The opinion of the court was delivered by: Opinion BY Judge Cohn JUBELIRER*fn1
Submitted: October 22, 2010
BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge
David Seropian (Seropian) petitions for review of the December 29, 2009, and April 21, 2010, Orders of the State Ethics Commission (Commission). In the December 29, 2009, Order (December Order), the Commission found, in relevant part, that Seropian violated Section 1103(a) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa. C.S. § 1103(a), by using his work computer for non-work-related activities. In its April 21, 2010, Order (April Order), the
Commission denied Seropian's Request for Reconsideration of the December Order (Reconsideration Request). On appeal, Seropian asserts, inter alia, that the Commission had jurisdiction to issue the April Order and that, although his appeal of the December Order was untimely, he is entitled to a nunc pro tunc relief because there was a breakdown in the administrative process. Seropian further argues that the Commission erred and/or abused its discretion in finding that he violated Section 1103(a) of the Ethics Act.
Seropian worked as a business manager for the McKeesport Area School District (District) in Allegheny County since October 1997. On or about June 7, 2007, the Commission received a complaint asserting that Seropian violated the Ethics Act by using the authority of his public position for private pecuniary gain when he used his position to solicit campaign contributions from some of the District's vendors for his candidacy for school board director of the West Jefferson School District.*fn2 The complaint also alleged that Seropian used District facilities and equipment to solicit votes and contributions for his campaign. The Commission's Investigative Division (ID) notified Seropian on September 5, 2007, that it was commencing an investigation into the allegations. After granting the ID two extensions to continue its investigation pursuant to Section 1108(c) of the Ethics Act, 65 Pa. C.S. § 1108(c) (authorizing the Commission to grant up to two 90-day extensions to the ID), the Commission informed Seropian that it was amending the allegations against him to include his use of District facilities and equipment for the benefit of his position as the manager of a baseball team while being compensated by the District. The ID issued an investigative complaint on August 29, 2008, to which Seropian filed an answer. Seropian elected to proceed pro se in February 2009. The Commission held evidentiary hearings from July 13 through July 15, 2009.
Thereafter, the Commission issued the December Order, finding that Seropian violated Section 1103(a) of the Ethics Act by using District facilities and equipment for his personal benefit. The Commission held that Seropian violated Section 1103(a) of the Ethics Act by using his District-owned computer to: send and receive approximately thirty emails regarding his baseball team and save approximately forty-nine documents related to that team between February 2, 2004, and March 23, 2005; send a mass e-mail soliciting votes on May 14, 2007, and save several documents related to his political campaign between April 10, 2007, and September 18, 2007; and access, during his normal work hours, non- work-related websites for a total of 721 minutes for the 2002-2003 school year and 59 minutes for the 2003-2004 school year.*fn3 (December Order at 39-42.) The
Commission ordered Seropian to pay restitution in the amount of $640.11, which represented the compensation Seropian received for the 780 minutes he accessed non-work-related materials on his District-owned computer during his normal working hours in the 2002-2003 and 2003-2004 school years. (December Order at 42.) However, the Commission held that Seropian did not violate Section 1103(a) by soliciting campaign donations from District vendors either because there was no basis to conclude that he solicited or requested the donations or, in one instance, because the pecuniary benefit received from the donation fell within the de minimis exclusion to the Ethics Act's "conflict of interest" provision. See Section 1102 of the Ethics Act, 65 Pa. C.S. § 1102, (specifically excluding from the definition of "conflict of interest" those actions that have de minimis economic impact).
II. Reconsideration Petition and Appeal to this Court
On January 26, 2010, Seropian filed with the Commission his Reconsideration Request of the December Order. (Letter from Seropian to Commission (January 26, 2010), R.R. at 78a-87a.) The Commission mailed Seropian a letter, dated February 2, 2010, indicating that it received his Reconsideration Request, oral argument would be held on the Reconsideration Request, and the ID could file an answer by February 22, 2010. (Letter from Commission to Seropian (February 2, 2010), R.R. at 88a.) The Commission notified Seropian on February 18, 2010, that oral argument on the Reconsideration Request would be held on March 25, 2010. (Letter from Commission to Seropian (February 18, 2010), R.R. at 89a.) After the hearing, the Commission issued the April Order and opinion, purporting to deny reconsideration, but nonetheless explaining why it did not err or abuse its discretion in the December Order. Seropian, now represented by counsel, filed with this Court a Petition for Review on May 19, 2010, challenging both the December Order and the April Order.*fn4 The Commission filed a Motion to Quash Seropian's Petition for Review of the December Order as untimely, which this Court granted by Order dated June 1, 2010. This Court denied reconsideration of its June 1, 2010, Order by Order dated June 17, 2010. The June 17, 2010, Order also stated:
In light of this Court's decision in City of Philadelphia Police Department v. Civil Service Commission, 702 A.2d 878 (Pa. Cmwlth. 1997), the parties shall discuss in their principal briefs on the merits respondent's jurisdiction to act on the request for reconsideration after the appeal period had passed and respondent's order of December 29, 2009 became final. See Pa. R.A.P. 1701(b)(3).
