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HomeMy WebLinkAbout1318R PopkaveIn Re: Murray Popkave, Esq. File Docket: X -ref: Date Decided: Date Mailed: 02- 096 -C2 Order No. 1318 -R 9/20/04 10/1/04 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 28, 2004, with respect to Order No. 1318 issued on March 25, 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. Popkave, 02- 096 -C2 Page 2 This Reconsideration Order is final and shall be made available as a public document on the fifth (5th) business day following the date of issuance of this Order. DISCUSSION On March 25, 2004, we issued Popkave, Order No. 1318, following our review of the record in this case. The allegations were that Popkave, as Chairman of the Board of Trustees of the Einstein Academy Charter School (Charter School), violated Sections 1103(a), (c), and (f); 1104(a); and 1105(b)(5), (8), and (9) of the Ethics Act when: (1) he obtained positions of employment with Tutorbots, Inc., (Tutorbots), the Charter School's management company, for one of his sons and for a business with which he and another son are associated; (2) he approved payments from the Charter School to Tutorbots while one of his sons and a business with which he and another son are associated were employed by Tutorbots; (3) he solicited employment positions with Tutorbots for one of his sons and for a business with which he and another son are associated when he was authorized to make payments to Tutorbots for management services provided; (4) one of his sons and a business with which he and another son are associated contracted with Tutorbots in excess of $500.00 without an open and public process; (5) he failed to file a Statement of Financial Interests for the calendar year 2000 by May 1, 2001; (6) he failed to list D. P. Professional Painting, Inc. as a source of income in excess of $1,300.00 on Statements of Financial Interests filed for the 2001 and 2002 calendar years; (7) he failed to disclose his positions as Secretary and Treasurer of D. P. Professional Painting, Inc. on Statements of Financial Interests filed for the 2001 and 2002 calendar years; and (8) he failed to disclose D. P. Professional Painting, Inc. as a business entity in which he holds a financial interest on Statements of Financial Interests filed for the 2001 and 2002 calendar years. In applying the allegations to the facts of record, we found that: 1 Murray Popkave (Popkave), as Chairman of the Board of Trustees of the Einstein Academy Charter School (Charter School), violated Section 1103(a) of the Ethics Act when he obtained positions of employment with Tutorbots, Inc. (Tutorbots) for his son, Daniel Popkave, and for D. P. Professional Painting, Inc., a business with which Popkave and his son, David Popkave, are associated. 2. Popkave violated Section 1103(a) of the Ethics Act when in his capacity as Chairman of the Board of Trustees of the Charter School, he authorized payments from the Charter School to Tutorbots so that Tutorbots would have operating capital available to pay expenses, including the wages for Daniel Popkave and D. P. Professional Painting, Inc., a business with which Popkave and his son, David Popkave, are associated. 3. Popkave did not violate Section 1103(c) of the Ethics Act when he solicited positions of employment for his son, Daniel Popkave, and for D. P. Professional Painting, Inc., a business with which Popkave and his son, David Popkave, are associated, due to a lack of clear and convincing evidence that such solicitations were based upon his understanding as a public official that his official action or judgment would be influenced thereby. 4. Popkave did not violate Section 1103(f) of the Ethics Act when his son, Daniel Popkave, and D. P. Professional Painting, Inc., a business with which Popkave and his son, David Popkave, are associated, entered into employment contracts in excess of $500 with Tutorbots without an open and public process in that the contract was not between the Charter School and Tutorbots, a business with which Popkave is not associated, and neither Daniel Popkave nor D. P. Professional Painting, Inc. were under subcontracts with Tutorbots. Popkave, 02- 096 -C2 Page 3 5. Popkave violated Section 1104(a) of the Ethics Act when he failed to file his Statement of Financial Interests for the 2000 calendar year 6. Popkave violated Section 1105(b)(5) of the Ethics Act when he failed to list D. P. Professional Painting, Inc. as a source of income in excess of $1,300.00 on his Statements of Financial Interests for calendar years 2001 and 2002. 7 Popkave violated Section 1105(b)(8) of the Ethics Act when he failed to disclose that he was Secretary and Treasurer of D. P. Professional Painting, Inc. on Statements of Financial Interests filed for the 2001 and 2002 calendar years. 