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