April 7, 2011
DAVID SEROPIAN, PETITIONER
STATE ETHICS COMMISSION,
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 with the Commission's decision:
This adjudication of the [Commission] is issued under the
Ethics Act and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity of 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission.
(December Order at 1.) These instructions are consistent with the Ethics Act's and the Commission's reconsideration procedures; however, they provide a confusing description of those procedures. The Ethics Act addresses the finality of its orders, reconsideration, and the appeals process as follows. Sections 1108(f) and 1108(i) state, in pertinent part:
(f) Final order. -- Within 30 days of the receipt by the commission of the hearing record or, if no hearing is to be held, within 30 days of the receipt by the commission in the response to the findings report, the commission shall issue an order which shall be final. Upon receipt of a final order, the subject shall have the right to file a petition for reconsideration in accordance with the regulations of the commission.
(i) Appeal. - Any person aggrieved by an opinion or order which becomes final in accordance with the provisions of this chapter who has a direct interest in such opinion or order shall have the right to appeal therefrom in accordance with law and general rules.
65 Pa. C.S. § 1108(f) and (i) (emphasis added). Section 21.29 of the Commission's regulations provides:
§ 21.29. Finality; reconsideration.
(a) An order disposing of an investigation will be a final order when issued. Public release of the order will occur 30 days after the date of issuance, unless reconsideration is requested within that 30- day time period.
(b) Any party may ask the Commission to reconsider an order or opinion within 30 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.
(f) If the Commission grants reconsideration[,] the Commission may do one or more of the following:
(1) Order new hearings.
(2) Schedule and conduct oral argument.
(3) Take other action or issue an order or opinion in final disposition of the case.
(g) Pending reconsideration or request for reconsideration, an order will remain confidential.
(i) This section supersedes 1 Pa. Code §§ 35.231--35.233 and
35.241 (relating to reopening of record; and application for rehearing or reconsideration).
51 Pa. Code § 21.29 (emphasis added).
A close reading of the Commission's regulations reveals an ambiguity with regard to the effect of a request for reconsideration as described in subsection (c). The regulation states that a request for reconsideration "will not suspend the final order unless reconsideration is granted." 51 Pa. Code § 21.29(c) (emphasis added). It would appear, then, that if reconsideration is granted, then the final order will be "suspended." 51 Pa. Code § 21.29(c). Moreover, neither the Ethics Act nor the Commission's regulations expressly indicates how long the Commission retains jurisdiction to grant reconsideration thereby "suspending" the finality of a challenged order. Such omission is problematic where an aggrieved party's appeal rights under Section 1108(i) are based on an "order which becomes final in accordance with the provisions of the" Ethics Act, 65 Pa. C.S. § 1108(i), but the Commission's regulations appear to allow the Commission to suspend a final order upon the grant of reconsideration without any time restrictions, thereby extending the appeal period in which to challenge the underlying order.
The Commission's reconsideration regulations are in sharp contrast to other statutory and regulatory reconsideration procedures. For example, Section 35.241 of the General Rules of Administrative Practice and Procedure (GRAPP), 1 Pa. Code § 35.241, which would otherwise apply had Section 21.29 of the
Commission's regulations not superseded it,*fn6 provides an aggrieved party with fifteen days to file a reconsideration request and the agency with thirty days from the filing of the reconsideration request to act on that request when a petition for review has not been filed. In contrast, when a petition for review has been filed, the agency has only thirty days from the entry of the underlying order to grant reconsideration before losing jurisdiction. 1 Pa. Code § 35.241(e); Pa. R.A.P.
1701(b)(3). Thus, pursuant to the GRAPP, an agency could have as many as 45 days from the issuance of its order to grant reconsideration without being divested of jurisdiction where a petition for review is not filed. In contrast to the GRAPP's procedures, Section 5505 of the Judicial Code, 42 Pa. C.S. § 5505, expressly states that "[e]xcept as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within [thirty] days after its entry, . . . if no appeal from such order has been taken or allowed." Id. Thus, under the Judicial Code, even where an appeal is not filed, a court's jurisdiction to modify or rescind its orders lasts only thirty days after the entry of the order.
Despite its conduct in this matter, which indicates that the Commission believed it had jurisdiction to act on Seropian's Reconsideration Request, the Commission now takes the position that, regardless of whether a petition for review is filed, it is divested of jurisdiction thirty days after the mailing of the underlying order and cannot grant reconsideration after that period expires.*fn7 However, the Commission's reconsideration procedures do not clearly reflect this. Reading the Commission's regulations, an aggrieved party would not know that the Commission had any time limits on its jurisdiction to grant reconsideration. Nor is that information included in the notice sent with a final order advising the parties that they have thirty days to request reconsideration. Thus, the
Commission's regulations and the notice sent with a final order could lead an aggrieved party to believe that the Commission has an undefined amount of time to act on a reconsideration request and, ultimately, to "suspend" the finality of the underlying order. This results in an aggrieved party believing that he or she can file a reconsideration request on the thirtieth day attempting to seek review and suspend the finality of a challenged order, not knowing that, although the Commission's regulations allow for such filings, the Commission's authority to act on that request beyond that period is questionable.
