HomeMy WebLinkAbout1407-2 Complainant AIn Re: Complainant A File Docket:
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 # 05 -046
LD # 05- 046 -WUA (A &B)
Order No. 1407 -2
1/28/08
2/15/08
The Investigative Division of the State Ethics Commission conducted an
investigation regarding a possible wrongful use of act and breach of confidentiality under
the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., by
the above -named "Complainant." Written notice of the specific allegations was served at
the commencement of the investigation. Upon completion of the investigation, the
Investigative Division issued and served upon Complainant a Findings Report identified as
an "Investigative Complaint," which constituted the Investigation Division's Complaint
against the Complainant. An Answer was not filed and a hearing was deemed waived. On
August 8, 2006, Order 1407 was issued by the Commission, which included: (1) a final
determination that the Complainant violated Section 1108(k) of the Ethics Act (pertaining to
breach of confidentiality); and (2) a preliminary determination that the Complainant did not
violate Section 1110(a)(2) of the Ethics Act (pertaining to wrongful use of the act).
1407.
The Complainant did not appeal either of the aforesaid determinations of Order
The "Subject," the person against whom the original Complaint was filed, appealed
to this Commission the preliminary determination of no wrongful use of the act. An Order
to Show Cause was issued to the Subject, and an Answer to the Order to Show Cause was
filed. A hearing was held, at which the Subject bore the burden of proving wrongful use of
act by clear and convincing evidence. 51 Pa. Code § 25.4(b)(2). The record is complete.
Because the Ethics Act provides that only final orders of the Commission shall be
available as public documents, 65 Pa.C.S. § 1108(h), this Order includes: (1) the final
determination of Order 1407 as to the Complainant's violation of Section 1108(k) of the
Ethics Act; and (2) the final determination as to wrongful use of act.
The files in this case will remain confidential in accordance with Section 1108 of the
Ethics Act, 65 Pa.C.S. § 1108. Any person who violates confidentiality of the Ethics Act is
guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not
more than one year, 65 Pa.C.S. § 1109(e). Confidentiality does not preclude discussing
this case with an attorney at law.
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 2
ALLEGATIONS AS SET FORTH IN ORDER 1407:
That Complainant A violated the following provisions of the State Ethics Act (Act 93
of 1998) when she disclosed or caused to be publicly disclosed the existence of an
investigation of Public Official B.
Section 1108. Investigations by commission
(k) Confidentiality. —As a general rule, no person
shall disclose or acknowledge, to any other person, any
information relating to a complaint, preliminary inquiry,
investigation, hearing or petition for reconsideration which is
before the commission. However, a person may disclose or
acknowledge to another person matters held confidential in
accordance with this subsection when the matters pertain to
any of the following:
(1) final orders of the commission as provided in
subsection (h);
(2) hearings conducted in public pursuant to
subsection (g);
for the purpose of seeking advice of legal
counsel;
(3)
(4) filing an appeal from a commission order;
(5) communicating with the commission or its staff,
in the course of a preliminary inquiry,
investigation, hearing or petition for
reconsideration by the commission;
(6) consulting with a law enforcement official or
agency for the purpose of initiating, participating
in or responding to an investigation or
prosecution by the law enforcement official or
agency;
(7)
testifying under oath before a governmental
body or a similar body of the United States of
America;
(8) any information, records or proceedings relating
to a complaint, preliminary inquiry, investigation,
hearing or petition for reconsideration which the
person is the subject of; or
such other exceptions as the commission by
regulation may direct.
(
65 Pa. C. S. § 1108(k).
Section 1110. Wrongful use of chapter
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 3
(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:
(2) he publicly disclosed or caused to be disclosed
that a complaint against a person had been filed
with the commission.
65 Pa.C.S. § 1110(a)(2).
II. FINDINGS:
A. Findings from Order 1407
1. The Investigative Division of the State Ethics Commission received information
alleging that an unnamed individual violated provisions of the State Ethics Act (Act
93 of 1998).
2. Upon review of the complaint the Investigative Division initiated a preliminary
inquiry on October 24, 2005.
