HomeMy WebLinkAbout1459 Complainant AIn Re: Complainant A File Docket:
This is a preliminary determination of the State Ethics Commission as to wrongful
use of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq.
Procedurally, the Investigative Division of the State Ethics Commission conducted a
preliminary inquiry under case number 07 -044 based upon alleged violation(s) of the
Ethics Act by an individual referred to herein as the "Subject." Following the preliminary
inquiry, the matter under case number 07 -044 was closed. Thereafter, the Subject sought
a finding as to wrongful use of the Ethics Act by the Complainant ( "Complainant A "),
alleging: (1) that the complaint was frivolous; (2) that the complaint was without probable
cause and made primarily for a purpose other than that of reporting a violation of the
Ethics Act; and (3) that Complainant A publicly disclosed or caused to be disclosed that a
complaint against the Subject had been filed with this Commission.
An investigative review was conducted as to wrongful use of act, and a report and
recommendation were submitted by the Investigative Division for consideration. Upon
review, this Commission adopts the recommendation of the Investigative Division and
preliminarily determines that there has not been a wrongful use of the Ethics Act in this
matter.
The Subject may appeal this preliminary determination to this Commission. 65
Pa.C.S. § 1110(c); 51 Pa. Code § 25.3(c)(2). Any such appeal must be in writing and must
be actually received at this Commission within thirty (30) days of the mailing date of this
preliminary determination, pursuant to 51 Pa. Code §§ 25.4(a), 11.1. If no timely appeal is
filed, this preliminary determination will become absolute and will become the final
determination of this Commission in this matter regarding wrongful use of the act, 51 Pa.
Code § 25.4(a), and will be released as a public document.
In the event of an appeal, an Order to Show Cause will be issued to the Subject
requiring the Subject to show cause why the rule should not be made absolute as to a
finding of no wrongful use of the act (65 Pa.C.S. § 1110(c); 51 Pa. Code § 25.4(b)(1)).
The Subject's answer to the rule must contain specific factual averments which establish a
basis for believing the Ethics Act was wrongfully used. One or more of the following shall
be inadequate to establish wrongful use of the Ethics Act: (1) the dismissal of the
complaint; (2) dismissal for lack of probable cause; or (3) dismissal on jurisdictional
rounds. 51 Pa. Code § 25.4(b)(1). Thereafter, a hearing may be held at which the
ubject bears the burden of proving wrongful use of the act by clear and convincing
evidence. 51 Pa. Code § 25.4(b)(2). This Commission will then make a final
determination.
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 A. Colafella
ID # 07 -097
LD # 07- 097 -WUA
Order No. 1459
1/28/08
2/15/08
In Re: Complainant A, 07- 097 -WUA
Page 2
I. FINDINGS:
1. At all times relevant to this matter, the Subject served as a Member of the School
District B ( "School District ") Board of Directors ( "School Board ").
2. Complainant A filed a sworn complaint with this Commission alleging that the
Subject had violated the Ethics Act when he used his public position as a School
Director to obtain a private pecuniary benefit for himself or businesses with which
he was associated when he participated in School Board discussions and actions to
authorize Corporation C to utilize School District property for after school programs
without paying rental fees to the School District at a time when the Subject was
involved in partnerships with Corporation C to provide after school programs.
3. Following a preliminary inquiry, the investigative proceedings as to the Subject were
closed, and the Subject filed with the Investigative Division a request to initiate a
wrongful use of act proceeding against the Complainant (Complainant A).
4. The Investigative Division's preliminary inquiry as to the Subject together with the
investigative review as to wrongful use of act have indicated that:
a. All of the factual allegations delineated in the complaint against the Subject
were accurate.
b. The Subject was not a principal or employee of Corporation C, and the
Subject did not have any financial interest in Corporation C; although the
Subject had no interest in Corporation C, the Subject was one of the original
incorporators of Corporation C; the Subject was a part owner of Corporation
D, a business operated by the owners of Corporation C, with the same
business address and mailing address as Corporation C; and the Subject
and the owners of Corporation C were joint owners of a property that was
leased by Corporation C.
c. The financial relationships between the Subject and the owners of
Corporation C at the time the Subject participated in School Board
discussions and actions to authorize Corporation C to utilize School District
property for an after school program without paying rental fees to the School
District were sufficient to form the basis for a reasonable belief that the
Subject had violated the Ethics Act.
d. The fact that the complaint was filed in close proximity to an election does
not establish that the complaint was filed primarily for a purpose other than
that of reporting a violation of the Ethics Act.
e. There is no evidence that Complainant A publicly disclosed or caused to
disclosed the fact that a complaint had been filed against the Subject with
this Commission.
II. DISCUSSION:
At all times relevant to this matter, the Subject served as a School Director for the
School District, and as such, the Subject was a public official subject to the provisions of
the Ethics Act.
Complainant A filed a complaint with this Commission against the Subject (case
number 07 -044) and the Investigative Division opened a preliminary inquiry. The
preliminary inquiry focused upon allegations that the Subject had violated the Ethics Act
In Re: Complainant A, 07- 097 -WUA
Page 3
when he used his public position as a School Director to obtain a private pecuniary benefit
for himself or businesses with which he was associated when he participated in School
Board discussions and actions to authorize Corporation C to utilize School District property
for after school programs without paying rental fees to the School District at a time when
the Subject was involved in partnerships with Corporation C to provide after school
programs.