The Commission's position, in association with its regulations, and the actions that occurred in this case, created a breakdown in the administrative process. We conclude that there was a breakdown in the administrative process here because: the agency's procedures are ambiguous; the agency, itself, acted on the Reconsideration Request in a manner that is inconsistent with its argument to this Court; and Seropian, who followed the procedures established by the agency, was unable to obtain the very relief purported to be available under those procedures. Furthermore, to the extent that the Commission asserts that Seropian's failure to understand the deadlines associated with seeking review of the December Order does not entitle him to nunc pro tunc review, we disagree. We believe that the Commission's regulations, as applied in this case, were unclear and inconsistent as to the Commission's authority and the consequences of its December Order.
For the foregoing reasons, we conclude that there was a breakdown in the administrative process that unintentionally misled Seropian as to the proper procedure to be followed to obtain review of the Commission's December Order, which held that he violated Section 1103(a) of the Ethics Act. This led to Seropian's belief that, pursuant to the Commission's procedures and actions, it had granted reconsideration and suspended the finality of the December Order. This, in turn, led to the untimely filing of his Petition for Review of that determination to this Court. Thus, in accordance with Miller and Walker, we hold that Seropian is entitled to nunc pro tunc relief. Miller, 570 A.2d at 1388; Walker, 381 A.2d at 1354. Because we hold that Seropian is entitled to nunc pro tunc relief as a result of the Commission's actions and its reconsideration procedures in this matter, we conclude that Seropian has "prevail[ed] 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), and, therefore, we will review the arguments set forth in Seropian's brief on the merits of his challenge to the December Order.
III. Merits of Seropian's Petition for Review
Seropian asserts multiple allegations of legal error and/or abuse of discretion regarding the December Order. Seropian argues that the Commission erred and/or abused its discretion by: (1) concluding that, were it not for the de minimis nature of a donation from a particular District vendor, Seropian would have violated Section 1103(a) of the Ethics Act and not deleting certain factual "findings" contained in the December Order that pertained to a charge that was nolle prossed;
(2) concluding that Seropian's conduct was not de minimis and, as such, constituted a violation of Section 1103(a); (3) erring in calculating the amount of restitution owed; (4) reviewing conduct that occurred outside the five-year statute of limitations period set forth in Section 1108(m), 65 Pa. C.S. § 1108(m); and (5) issuing an order that did not indicate that at least four members of the Commission found that Seropian violated the Ethics Act.
Section 1103(a) provides that "no public official or public employee shall engage in conduct that constitutes a conflict of interest." 65 Pa. C.S. § 1103(a).
The Ethics Act defines "conflict of interest" as "[u]se of a public official or public employee of the authority of his office or employment . . . for the private pecuniary benefit of himself." 65 Pa. C.S. § 1102. Section 1102 excludes from the definition of "conflict of interest" an action that has "de minimis economic impact." Id. "De minimis economic impact" is defined as "[a]n economic consequence which has an insignificant effect." 65 Pa. C.S. § 1102. The Commission bears the burden of proving a violation of the Ethics Act. Pulice v. State Ethics Commission, 713 A.2d 161, 162 (Pa. Cmwlth. 1998). In order to find a violation of the Ethics Act, at least four members of the Commission must find clear and convincing proof of a violation. Section 1108(g) of the Ethics Act, 65 Pa. C.S. § 1108(g). Clear and convincing proof is evidence that is "so clear, direct, weighty, and convincing that it enables the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts at issue." In re Adoption of Charles E.D.M., II, 550 Pa. 595, 601, 708 A.2d 88, 91 (1998) (quoting In re Adoption of Atencio, 539 Pa. 161, 166, 650 A.2d 1064, 1066 (1994)).
Seropian first argues that the Commission erred by concluding that, if it were not for the de minimis nature of the donation by Gerald Moore (Moore), President of Nutrition, Inc., a District vendor, to Seropian's candidacy for school board director, Seropian would have violated Section 1103(a). The Commission concluded that Seropian had used his position to solicit a donation from Moore because Seropian requested the donation while having lunch with Moore, but concluded that the pecuniary benefit from the donation was de minimis and, therefore, did not constitute a violation of Section 1103(a). Seropian further argues that the Commission should have deleted any references in the December Order to allegations of facts, or factual "findings," that related to certain charges against him that were ultimately nolle prossed.*fn8 With regard to these two arguments, the Commission asserts that the December Order was not adverse to Seropian in these regards, i.e., that such conduct did not violate the Ethics Act and, therefore, Seropian is not aggrieved and cannot appeal these specific findings. We agree with the Commission.
