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