3. The preliminary inquiry was completed within sixty days.
4. On December 22, 2005, a letter was forwarded to Complainant A, by the
Investigative Division of the State Ethics Commission informing her that a complaint
against her was received by the Investigative Division and that a full investigation
was being commenced.
a. Said letter was forwarded by certified mail, no. 7004 0750 0002 8074
7445.
b. The domestic return receipt bore the signature of Individual C, with a
delivery date of December 24, 2005.
5. Periodic notice letters were forwarded to Complainant A in accordance with the
provisions of the Ethics Law advising him [sic] of the general status of the
investigation.
6. The Investigative Complaint was mailed to the Respondent on June 20, 2006.
7 Complainant A is a private individual who resides in [name of municipality], [name
of county], Pennsylvania.
8. On February 7, 2005, the Investigative Division of the State Ethics Commission
received a signed sworn complaint alleging violations of the Ethics Act by Public
Official B and his staff.
a. The complaint was signed by Complainant A.
b. Complainant A was employed by Public Official B from [date] until [date].
c. This complaint was notarized by [name of notary], [name of municipality],
[name of county] on February 3, 2005.
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 4
9. On February 7, 2005, John Contino, Executive Director of the State Ethics
Commission advised Complainant A by a letter that no action could be taken
because the complaint was deemed to be incomplete.
10. On February 16, 2005, the Investigative Division of the State Ethics Commission
received a signed sworn complaint alleging that Public Official B and his Staff at the
[governmental office] violated provisions of the State Ethics Act.
a. This complaint was notarized by [name of notary], [name of municipality],
[name of county] on February 11, 2005.
1. [name of notary] is the [family relationship] of Individual D.
b. The complaint was signed by Complainant A.
c. The return address on the envelope listed the following:
Post Office Box Address E
1. Pennsylvania Department of State Corporation Bureau records
identify the address as being the registered office address for
Business F which lists Individual D as the Corporate Officer G.
2. Individual D is the only individual with access to Post Office Box
Address E.
3. In 2005 Individual D was challenging Public Official B for Public
Office H.
11. Both the February 7, 2005, and February 16, 2005, complaints were filed on Form
SEC -3 5/90 which contain[s] instructions for filing and provisions of the law related
to investigations.
a. Included is information regarding the confidentiality provisions of the
Ethics Act as stated in Section 8(k), Section 9 and Section 10 *.
b. Any person filing a complaint with the State Ethics Commission should be
aware of the following provisions of the Ethics Law *.
Section 8
(k) As a general rule, no person shall disclose or acknowledge, to any
other person, any information relating to a complaint, preliminary
inquiry, investigation, hearing or petition for reconsideration which is
before the commission. However, a person may disclose or
acknowledge to another person matters held confidential in
accordance with this subsection when the matters pertain to any of
the following:
final orders of the commission as provided in subsection (h);
hearings conducted in public pursuant to subsection (g);
for the purpose of seeking advice of legal counsel;
filing an appeal from a commission order;
communicating with the commission or its staff, in the course
of a preliminary inquiry, investigation, hearing or petition for
reconsideration by the commission;
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 5
(6) consulting with a law enforcement official or agency for the
purposes of initiating, participating in or responding to an
investigation or prosecution by the law enforcement official or
agency;
(7) testifying under oath before a governmental body or a similar
body of the United States of America;
(8) any information, records or proceedings relating to a
complaint, preliminary inquiry, investigation, hearing or petition
for reconsideration which the person is the subject of; or
(9) such other exceptions as the commission, by regulation, may
direct
Section 9
(a) Any person who violates the confidentiality provision of a commission
proceeding pursuant to Section 8, is guilty of a misdemeanor and
shall be fined not more than $1,000 or imprisonment for not more than
one year, or be both fined and
(b) Imprisoned. Any person who engages in retaliatory activity
proscribed by section 1108(j) is guilty of a misdemeanor and, in
addition to any other penalty provided by law, shall be fined not more
than $1,000 or imprisonment for not more than one year, or both fined
and imprisoned. Any person who willfully affirmed or swears falsely in
regard to any material matter before a commission proceeding
pursuant to section 8 is guilty of a felony and shall be fined no more
than $5,000 or imprisoned for not more than five years, or both fined
and imprisoned.
Section 10
(a) A person who signs a complaint alleging a violation of this act against
another is subject to liability for wrongful use of this act if:
(1) the complaint was frivolous, as defined by this act, or without
probable cause and made primarily for a purpose other than
that of reporting a violation of this act; or
(2) he publicly disclosed or caused to be disclosed that a
complaint against a person had been filed with the
commission.