8. Popkave did not violate Section 1105(b)(9) of the Ethics Act when he failed to list D. P. Professional Painting, Inc. as a business in which he had a "financial interest" on Statements of Financial Interests for calendar years 2001 and 2002, based upon an insufficiency of evidence. In addition, we imposed a payback of $8,308.95, directed Popkave to file a Statement of Financial Interests (SFI) for the 2000 calendar year and amended SFI's for the calendar years 2001 and 2002 and referred the case for review as to a criminal prosecution. Following the issuance of Order No. 1318, Respondent filed a Petition for Reconsideration. The Investigative Division filed a Motion to Dismiss to the Petition for Reconsideration. In requesting reconsideration, Respondent proffers the following arguments: Respondent requested his prior counsel to file an answer and request a hearing but his counsel through negligence failed to do so in a timely manner; Respondent did not receive notice from his counsel or this Commission as to the base order and subsequent proceedings until being served as to an enforcement action on or about June 3, 2004; the primary complainant has admitted that the allegations as to Respondent are untrue; Respondent disputes the base order that is premised on false evidence rather than on Respondent's refuting evidence; after service on or about June 3, 2004, Respondent took immediate steps to determine the circumstances and retain new counsel; Respondent can offer evidence in contradiction to the facts and conclusions in the base order; this Commission made material errors of fact and law; and Respondent has suffered an injustice due to the negligence of his attorney, violation of his due process rights, and subsequent admissions by one of the complainants against him. The Investigative Division raises these arguments: Respondent's then counsel received the base order which was served upon him but did not appeal or request reconsideration within 30 -days of the final base order; communications occurred between Respondent's then counsel and the Investigative Division regarding the payment of the ordered restitution resulting in an agreement as to a payment schedule, the subsequent failure to pay followed by the institution of an enforcement action and the receipt of one payment; Commonwealth Court has jurisdiction over this matter with a scheduled enforcement hearing; this Commission presently has no jurisdiction to proceed; and Respondent by his new counsel filed his Petition for Reconsideration 88 days after the issuance of the base order and 58 days after the deadline for filing for reconsideration. In this case, we need not consider the criteria under which our discretion may be exercised for reconsideration due to the untimeliness of the request. As to the matter of timeliness, the issued Order was decided on March 11, 2004, and mailed on March 25, 2004. The 30 day period during which a request for reconsideration must be made is determined from the later of these two dates. Thus, any request for reconsideration must have been forwarded by the Respondent and received by Popkave, 02- 096 -C2 Page 4 the Commission within 30 days of March 25, 2004. In computing any period of time regarding requests for appeal or reconsideration by an administrative agency, the day of issuance (defined as mailing) is the date from which the time period is determined. Additionally, the date when such a request or appeal is considered filed is the date of receipt at the office of the agency and not the date of deposit in the mail. 51 Pa. Code § 11.1. See, Getz v. Pennsylvania Game Commission, 83 Pa. Commw. 59, 475 A.2d 1369 (1984). These time requirements are mandatory and absent fraud or negligent conduct by the administrative agency, such timing requirements may not be extended. See, Dilenno v. Unemployment Compensation Board of Review, 59 Pa. Commw. 496, 429 A.2d 1288 (1981); Mayer v. Unemployment Compensation Board of Review, 27 Pa. Commw. 44, 366 A.2d 665 (1976). In the instant situation as previously noted, the Order of the State Ethics Commission was mailed on March 25, 2004. The request for reconsideration which was made on behalf of Popkave by his counsel was dated June 25, 2004. That request was not received in the offices of the State Ethics Commission until June 28, 2004. The 30 day period during which the request for reconsideration was required to be made terminated on April 26, 2004. The request for reconsideration, therefore, was filed more than two months after the time period had expired. This Commission, in the past, has determined the filing requirements regarding a request for reconsideration are mandatory and absent a showing of fraud or breakdown in the postal systems, such will not be extended. See, Brunton, Order 884 -R; Smith, Opinion 85 -015; Silver, Opinion 85 -012; Cowie, Opinion 88- 010 -R. The instant matter is not the first time where Popkave created a timeliness problem before this Commission. The base order in this case was decided after Popkave failed to file a timely answer to the Investigative Complaint. Although he sought to file his answer nunc pro tunc to the Investigative Complaint after the time for filing a response had expired, we denied his petition because none of the criteria for granting a petition to file an answer nunc pro tunc was met. Even with the commission of such a fatal procedural error in the base order, Popkave has made the same error again in his Petition for Reconsideration which he filed over two months after the deadline. We grant the Investigative Division's motion to dismiss the petition for reconsideration. In Re: Murray Popkave, Esq. RECONSIDERATION ORDER NO. 1318 -R 1 The Petition for Reconsideration of Popkave, Order No. 1318, is dismissed as being untimely filed. BY THE COMMISSION, File Docket: 02- 096 -C2 Date Decided: 9/20/04 Date Mailed: 10/1/04 Louis W. Fryman, Chair