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HomeMy WebLinkAbout1334R LynchIn re: James Lynch File Docket: 02- 018 -C2 X -ref: Order No. 1334 -R Date Decided: 9/20/04 Date Mailed: 10/1/04 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen The State Ethics Commission received a request for reconsideration on July 22, 2004, with respect to Order No. 1334 issued on June 22, 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. 1334 as public documents on the fifth (5th) business day following the date of issuance of this Order. Lynch, 02- 018 -C2 Page 2 DISCUSSION On June 22, 2004, we issued Lynch, Order No. 1334, following our review of the record in this case. The allegation was that James Lynch, as a member of the Pennsylvania House of Representatives for the 65 District, violated Section 1103(a) of the Ethics Act when he submitted and received excess reimbursements from his legislative account for expenses not incurred; and used employees of his district /state offices, equipment and materials to conduct campaign related work. In applying the allegation to the facts of record, we found that: Lynch violated Section 1103(a) of the Ethics Act when he used the authority of office to submit and receive excess reimbursements from his legislative account for expenses not incurred; and when he utilized his legislative district employees in the district office to perform political/ campaign related work during normal state office hours. In addition, Lynch was directed to make payment to the Commonwealth of Pennsylvania in the amount of $5,381.23. There was also a directive to forward the case to the Pennsylvania House of Representatives for its review of Lynch's conduct. Following the issuance of Order No. 1334, Lynch filed a timely Request for Reconsideration as to our finding of violations of Section 1103(a). Lynch proffered the following general basis in support of his request for reconsideration: he was not represented by an attorney at the time of the hearing so that he did not fully understand the nature of the proceedings, could not properly or adequately raise appropriate defenses, did not present mitigation factors, or properly present testimony or evidence that would show his innocence; and facts and evidence which are available but were not properly presented to the Commission could possibly lead to the reversal or modification of the Order. Lynch then submitted five specific arguments in furtherance of his request for reconsideration: he believed his responses to the Investigative Complaint were a part of the admitted evidence of record (as established facts); he did not adequately present the issue of bias or prejudice as to former employees and could have presented additional staff members to contradict such testimony; he was unable to properly cross - examine the witnesses as to alleged contradictions or discrepancies in statements to the investigators and testimony; he was not able to present mitigating evidence as to a portion of contributions received for the senior expos; and he was unable to present evidence as to the use of paid employees or volunteers concerning political mailings. Lynch concluded that he cooperated fully with investigators, made certain mistakes in delegating responsibilities in his district office as to the funds for the Senior Expo and reimbursement claims, committed no intentional acts to create any private financial gain for himself or his family and had to defend against allegations that were politically motivated and made by others seeking to tarnish his reputation. The Investigative Division filed an Answer with New Matter on July 27, 2004, arguing that: Respondent provided no legal or factual basis to meet the regulatory requirement for the exercise of this Commission's discretion to grant reconsideration; pleadings that were not answered or were not denied have become deemed admitted facts; Respondent was given ample opportunity to present his case and cross - examine witnesses, including matters involving potential political bias and truthfulness; Respondent was granted an extension to file an answer and a hearing continuance; Respondent was given information by this Commission's Chief Counsel about hearing procedures, Lynch, 02- 018 -C2 Page 3 subpoenas of witnesses, and Respondent's failure to request subpoenas; the process and procedures of the Commission were known by Respondent; Respondent was given the requisite documentation by the Investigative Division for presenting his defense; the Comptroller of the House who testified as to financial issues was not asked questions by Respondent as to that aspect of his defense; reconsideration may only be granted if there are material errors of law or fact; no material error of law, fact or legal precedent has been alleged by Respondent; no particular finding of this Commission in the base order has been challenged by Respondent; no allegation of specific factual information or new evidence has been made by Respondent; only alleged general conclusions were made by Respondent regarding the consequences of not being represented by legal counsel; Respondent was not prohibited from pursuing the Senior Expo issue, including the opportunity to question the investigators; no basis has been established by Respondent for this Commission to exercise its discretion to grant reconsideration; and it is improper for Respondent to exercise his right to proceed pro se and then use it as justification for the grant of reconsideration. As to the points raised by Lynch, the assertions are merely variations of one basic argument, namely, that he did not retain counsel and did not present an adequate and proper defense at the hearing. Needless to say, it was solely Lynch's decision to represent himself. Lynch was given notice and an opportunity to be heard. The record reflects that he was given every opportunity to defend and present his case at the hearing. An "after the fact" circumspection by Lynch does not accord him the right to redo the hearing simply because he is displeased with the outcome and wants another hearing based upon his view that he may fare better the second time around. No argument has been raised by Lynch 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. Lynch has failed to meet his burden of proof to establish any need for reconsideration. See, Habay, Order 1313 -R. The Request for Reconsideration is denied. In Re: James Lynch RECONSIDERATION ORDER NO. 1334 -R 1 The Petition for Reconsideration of Lynch, Order No. 1334, is denied. BY THE COMMISSION, File Docket: 02- 018 -C2 Date Decided: 9/20/04 Date Mailed: 10/1/04 Louis W. Fryman, Chair