(b) A person who signs a complaint alleging a violation of this act 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 act; or
(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.
12. On July 27, 2005, the Investigative Division of the State Ethics Commission
commenced a preliminary inquiry regarding the allegations made against Public
Official B by Complainant A.
a. During the preliminary inquiry an interview was conducted with Complainant
A by investigators for the State Ethics Commission.
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 6
13. Interviews were conducted by an Ethics Commission Investigator with Complainant
A on August 2 and 25, 2005.
a. Complainant A was the only individual interviewed during the preliminary
inquiry.
14. When interviewed Complainant A was provided with a State Ethics Commission
confidentiality card which includes verbatim Section 8(k) of the Ethics Act and the
penalty for violating the confidentiality of a Commission proceeding.
PENALTY
Any person who violates the confidentiality of a commission proceeding pursuant to
the foregoing is guilty of a misdemeanor and shall be fined not more than $1,000 or
imprisoned for not more than one year, or both fined and imprisoned.
You are not prohibited from consulting with your attorney regarding the subject
matter of the inquiry.
15. Complainant A was employed as a [type of governmental employee] for Public
Official B from [date] until [date].
a. Complainant A worked out of the [location] [governmental office].
16. On August 2 and 25, 2005, Complainant A was interviewed by an Ethics
Commission Investigator.
a. During the interviews Complainant A stated that she performed campaign
work on the computer at the [location] office.
b. Complainant A suggested the investigator obtain the computer she used at
the [location] [governmental office] of Public Official B along with the
computers used by Public Official B's [type of governmental employee]
Individual I and Individual J as they would have campaign information on
them.
c. Complainant A advised the best day to secure the computers at Public
Official B's [governmental office] would be on a Tuesday.
d. Complainant A claimed that in prior years Public Official B had received new
computers for his [governmental office] in [month] so the computers needed
to be obtained as soon as possible.
e. Complainant A was advised that the computers could only be obtained by
subpoena which could not be obtained by the Investigative Division of the
Ethics Commission during the preliminary inquiry.
17. On Significant Date 1, a letter was sent to Complainant A from Executive Director
John Contino of the State Ethics Commission informing Complainant A the
Investigative Division of the State Ethics Commission had initiated a full
investigation in relation to the complaint she filed against Public Official B.
a. Complainant A received the letter on or about Monday, Significant Date 2.
18. Complainant A has cellular telephone service through Sprint with a cellular
telephone number of Telephone Number 1.
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 7
a. The billing telephone number for this account is listed as Telephone Number
2
1. This is the home telephone number for Complainant A.
19. On Tuesday, Significant Date 3, at approximately 9:23 a.m. Complainant placed a
call to the Pittsburgh office of the State Ethics Commission.
a. Complainant A's cell phone records for Telephone Number 1 on Significant
Date 3 list a call being made to the Pittsburgh Regional Office of the State
Ethics Commission at 9:23 a.m. for one minute.
b. When Complainant A called the Pittsburgh Regional Office, she asked for
Special Investigator Gregory Curran and when advised he was in the field,
she left no message or reason for the call stating she would call later.
20. Immediately after calling the offices of the Ethics Commission on Significant Date 3,
Complainant A's cell phone records reflect calls made to Telephone Number 3 at
9:24 a.m., 9:29 a.m. and 9:32 a.m. and a call made to Telephone Number 4 at 9:32
a.m.
a. Telephone Number 3 is the cellular telephone number of Individual D.
1. Billing records for Verizon Wireless reflect Individual D as being the
user name for cellular Telephone Number 3.
aa. During a sworn statement to Commission Investigators on
February 15, 2006, Individual D confirmed that Telephone
Number 3 was the primary cell telephone number that he used.
b. Telephone Number 4 is Individual D's business telephone number.
1. The web site www.whitepages.com list[s] Telephone Number 4 as
being for the business of Business F is [sic] owned and operated by
Individual D.
21. Immediately after Complainant A's calls to Individual D on Significant Date 3,
Individual D's cell phone records for Telephone Number 3 reflect a call being made
at 9:34 a.m. to Telephone Number 6 which is the main number for News
Organization K, the local [name of municipality] newspaper.