Section 1103(a) of the Ethics Act prohibits a public official /public employee from
using the authority of his public position for the private pecuniary benefit of himself, a
member of his immediate family, or a business with which he or a member of his immediate
family is associated.
Factually, the Investigative Division's preliminary inquiry as to the Subject indicated
that: the Subject was not a principal or employee of Corporation C, and the Subject did not
have any financial interest in Corporation C; although the Subject had no interest in
Corporation C, the Subject was one of the original incorporators of Corporation C; the
Subject was a part owner of Corporation D, a business operated by the owners of
Corporation C, with the same business address and mailing address as Corporation C;
and the Subject and the owners of Corporation C were joint owners of a property that was
leased by Corporation C.
However, the preliminary inquiry failed to confirm that the Subject received any
specific private pecuniary benefit as a result of his vote to authorize Corporation C to use
the School District property without paying rental fees.
The base case having been closed, the Subject has now requested a determination
as to wrongful use of act by Complainant A, alleging: (1) that the complaint was frivolous;
(2) that the complaint was without probable cause and made primarily for a purpose other
than that of reporting a violation of the Ethics Act; and (3) that Complainant A publicly
disclosed or caused to be disclosed that a complaint against the Subject had been filed
with this Commission.
The elements of wrongful use of act are set forth in Section 1110 of the Ethics Act:
§ 1110. Wrongful use of chapter
(a) Liability - -A person who signs a complaint alleging
a violation of this chapter against another is subject to liability
for wrongful use of this chapter if:
(1) the complaint was frivolous, as defined by this
chapter, or without probable cause and made primarily for a
purpose other than that of reporting a violation of this chapter;
or
(2) he publicly disclosed or caused to be disclosed
that a complaint against a person had been filed with the
commission.
(b) Probable cause - -A person who signs a
complaint alleging a violation of this chapter has probable
cause for doing so if he reasonably believes in the existence of
the facts upon which the claim is based and either:
(1) reasonably believes that under those facts the
complaint may be valid under this chapter; or
In Re: Complainant A, 07- 097 -WUA
Page 4
(2) believes to this effect in reliance upon the advice
of counsel, sought in good faith and given after full disclosure
of all relevant facts within his knowledge and information.
65 Pa.C.S. §§ 1110(a) -(b).
The term "frivolous complaint" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Frivolous complaint." A complaint filed in a grossly
negligent manner without basis in law or fact.
65 Pa.C.S. § 1102.
The question before this Commission is whether the elements of a wrongful use of
act are met in the instant matter.
An objective observer could have reasonably concluded that, in participating in
School Board discussions and voting to authorize Corporation C to use the School District
property without paying rental fees, the Subject used the authority of his office for the
private pecuniary benefit of himself or a business with which he was associated in
contravention of Section 1103(a) of the Ethics Act.
It is our preliminary determination, under the facts and circumstances presented in
this case: (1) that the complaint against the Subject was not frivolous (filed in a grossly
negligent manner without basis in law or fact), as the Subject in fact had financial
relationships with the owners of Corporation C, including joint ownership of property
leased to Corporation C, which would seem to indicate that there was a financial nexus
between the Subject and Corporation C or its owners; (2) that the complaint was not
without probable cause and made primarily for a purpose other than that of reporting a
violation of the Ethics Act, as Complainant A had a reasonable belief that there was a
financial relationship between the Subject and Corporation C, and there is no evidence
that the complaint was made primarily for a purpose other than that of reporting a violation
of the Ethics Act, despite the fact that the complaint was filed in close proximity to an
election; and (3) there is no evidence that Complainant A publicly disclosed or caused to
be disclosed the fact that a complaint against the Subject had been filed with this
Commission.
The essential elements for a wrongful use of act have not been met in this matter.
III. CONCLUSIONS OF LAW:
1. At all times relevant to this matter, the Subject served as a School Director of the
School District, and as such, the Subject was a public official subject to the
provisions of the Ethics Act.
2. Under the facts and circumstances presented in this matter, there is no basis for
concluding that the complaint filed against the Subject (case number 07 -044) was
frivolous or was without probable cause and made primarily for a purpose other
than that of reporting a violation of the Ethics Act, or that Complainant A publicly
disclosed or caused to be disclosed the fact that a complaint against the Subject
had been filed with this Commission.
3. It is the preliminary determination of this Commission that Complainant A did not
wrongfully use the Ethics Act with respect to the complaint against the Subject
under case number 07 -044.
In Re: Complainant A, 07- 097 -WUA
Page 5
In Re: Complainant A File Docket:
Date Decided:
Date Mailed:
ORDER NO. 1459
ID # 07 -097
LD # 07- 097 -WUA
1/28/08
2/15/08
1 It is the preliminary determination of this Commission that Complainant A did not
wrongfully use the Ethics Act with respect to the complaint against the Subject
under case number 07 -044.
2. If no timely appeal is filed, this preliminary determination will become absolute and
will become the final determination of this Commission in this matter regarding
wrongful use of the act and will be released as a public document.
BY THE COMMISSION,
Louis W. Fryman, Chair