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Eathorne v. State Ethics Commission

November 7, 2008

ROBERT EATHORNE, PETITIONER
v.
STATE ETHICS COMMISSION, RESPONDENT



The opinion of the court was delivered by: Judge Pellegrini

Argued: September 11, 2008

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge, HONORABLE MARY HANNAH LEAVITT, Judge

OPINION

Robert Eathorne (Eathorne) petitions for review of a final adjudication of the State Ethics Commission (Commission) denying his request to file an untimely filed answer nunc pro tunc and ultimately finding that he violated Section 1103(a) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa. C.S. §1103(a). Because the Commission had discretion to extend the filing deadline for good cause shown and good cause was shown, we vacate and remand the Commission's decision so that it can hold an administrative hearing.

Eathorne was a member of the Western Westmoreland Municipal Authority (Authority) from July 18, 1996, through December 2006. He also held the position of Authority Board Treasurer. On September 11, 2006, the Commission's Investigative Division (ID) received a signed, sworn complaint alleging that Eathorne violated provisions of the Ethics Act by utilizing his position as a member of the Authority to authorize the use of funds for his personal attendance at conferences and conventions. Upon review of the complaint, ID initiated a preliminary inquiry. On November 9, 2006, a letter was forwarded from ID to Eathorne informing him that a complaint against him was received and that a full investigation was being commenced. Once the investigation was completed, a "Findings Report" (titled as Investigative Complaint) was sent on November 2, 2007, to Eathorne in care of his attorney outlining ID's allegations against him and the findings made by ID as a result of its investigation. On the cover sheet of the "Findings Report" it stated in bold type the following:

You must file an answer to the attached Findings Report which must be received by the Commission within thirty (30) days of the issuance of the Findings Report. You must admit or deny in writing by corresponding number and letter the individual fact findings contained in the Findings Report. If you deny a finding of fact, you must state your denial plus set forth your view of the contested fact(s). Matters not specifically denied will be deemed admitted. Failure to respond or general denials will be considered a default and deemed an admission of the individual fact findings.

51 Pa. Code §21.5(k)(1).*fn1

Based on the date Eathorne received the Findings Report, he was required to file an answer on or before December 3, 2007.

Having received no answer from Eathorne, Chief Counsel for the Commission telephoned and sent a letter to counsel for Eathorne dated December 4, 2007, stating that Eathorne had failed to timely file an answer to the Investigative Complaint. The letter further explained that per the Ethics Act, 65 Pa. C.S. §1108, and the Commission Regulations, 51 Pa. Code §§21.5(k) and 21.21(a), Eathorne had agreed to the findings in the Investigative Complaint and had waived a hearing. The matter would then be submitted to the Commission for disposition. In response to that letter, via fax, Eathorne filed an answer on December 4, 2007.

The next day, December 5, 2007, Eathorne filed an application for permission to file an answer to the Investigative Complaint nunc pro tunc alleging that the complaint was issued on November, 2, 2007; received by him on November 5, 2007; was advised that the answer was due on or before December 3, 2007; but as a result of an administrative error, counsel inadvertently calculated the date to file as December 5, 2007. Eathorne further alleged that the one-day late filing would not prejudice any party to the action. ID filed an answer and new matter to Eathorne's application first stating that the statutorily imposed appeal and response periods at administrative levels were jurisdictional and could not be extended as a matter of grace. It then argued that the application should be denied because the sole reason claimed for missing the filing deadline was a miscalculation on the part of Eathorne's attorney who advised that the error was based upon his mistake. Both parties submitted a position statement outlining the merits of the case.

On December 28, 2007, the Commission issued an opinion and order denying Eathorne's application to file an answer nunc pro tunc stating the following:

In order for a late answer to be deemed timely filed, we apply the same civil standard as is applied by the courts to untimely appeals (see, Getz v. Pennsylvania Game Commission, 475 A.2d 1369 (Pa. Cmwlth. 1984) applying that standard in administrative proceedings to an untimely request for a hearing) (citations omitted). The standard is that to accept the untimely filing as if it were timely, there must either have been fraud or a breakdown in the administrative process (citation omitted) which includes the postal process (Getz) or there must have been unique and compelling factual circumstances establishing non-negligent failure to file timely (citation omitted). Mere delays in the U.S. mail, even during a holiday season, are considered foreseeable and avoidable and are insufficient grounds to support an Application Nunc Pro Tunc. (Citation omitted.)

We reject Respondent's argument that criminal standards may be applied in this civil administrative proceeding but in any event, Respondent's right to file an Answer to the Investigative Complaint was not lost due to extraordinary circumstances.

None of the conditions for allowing the filing of a late Answer is present in this case. In fact, there has not been any allegation of fraud, any breakdown in the administrative process or the mail delivery system, or any unique and compelling factual circumstances that would establish a non-negligent failure to timely file. The only argument that has been proffered is that an Answer was not timely filed by Respondent because Respondent's attorney failed to accurately calculate the filing deadline. That argument presents no basis for allowing the filing of a late Answer. Cf., In re Tenet Health Systems Bucks County, LLC, 880 A.2d 721 (Pa. Cmwlth. 2005) (Counsel's ...


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