22. On Tuesday, Significant Date 3, at approximately 9:35 a.m. the Investigative
Division of the State Ethics Commission served a subpoena at the [governmental
office] of Public Official B in [name of municipality], Pennsylvania for all computers
assigned to Public Official B and used by his [type of governmental employees]. **
a. The computers subpoenaed were the same as those mentioned by
Complainant A during the August 2005 interviews with Mr. Curran.
23. On Significant Date 3, at 9:50 a.m., fifteen minutes after investigators for the SEC
arrived at Public Official B's [governmental office], a call was placed to a News
Organization L reporter at Telephone Number 7 from Individual D's business office
telephone.
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 8
a. News Organization L Reporter M's cell phone records for Telephone Number
7 confirm an incoming call from Telephone Number 4, the business office of
Individual D at 9:50 a.m. on Significant Date 3.
b. Billing records for Verizon Wireless reflect Telephone Number 7 as being a
cellular number for News Organization L assigned to Reporter M, the
reporter in [name of municipality].
24. On Significant Date 3 at approximately 10:20 a.m., Reporter M arrived at the
[governmental office] of Public Official B while investigators for the Investigative
Division of the Ethics Commission were serving the subpoena. **
a. Reporter M was seeking comments regarding the presence of Commission
Investigators.
1. Reporter M observed computers being removed from Public Official
B's [governmental office].
b. No comments were made from either the Investigative Division or Public
Official B office staff.
c. Reporter M left the [governmental office] at approximately 10:21 a.m.
d. The investigators departed the [governmental office] of Public Official B at
approximately 10:30 a.m.
25. A Reporter M article was published in the Publication of News Organization L on
[the day after Significant Date 3], in which he wrote that State Ethics Commission
Agents collected a computer at the [name of municipality] [governmental office] of
Public Official B from Individual 1, [job title].
26. During a sworn statement to Commission Investigators on February 15, 2006,
Individual D provided the following information:
a. Individual D admitted contacting News Organization K and News
Organization L on the matter involving the [governmental office] of Public
Official B.
b. Individual D claimed he tried to contact as many members of the media that
he could on advising them to go to the [governmental office] of Public Official
B.
c. Individual D claimed he received a tip from the newspapers.
27. During a sworn statement to Commission Investigators on March 2, 2006, Reporter
M provided the following information:
a. Reporter M received the tip that led him to the [governmental office] of Public
Official B on Significant Date 3, from a call to his cell phone Telephone
Number 7 at approximately 9:45 a.m.
1. Reporter M received no other tips other than this call.
2. No other reporters were involved in the story.
b. The tip provided to Reporter M was that computers were being taken from
the [governmental office] of Public Official B.
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 9
28. Reporter M's cell phone records for Significant Date 3 reflect the first call he
received was an incoming call at 9:50 a.m. from Telephone Number 4 lasting 53
seconds.
Time
a. The telephone number of Telephone Number 4 is for Business F, a business
owned and operated by Individual D.
29. Complainant A was aware that computers from the [governmental office] of Public
Official B could possibly be subpoenaed by Commission investigators.
a.
b.
c.
Complainant A's knowledge was based on her interviews with Commission
investigators on August 2, 2005, and August 22, 2005.
Complainant A recommended that investigators go to Public Official B's
office on a Tuesday due to his travel to [location] on that day of the week.
Significant Date 3 was a Tuesday.
30. Complainant A is a friend of Individual D and his wife.
a. Complainant A became friends with Individual D and his wife after she left
the employment of Public Official B's [governmental office] in [year].
31. The complaint filed by Complainant A against Public Official B with the Ethics
Commission contained a return address for a business owned by Individual D
(Finding #10).
32. The following reflects the sequence of calls between Complainant A and Individual
D on the morning of Significant Date 3 to each other and reporters before, during
and after the service of the subpoena by the Investigative Division at the
[governmental office] of Public Official B.
