravel to his property while the crew was in the area with the gravel consisting of only a few hundred pounds; Hutchins believed that a public bidding process was not required for contracts under $500; Hutchins and the other supervisors considered the contracts as individual rather than lumped together as one contract; Hutchins and the other supervisors used three contractors and three suppliers for the township project; Hutchins invited Stabryla and Pope to form a company (S &P) so that they could bid on the project; the workers on the project received what they were paid and nothing less; Hutchins only received $750 for working on the project; Hutchins had no mens rea or actus rea to violate the Ethics Act; and a hearing will establish new facts and evidence that Hutchins had no pecuniary interest in S &P, did not snow plow his own driveway but had permission as to the plowing of his parents driveway, and Hutchins did not make any special request to have a small amount of gravel dumped on his property. The Investigative Division filed an Answer to the request for reconsideration raising the following: the Commission regulations require a material error of fact /law or new facts /evidence for reconsideration; Respondent's failure to file a timely answer resulted in issues not being raised during the proceeding; Respondent does not challenge facts but instances where he would disagree with findings had he filed an answer; Respondent has not Hutchins 03 -007 Page 3 established any new facts; and Respondent has offered nothing new regarding his failure to file an answer. The various arguments raised by Hutchins relate to factual arguments that are not in dispute at this juncture. Procedurally, Hutchins sought to file his answer which he acknowledged was mailed after the 30 -day deadline expired. We denied his nunc pro tunc application on the basis that the criteria for accepting the late filing had not been met. At that juncture, the averments in the Investigative Complaint were deemed admitted and those findings were the basis for our decision. We cannot and will not, as Hutchins suggests, allow him to challenge or argue the validity of these facts at this point. Hutchins may not, through the guise of a reconsideration request, make a backdoor challenge to the established facts of record. No argument has been raised by Hutchins 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. Hutchins has failed to meet his burden of proof to establish any need for reconsideration. The Petition for Reconsideration is denied. In Re: Donald Hutchins RECONSIDERATION ORDER NO. 1320 -R 1. The Petition for Reconsideration of Hutchins, Order No. 1320, is denied. BY THE COMMISSION, Louis W. Fryman, Chair File Docket: 03 -007 Date Decided: 6/8/04 Date Mailed: 6/10/04