It is well settled that a party must be aggrieved in order to appeal a final governmental determination. Shaulis v. State Ethics Commission, 574 Pa. 680, 690, 833 A.2d 123, 129 (2003). Indeed, Section 1108(i) specifically requires that a person be "aggrieved by an opinion or order which becomes final." 65 Pa. C.S. § 1108(i). Here, the Commission held that Seropian's conduct with regard to Moore's contribution was not a violation of the Ethics Act as it did not constitute a "conflict of interest." Notwithstanding the Commission's reasoning for this determination, Seropian is not aggrieved by a determination that found that he did not violate the Ethics Act.
Further, to the extent that Seropian claims that the Commission should have deleted the findings related to the nolle prossed allegation, "[i]t is an elementary rule of appellate practice that one does not appeal a finding of fact of a tribunal but, rather, the order of the tribunal." Almeida v. Workers' Compensation Appeal Board (Herman Goldner Company), 844 A.2d 642, 644 (Pa. Cmwlth. 2004). Inasmuch as this particular charge was nolle prossed, Seropian prevailed and is not aggrieved by the Commission's December Order in this regard. Thus, Seropian cannot appeal or challenge these specific findings of fact in and of themselves. Id. at 644-45.
Seropian next challenges the Commission's determination that his conduct related to the use of his District-owned computer was not de minimis and, therefore, constituted a conflict of interest under Section 1103(a) and Bixler v. State Ethics Commission, 847 A.2d 785, 788 (Pa. Cmwlth. 2004). According to Seropian, his use of his District-owned computer for non-work-related activities for 780 minutes during the 2002-2003 and 2003-2004 school years, which resulted in the Commission ordering him to reimburse the District $640.11, clearly fell within the de minimis exclusion to the definition of "conflict of interest."*fn9 The Commission responds that Seropian's conduct is not de minimis because the 780 minutes of non-work-related computer usage represents fifty-two minutes per month. The Commission argues that it properly held that the amount it ordered Seropian to pay as restitution, $640.11, is not de minimis because it exceeded the amount this Court held as de minimis in Bixler, $561.77. Bixler, 847 A.2d at 788. For the following reasons, we agree with Seropian.
To support its decision, the Commission points to the fact that Seropian used the District's computer for personal, non-work-related purposes for approximately fifty-two minutes per month during the 2002-2003 and 2003-2004 school years. However, this equates to slightly more than two minutes per day based on twenty-
three working days per month. Although we recognize the Commission's discretion in interpreting the Ethics Act and appreciate its zeal, we cannot say that Seropian's use of his government-owned computer for approximately two minutes per day, for personal reasons that did not otherwise produce income or financial benefit to Seropian, is more than a de minimis action or that such conduct is a violation of the Ethics Act. Instead, we conclude that such use is incidental to his normal, work-related usage of the computer. Section 1101.1 of the Ethics Act states that its purpose is to "strengthen the faith and confidence of the people of this Commonwealth in their government, . . . [and] declare that the people have a right to be assured that the financial interests of holders of or nominees or candidates for public office do not conflict with the public trust." Section 1101.1 of the Ethics Act, 65 Pa. C.S. § 1101.1. We neither believe that Seropian's incidental usage of his District-owned computer in this manner violates the "faith and confidence of the people" nor "conflict[s] with the public trust." Id. Thus, we conclude that Seropian's action in using his District-owned computer for approximately two minutes per day as described above over a period of fifteen months falls within the de minimis exclusion to the definition of conflict of interest.*fn10 Accordingly, we find that the Commission erred in holding that Seropian's actions violated Section 1103(a) of the Ethics Act.*fn11
Accordingly, the Commission's April Order is vacated; however, Seropian's Petition for Review of the December Order is hereby reinstated nunc pro tunc. Having reviewed the merits of Seropian's Petition for Review, we reverse the Commission's December Order to the extent that it found that Seropian violated Section 1103(a) the Ethics Act and ordered Seropian to pay restitution.
RENEE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David Seropian, : Petitioner v. State Ethics Commission, : Respondent :
No. 948 C.D. 2010
NOW, April 7, 2011, the April 21, 2010, Order of the State Ethics Commission (Commission) is hereby vacated. However, David Seropian (Seropian) has established an entitlement to file his Petition for Review to this Court of the Commission's December 29, 2009, Order (December Order) nunc pro tunc and, therefore, we vacate this Court's Order of June 1, 2010, and reinstate Seropian's Petition for Review. Having reviewed the merits of the Petition for Review, we reverse the Commission's December Order to the extent that it found that Seropian violated Section 1103(a) of Public Official and Employee Ethics Act, 65 Pa. C.S. § 1103(a), and ordered Seropian to pay restitution.
RENEE COHN JUBELIRER, Judge