9:13:45 AM
9:23 AM
9:24:34 AM
9:30:04 AM
9:30:48 AM
9:31:18 AM
9:31:48 AM
9:32 AM
9:32:59 AM
9:34:22 AM
Person
Making CaII
Individual D
Complainant A
Complainant A
Complainant A
Complainant A
Complainant A
Complainant A
Complainant A
Complainant A
Individual D
9:43:14 AM Individual D
9:50:49 AM Individual D
9:52:42 AM Individual D
9:53:23 AM Individual D
9:54:32 AM Complainant A
10:05:22 AM Individual D
Number Called
Telephone No. 1
(412) 635 -2816
Telephone No. 3
Telephone No. 3
Telephone No. 3
Telephone No. 3
Telephone No. 3
Telephone No. 4
Telephone No. 3
Telephone No. 6
Telephone No. 8
Telephone No. 7
Telephone No. 1
Telephone No. 2
Telephone No. 3
Telephone No. 1
Length
CaII Destination of CaII
Complainant A 23 Seconds
Ethics Commission 1 Minute
ndividua D 49 Seconds
ndividua D 34 Seconds
ndividua D 19 Seconds
ndividua D 23 Seconds
ndividua D 26 Seconds
ndividua D 1 Minute
ndividua D 3 Seconds
News Organi-
zation K
Individual N,
Editor of News
Organization K
Reporter M
Reporter for News
Organization L
Complainant A
Complainant A
Individual D
Complainant A
55 Seconds
34 Seconds
53 Seconds
31 Seconds
33 Seconds
75 Seconds
59 Seconds
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 10
10:06:30 AM Individual D
10:07:07 AM Individual D
10:14:42 AM Individual D
10:18:13 AM Individual D
10:23:02 AM Complainant A
10:30:23 AM Individual D
10:39:37 AM Reporter M
10:40:29 AM Reporter M
10:40:52 AM Individual D
10:56:52 AM Reporter M
10:59:59 AM Individual D
11:27:42 AM Complainant A
11:53:21 AM Complainant A
11:54 AM Complainant A
12:46 PM Complainant A
1:03 PM Complainant A
1:27:31 PM Reporter M
1:37:04 PM Complainant A
1:38:23 PM Individual D
1:39:33 PM Complainant A
1:44:49 PM Complainant A
Telephone No. 6
Telephone No. 6
Telephone No. 6
Telephone No. 1
Telephone No. 3
Telephone No. 9
Telephone No. 4
Telephone No. 3
Telephone No. 7
Telephone No. 3
Telephone No. 2
Telephone No. 3
Telephone No. 3
(412) 635 -2816
(412) 635 -2816
(412) 635 -2816
Telephone No. 2
Telephone No. 3
Telephone No. 1
Telephone No. 3
Telephone No. 7
News Organi-
zation K
News Organi-
zation K
News Organi-
zation K
Complainant A
Individual D
Individual N
Editor of News
Organization K
Individual D
Individual D
Reporter M
Individual D
Complainant A
Individual D
Individual D
Ethics Commission
Ethics Commission
Ethics Commission
Complainant A
Individual D
Complainant A
Individual D
Reporter M
28 Seconds
40 Seconds
158 Seconds
26 Seconds
54 Seconds
26 Seconds
40 Seconds
13 Seconds
13 Seconds
88 Seconds
39 Seconds
47 Seconds
45 Seconds
1 Minute
1 Minute
1 Minute
49 Seconds
52 Seconds
7 Seconds
133 Seconds
42 Seconds
33. Complainant A's and Individual D's cell phone records were reviewed from August
2005 until January 2006.
a. At no time other than the morning of Significant Date 3 is there the same
frequency of calls made between Complainant A and Individual D.
34. During sworn statements to Commission Investigators on December 7, 2005, and
May 31, 2006, Complainant A provided the following information:
a. Complainant A denied disclosing to anyone the Ethics Commission's
investigation of Public Official B.
b. Complainant A claimed she did not disclose to Individual D that the Ethics
Commission was going to serve a subpoena at the [governmental office] of
Public Official B.
c. Complainant A claimed that News Organization L Reporter M called her in
the morning of Significant Date 3 and came to her house later in the day.
1. During a sworn statement to Commission Investigators on March 2,
2006, Reporter M testified that he never contacted Complainant A
until after 12:00 p.m.
35. Complainant A disclosed her knowledge of an Ethics Commission investigation
against Public Official B to Individual D who in turn contacted the media.
a. Complainant A was the only witness that [sic] had knowledge that a
subpoena could be issued at some time by the Ethics Commission to be
served at the [governmental office] of Public Official B for computers.
