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G. L v. State Ethics Commission

March 17, 2011

G. L., PETITIONER
v.
STATE ETHICS COMMISSION, RESPONDENT



The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge

Argued: October 12, 2010

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY JUDGE COHN JUBELIRER

G.L. (Petitioner), a former member and president of a Borough (Borough) Council (Borough Council), petitions for review of the State Ethics Commission's (Commission) Order that denied Petitioner's Motion to Dismiss with Prejudice (Motion) the Ethics Complaint filed against him and of the Commission's Final Adjudication and Order, which found that Petitioner violated Section 1103(a) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa. C.S. § 1103(a), and directed Petitioner to pay restitution in the amount of $25,000.00 to the

Commonwealth of Pennsylvania. In the Ethics Complaint, Petitioner, the owner of a construction company (Company), was accused of violating the Ethics Act by, inter alia, using the authority of his public office for private pecuniary gain when he voted to grant final approval on a land development project (Project) in

December 2004 and signed certain documents as Borough Council President in June 2005, which allowed the Project, on which Company was involved, to proceed.*fn1 In the Motion, Petitioner sought to dismiss the Ethics Complaint in its entirety on the basis that the Commission's Investigative Division (ID) violated the strict timeframes of the Ethics Act by issuing an untimely Findings Report. On appeal, Petitioner argues that the Commission erred in: denying the Motion because the ID issued an Amended Findings Report outside the strict time frames set forth in the Ethics Act; and finding that Petitioner violated Section 1103(a) of the Ethics Act.

I. Motion to Dismiss

A. Factual Background

On or about February 26, 2007, the Commission received an Ethics Complaint against Petitioner alleging, inter alia, that, as Borough Council President and a member of the Borough Planning Commission (Planning Commission), Petitioner acted inappropriately with regard to the Project, on which his Company served as general contractor after the Project received final approval from Borough Council. On March 13, 2007, the ID initiated a preliminary inquiry into the Ethics Complaint, which was completed within sixty days of its initiation. On May 7, 2007, the ID sent Petitioner a certified letter advising him that it received an Ethics Complaint against him and that a full investigation had commenced. The ID requested two 90-day extensions, which the Commission granted. On April 2, 2008, the ID sent Petitioner an amended notice of investigation, informing Petitioner that the allegations set forth in the May 7, 2007, notice were being amended. On April 30, 2008, 359 days after the initiation of the investigation, the ID mailed a Findings Report to Petitioner (Initial Findings Report). The ID then mailed an Amended Findings Report to Petitioner on May 13, 2008 indicating, in relevant part, that "[i]f you have not yet answered the [Initial Findings Report], you only need to file an Answer to the Amended [Findings Report], as it supercedes [sic] the [Initial Findings Report]." (Amended Findings Report at 1, R.R. at 58a.) On June 3, 2008, the Commission granted Petitioner a 30-day extension to file his answer, which he filed on July 14, 2008, along with new matter and a request for a hearing. Thereafter, Petitioner filed the Motion, asserting that the Ethics Complaint should be dismissed based on the ID's failure to comply with the Ethics Act's time frames by issuing the Amended Findings Report more than 360 days after the initiation of the investigation. The Commission held hearings and, on December 29, 2009, mailed both the Order denying the Motion and the Final Adjudication to Petitioner, finding that Petitioner had violated Section 1103(a) and ordering him to pay restitution.

The Commission denied the Motion on the grounds that: (1) the ID's Initial Findings Report was issued within the 360-day period; (2) the Amended Findings Report was only an amendment to the Initial Findings Report, and the Ethics Act does not impose a deadline upon the filing of amended findings reports; and (3) pursuant to Section 35.48 of the General Rules of Administrative Practice and Procedure (GRAPP), 1 Pa. Code. § 35.48, and Salters v. Pennsylvania State Police Municipal Officers' Education and Training Commission, 912 A.2d 347 (Pa. Cmwlth. 2006), the Amended Findings Report was properly filed more than five days prior to a hearing. Moreover, the Commission noted that: Petitioner did not argue that the Amended Findings Report included any new allegation or cause of action or otherwise improperly exceeded the scope of the Initial Findings Report; the Amended Findings Report related back to the Initial Findings Report; and there is no basis in the record to conclude that the ID continued to investigate and compile evidence against Petitioner after the 360-day deadline had passed.

B. Discussion

There is no question that, had the ID not timely issued a Findings Report within the time period set forth in Section 1108(c) of the Ethics Act, 65 Pa. C.S. § 1108(c), this matter would not be before our Court. Thus, the question before us is whether the ID can amend a timely-filed Findings Report beyond that time period without violating the Ethics Act. This question appears to be an issue of first impression.

Petitioner argues that the Commission erred in denying the Motion based on its determination that the GRAPP applied and authorized the amendment of the timely-filed Initial Findings Report. Petitioner asserts that the plain language of the Ethics Act precludes the filing of a Findings Report, including any amendment thereto, more than 360 days after the initiation of an investigation and, therefore, the Ethics Act and the GRAPP conflict. According to Petitioner, because the Ethics Act and the GRAPP conflict, the Ethics Act's more restrictive provisions must apply here to preclude the amendment of the Initial Findings Report pursuant to Section 1112 of the Ethics Act, 65 Pa. C.S. § 1112, which provides that "if the provisions of [the Ethics Act] conflict with any other statute, ordinance, regulation or rule, the [Ethics Act] shall control." See also Section 1933 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1933 (stating that, where there is a conflict between two statutory provisions, the specific provision controls over the general provision). For its part, the Commission asserts that it properly allowed the ID to issue the Amended Findings Report for the reasons set forth in its decision, i.e., the Ethics Act does not prohibit amending a timely-filed Findings Report, the GRAPP and the Ethics Act do not conflict, and the GRAPP and Salters both allow for the amendment of pleadings, such as a findings report.

The GRAPP defines the general rules of practice and procedure before Commonwealth agencies, except where an applicable statute provides inconsistent rules or an agency promulgates regulations setting forth rules that are inconsistent with the GRAPP. 1 Pa. Code ยง 31.1; Tully v. Department of Public Welfare, 727 A.2d 1219, 1221 n.6 (Pa. Cmwlth. 1999). Section 35.48 of the GRAPP discusses ...


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