Seropian v. State Ethics Commission, (Pa. Cmwlth. No. 948 C.D. 2010, filed June 17, 2010). Thereafter, Seropian filed his brief with this Court arguing, inter alia, the merits of the December Order and asserting that this Court should allow him to appeal the December Order based on his entitlement to nunc pro tunc relief. The Commission filed a Motion to Quash or Strike portions of Seropian's brief that purported to appeal the December Order.*fn5 This Court denied the Commission's Motion on September 16, 2010, stating that "[i]n light of this Court's order dated June 17, 2010, the arguments in petitioner's brief relative to the Commission's [December Order] shall be reviewed by the Court only in the event that petitioner prevails on his argument relating to the Commission's reconsideration procedure."
Seropian v. State Ethics Commission, (Pa. Cmwlth. No. 948 C.D. 2010, filed September 16, 2010).
Seropian makes two arguments regarding the Commission's reconsideration procedures that would allow this Court to review the December Order and April Order: (1) that the Commission implicitly granted his Reconsideration Request through its conduct; and (2) that there was a breakdown in the administrative process entitling Seropian to nunc pro tunc relief.
Seropian first argues that the Commission's actions in this case essentially constituted a grant of reconsideration such that the Commission retained jurisdiction. The Commission responds that the April Order should be vacated on the grounds that it was void ab initio because the Commission did not have jurisdiction to issue the April Order because almost four months had passed since the issuance of the December Order and it did not expressly grant the Reconsideration Request. We agree with the Commission that it did not have jurisdiction to issue the April Order almost four months after it issued the December Order absent an express grant of reconsideration. See Schoff v. Richter, 562 A.2d 912, 913 (Pa. Super. 1989) (stating that in order for an order granting reconsideration to be effective, the order must, inter alia, expressly grant reconsideration). Accordingly, we vacate the April Order.
However, this leaves Seropian's alternative argument that he is entitled to nunc pro tunc review of the December Order because the Commission's reconsideration procedures, the Commission's actions, and the wording of the December Order demonstrate a breakdown in the administrative process. For support, Seropian points to the instructions for seeking review that the Commission provided in the December Order, as well as the Commission's actions in: sending the February 2, 2010, letter indicating that it was scheduling argument; permitting the ID to file an answer by February 22, 2010; holding oral argument on March 25, 2010, at which both Seropian and the ID participated; and issuing the April Order that "denied" the Reconsideration Request, notwithstanding the fact that the Commission issued an opinion that reviewed the merits of the December Order and rejected all of the bases Seropian asserted for reconsideration.
In response to Seropian's request for nunc pro tunc relief, the Commission asserts that Seropian is not entitled to such relief because he has failed to establish that the Commission perpetrated any fraud in issuing the December Order. (Commission's Br. at 23.) The Commission contends that this Court has twice denied Seropian's request for appellate review of the December Order and that, pursuant to West Penn Power Company v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975), "the time for taking an appeal cannot be extended as a matter of grace." According to the Commission, it had no legal obligation to set forth the procedures for filing an appeal from the December Order and Seropian's failure to understand the time deadlines for filing an appeal is insufficient to establish that the Commission perpetrated a fraud such that Seropian would be entitled to nunc pro tunc relief.
The Commission is correct that "appeal periods at the administrative level are jurisdictional and may not be extended as a matter of grace." Aliseo v. Crime Victim's Compensation Board, 660 A.2d 224, 225 (Pa. Cmwlth. 1995). However, "the extension of such periods may be granted where there is fraud or a breakdown in the administrative process." Id. at 225-26 (emphasis added). Thus, fraud is not the only reason to grant nunc pro tunc relief. Furthermore, the Commission is correct that due process "does not even require an administrative agency to provide a party with notice of the right to appeal the agency's decision when the agency or the Legislature . . . has provided a duly published procedure for a hearing or appeal after such order." Walker v. Unemployment Compensation Board of Review, 381 A.2d 1353, 1354 (Pa. Cmwlth. 1978). This Court recognized in Walker, however, that "notice of appeal procedures supplied by an administrative agency which mislead a party and result in the filing of an untimely appeal may furnish adequate grounds for a nunc pro tunc appeal of the agency's decision." Id. This latter principle was reiterated in Monroe County Board of Assessment Appeals v. Miller, 570 A.2d 1386, 1388 (Pa. Cmwlth. 1990), in which this Court stated that "an appeal nunc pro tunc may be granted where a litigant is unintentionally misled by officials as to the proper procedure to be followed."
The December Order provided Seropian with the following instructions for seeking review if he disagreed ...