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 11
1. Complainant A called the offices of the State Ethics Commission on
Tuesday, Significant Date 3 to determine if members of the
Investigative Division were in the office.
aa. Complainant A made this call after receiving a letter from the
Ethics Commission informing her that a full investigation had
been initiated against Public Official B and because she
provided the suggestion that Tuesday was the best day to
serve the subpoena.
b. The tip provided to Reporter M that computers were going to be removed
from the [governmental office] of Public Official B came from Individual D
after he received information from Complainant A.
1. Individual D was involved in the filing of the complaint with
Complainant A.
[ *Finding 11, which is reproduced as it appears in the Investigative Complaint,
contains minor typographical errors and errors in statutory section numbers.
* *In that Finding 22 states that the Investigative Division served the subpoena at
Public Official B's [governmental office] in [name of municipality] at approximately
9:35 a.m. on Significant Date 3, while Finding 24 indicates that the subpoena was
being served at approximately 10:20 a.m. on that date, we accept the time of actual
service of the subpoena as that more favorable to Complainant A, which is the time
of approximately 9:35 a.m.]
B. Findings from Appeal Hearing as to Section 1110(a)(2)
36. Witness A and Public Official B ( "the Subject ") have been political adversaries.
a. Witness A testified that on Tuesday, Significant Date 3, he received a
telephone call from someone who told him that something was happening at
the office of Public Official B.
(1) Witness A testified that he does not know who the aforesaid caller
was.
(2) Witness A testified that he believes the caller indicated that the
State" was at Public Official B's office.
(3)
Witness A testified that when he received the telephone call, his
original assessment was that representatives from the Office of
Attorney General were at the Subject's office.
(4) Witness A testified that he had initiated matter(s) with the Office of
Attorney General and had also met with the FBI regarding the
Subject.
Witness A testified that on Tuesday, Significant Date 3, at the time he
received the aforesaid call, he was not aware of other matter(s)
involving the Subject.
(6) Witness A testified that at the time he received the aforesaid call, he
did not know that State Ethics Commission investigators were at the
Subject's office.
(5)
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 12
b. Witness A testified that on Tuesday, Significant Date 3, after receiving the
telephone call that something was happening at the Subject's office, he
(Witness A) called many other people, including reporters.
(1) Witness A testified that he believes he told reporters that the State
Attorney General was at the Subject's office.
(2) Witness A testified that he never told any news reporter at any time
that Ethics Commission investigators were at the Subject's office.
c. Witness A testified that based upon information he received from a reporter,
he (Witness A) came to an understanding that the persons from the State"
who were at the Subject's office were from the State Ethics Commission, not
from the Office of Attorney General.
d. Witness A testified that he did not discuss events surrounding the complaint
filed with the State Ethics Commission against the Subject with anyone
except State investigators and his own attorney.
37. [Name of notary] notarized the complaint filed by Complainant A with the State
Ethics Commission against the Subject. (See, Fact Finding 10).
a. The person who presented the complaint for notarization was the same
person whose name was notarized, and no one else was present at the time.
38. Individual D testified that on Tuesday, Significant Date 3, he received an
anonymous telephone call from someone who told him that the State" was at Public
Official B's ( "the Subject's ") office.
a. Individual D testified that when he received the aforesaid telephone call, he
did not know that the persons from the State" who were at the Subject's
office were from the State Ethics Commission.
(1) Individual D testified that when he received the aforesaid telephone
call, he thought the persons from the State" who were at the
Subject's office were from the Office of Attorney General.
b. Individual D testified that reporters enlightened him that the persons from
the State" who were at the Subject's office on Tuesday, Significant Date 3
were from the State Ethics Commission.
c. Individual D testified that he never had discussions with anyone regarding
filing an ethics complaint against the Subject, and that he never assisted
anyone in any way with filing an ethics complaint against the Subject.
(1) Individual D testified that he never saw any complaint filed against the
Subject.
d. Individual D is Corporate Officer G of Business F.
e. Individual D testified that he does not know of any correspondence from the
State Ethics Commission sent to Post Office Box Address E.
39. Reporter M of News Organization L was the author of the news article in evidence
as ID -1.
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 13
a. On Tuesday, Significant Date 3, Reporter M received a telephone tip that led
him to go to the Subject's office.
