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HomeMy WebLinkAbout1403R Nagele, Jr.In Re: Ray Nagele, Jr. File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas Colafella 05- 037 -C2 Order No. 1403 -R 10/4/2006 10/20/2006 The State Ethics Commission received a request for reconsideration on August 3, 2006, with respect to Order No. 1403 issued on June 30, 2006. 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. Nagele, 05- 037 -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 June 30, 2006, we issued Nagele, Order No. 1403, following our review of the record in this case. The allegations were that Nagele, a public official in his capacity as Supervisor for Overton Township, Bradford County, violated Sections 1103(a), 1104(a) and 1104(d) of the Ethics Act when he used the authority of his office for private pecuniary gain by claiming and accepting compensation as a township roadmaster in excess of that approved by the township auditors; when he participated in actions of the Board of Supervisors to approve payments to himself; when he failed to file a Statement of Financial Interests (SFI) for the 2002 calendar year by May 1, 2003; when he subsequently backdated an SFI for the 2002 calendar year giving the appearance that the form was timely filed; and when he participated in discussions and actions of the Board of Supervisors including, but not limited to, voting to approve payments and expenses, including attorney's fees, for a personal legal matter. In applying the allegations to the facts of record, we found that: 1 Ray Nagele, Jr. (Nagele), a public official in his capacity as Supervisor of Overton Township, Bradford County, violated Section 1103(a) of the Ethics Act when he used the authority of office as a Township Supervisor to increase his rate of compensation as a working Township employee, thereby generating additional compensation of $1,941.50 to himself that was not authorized by the Township Board of Auditors. 2. Nagele violated Section 1103(a) of the Ethics Act when he used the authority of office to approve excess compensation to himself and co- endorsed checks payable to himself for that unauthorized compensation. 3. Nagele violated Section 1103(a) of the Ethics Act when he used the authority of office as to the approval and payment by the Township of attorney's fees and bail totaling $950 that were of a personal legal nature. 4. Nagele violated Section 1104(a) of the Ethics Act when he failed to timely file an SFI for the 2002 calendar year by May 1, 2003. 5. Nagele violated Section 1104(a) of the Ethics Act when he backdated for calendar year 2002 an SFI that was prepared and submitted after May 1, 2003. 6. Nagele violated Section 1104(d) of the Ethics Act when he received compensation as a public official but failed to file the requisite SFI for calendar year 2002. In addition, we imposed a payback of $2,891.50 and directed Nagele to file complete and accurate SFIs /amended SFIs for the calendar years 2000 through 2005. Following the issuance of Order No. 1403, this Commission received on August 3, 2006 a letter from Nagele, which will be treated as a Request for Reconsideration. The Investigative Division filed a Motion to Dismiss the Request for Reconsideration. In requesting reconsideration, Nagele proffers the following arguments: the Investigative Division performed an investigation without being thorough; the Investigators from the Investigative Division did not speak to any witnesses who were present at Township meetings; Nagele performed his elected job honestly and to the best of his Nagele, 05- 037 -C2 Page 3 ability; Nagele at no time knowingly did anything wrong; the allegation that Nagele received excess compensation did not relate to his actions but rather related to a discrepancy between the Township's minutes and the Township Auditors' records; the Township Supervisors and the Township Auditors resolved the issue of the discrepancy between the Township minutes and the Township Auditors' records with respect to Nagele's pay rate when they agreed the books contained an honest mistake that was nobody's fault; Nagele dutifully endorsed the checks payable to himself because he believed the Township minutes to be correct; people with personal vendettas made the allegations against Nagele in order to cause problems for him; when Nagele prepared and submitted an SFI for calendar year 2002 after May 1, 2003, he did not intend to make it appear that he timely filed the SFI but rather intended to replace a previously filed SFI for calendar year 2002 that was missing; and evidence as to the criminal charges filed against Nagele had no bearing on the allegations against him and did not belong in the Commission's Order. The Investigative Division raises these arguments: the issued Order was decided on June 23, 2006 and was served on Nagele on June 30, 2006; pursuant to the Regulations of this Commission, a request for reconsideration of the Order was to have been filed within thirty days of the date of service of the Order; Nagele's Request for Reconsideration was to have been filed on or before July 30, 2006; and Nagele's Request for Reconsideration was untimely filed in that it was not received by the Investigative Division until August 3, 2006. 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 June 23, 2006, and mailed on June 30, 2006. 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 Nagele and received by the Commission within 30 days of June 30, 2006. 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 matter, the Order of the State Ethics Commission was mailed on June 30, 2006. Nagele's Request for Reconsideration was dated August 1, 2006. That Request was not received in the offices of the State Ethics Commission until August 3, 2006. The 30 day period during which a request for reconsideration was required to be made terminated on July 31, 2006. The Request for Reconsideration, therefore, was filed three days 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. We grant the Investigative Division's Motion to Dismiss the Request for Reconsideration. Nagele, 05- 037 -C2 Page 4 In Re: Ray Nagele, Jr. RECONSIDERATION ORDER NO. 1403 -R 1 The Request for Reconsideration of Naqele, Order No. 1403, is dismissed as being untimely filed. BY THE COMMISSION, File Docket: 05- 037 -C2 Date Decided: 10/4/2006 Date Mailed: 10/20/2006 Louis W. Fryman, Chair