(1) The telephone tip was that the State" was at the Subject's office.
(2) The person providing the tip did not mention which agency was at the
Subject's office.
b. Prior to arriving at the Subject's office on Tuesday, Significant Date 3,
Reporter M did not know that representatives from the State Ethics
Commission were at the Subject's office.
c. When Reporter M arrived at the Subject's office on Tuesday, Significant
Date 3, he saw two men in black suits.
(1) The men in black suits never identified themselves to Reporter M as
State Ethics Commission employees.
(2) The men in black suits either declined to comment or did not respond
to Reporter M's question as to who they were.
d. The Subject's office staff did not tell Reporter M that the men in the Subject's
office were from the State Ethics Commission.
e. Reporter M left the Subject's office and returned to his car, not knowing that
the men in black suits were from the State Ethics Commission.
f. From his car, Reporter M telephoned the press office of the Office of
Attorney General, because he (Reporter M) believed that the men in the
Subject's office might be from the Office of Attorney General.
Reporter M subsequently learned from the Subject, during a telephone
conversation with the Subject, that the men in the Subject's office were from
the State Ethics Commission.
g.
h. Until the point in time that Reporter M spoke to the Subject on the telephone
on Tuesday, Significant Date 3, Reporter M had no idea who the men in the
Subject's office were.
Reporter M testified that as a result of his own research of past news articles
involving an investigation by the Office of Attorney General, he subsequently
met with another individual, Individual 0, on Significant Date 3, and that
following that discussion, he (Reporter M) did not have an opinion as to
whether an ethics complaint had been filed against the Subject.
Reporter M became aware of the existence of a State Ethics Commission
investigation of the Subject when he (Reporter M) reviewed documents in
evidence as ID 2, which documents initiated a court action and were filed by
the Subject and his representatives one week after Significant Date 3.
(1) Reporter M testified that he believed that the Subject also issued a
press release regarding initiating the aforesaid court action.
40. Pittsburgh Employee was working in the Pittsburgh office of the State Ethics
Commission on Significant Date 3.
J.
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 14
a. On Significant Date 3, Pittsburgh Employee answered at least two telephone
calls placed to the Pittsburgh office by Complainant A.
b. Pittsburgh Employee did not tell Complainant A where Special Investigator
Gregory Curran was.
41. Individual 1 and Individual P were members of the Subject's staff and were present
in the Subject's office on Significant Date 3 when the investigators from the State
Ethics Commission arrived.
a. Individual I telephoned the Subject immediately and informed him that
representatives from the State Ethics Commission were at the office.
b. Individual I and Individual P testified that a reporter arrived at the Subject's
office very soon after the State Ethics Commission investigators arrived.
42. Gregory Curran ( "Curran ") is employed as a Special Investigator with the State
Ethics Commission.
a. On Significant Date 3, Curran and Supervising Investigator Jason Bricker
( "Bricker ") arrived at the Subject's office in an unmarked vehicle registered to
the Pennsylvania Department of General Services.
(1) Curran did not inform Complainant A of when he would be going to
the Subject's office.
b. Upon arriving at the Subject's office on Significant Date 3, Curran identified
himself to Individual I as a representative of the State Ethics Commission.
(1) Curran and Bricker showed Individual I their Commission badges and
then immediately placed the badges inside pockets where the badges
were no longer visible.
(2) Curran provided his business card to Individual 1.
(3) There was no reporter in the Subject's office at that time.
c. Curran engaged in two telephone conversations with the Subject while in the
Subject's office on Significant Date 3.
(1) Curran identified himself to the Subject and indicated that he and
Bricker were at the Subject's office pursuant to a State Ethics
Commission subpoena relative to allegations that the Subject had
utilized staff and equipment for campaign purposes.
(2) The first telephone conversation between Curran and the Subject
occurred prior to the time a reporter arrived at the Subject's office.
The second telephone conversation between Curran and the Subject
was initiated prior to the time a reporter arrived at the Subject's office,
and there is no indication in the record that the conversation was still
occurring when the reporter arrived.
(3)
d. Curran was surprised when a reporter entered the Subject's office.
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 15
e. Curran and Bricker did not identify themselves as representatives of the
State Ethics Commission during the entire time the reporter was in the
Subject's office.
f. Curran did not say anything to the reporter.
g.
p.
q.
In response to something the reporter said, Bricker said, No comment."
h. Under case docket number 05 -046, Curran conducted an investigation as to
a breach of confidentiality.
Complainant A denied disclosing information relating to the issuance of the
subpoena by the Ethics Commission.
j. Complainant A denied that her contacts with Individual D on Significant Date
3 had anything to do with disclosing any information pertaining to the Ethics
Commission's removal of computers at the Subject's office.
k. Individual D told Curran that the telephone calls between him and
Complainant A were included among the contacts he (Individual D) was
making to various people regarding what was happening at the Subject's
office.
The Fact Finding in the Investigative Complaint that states that Individual D
was involved in the filing of the complaint against the Subject was based
upon the use of a return address for Business F for filing the complaint.
(See, Fact Findings 10 c, 35 b (1)).
m. The Fact Finding in the Investigative Complaint that Complainant A
disclosed her knowledge of an Ethics Commission complaint /investigation
against the Subject to Individual D was based upon the circumstances of the
telephone calls made in proximity to the time the Commission subpoena was
served at the Subject's office. (See, Fact Finding 35).
n. Curran testified that in an initial interview, Individual D told Curran that his
(Individual D's) contacts with the media were made after the news article
appeared in the News Organization L publication on [the day after
Significant Date 3].
o. Curran testified that in a second interview, Individual D told Curran that he
(Individual D) made contacts with the media on Significant Date 3.
Curran conducted investigative interviews of members of the press in this
matter.
Curran did not answer any questions of members of the press.
43. Public Official B, also referred to herein as the Subject," and Witness A have been
political adversaries.
a. Public Official B testified that he told all his staff not to do campaign work
while on duty.
b. On Significant Date 3, Public Official B received a telephone call from
Individual I informing him that Commission investigators were in his office.
c. On Significant Date 3, Public Official B spoke by telephone with Curran.
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 16
(1) Public Official B asked Curran to identify himself, and Curran did so.
d. On Significant Date 3, Public Official B spoke by telephone with Reporter M.
(1) Public Official B testified that he does not remember telling Reporter
M that the men in his office were from the State Ethics Commission.
(2) Public Official B testified that he does not remember exactly what his
conversation was with Reporter M.
44. ID -1 and S -6 are copies of a news article authored by Reporter M which was
published by News Organization L on [the day after Significant Date 3].
a. In the article, Reporter M neither stated nor quoted anyone else as stating
that a complaint against the Subject had been filed with this Commission or
that this Commission was investigating the Subject.
45. Exhibit S -2 includes the February 16, 2005, complaint filed with the State Ethics
Commission by Complainant A.
a. The complaint sets forth various allegations, including alleged use of a
government office and equipment for campaign - related activities.
46. ID -5 consists of the Order of the State Ethics Commission as to the Subject. (See
also, S -3).
a. The Order approved a Consent Agreement between the Investigative
Division and the Subject.
b. The Order found one technical violation and one violation of Section 1103(a)
of the Ethics Act with respect to use of a government office facility or staff
member for campaign - related purposes.
47. The Complainant refused to testify in this matter, citing the Fifth Amendment.
48. Individual 0 refused to testify in this matter, citing the Fifth Amendment.
III. DISCUSSION:
Complainant A is a private individual who filed a complaint with this Commission
against Public Official B. As a Complainant, Complainant A is subject to the confidentiality
and wrongful use of act provisions of the Public Official and Employee Ethics Act ( "Ethics
Act "), 65 Pa.C.S. §§ 1108(k) and 1110.
Section 1108(k) of the Ethics Act provides in part that no person shall disclose or
acknowledge to any other person any information relating to a complaint, preliminary
inquiry, investigation, hearing or reconsideration petition that is before this Commission.
Section 1108(k) of the Ethics Act, 65 Pa.C.S. § 1108(k), and Section 21.6 of this
Commission's Regulations, 51 Pa. Code § 21.6, further provide for certain exceptions to
the confidentiality requirements, which exceptions are not relevant to this case.
Section 1110 of the Ethics Act, the wrongful use of act provision, provides in part
that a wrongful use of act occurs: (1) if a complaint was frivolous, that is, filed in a grossly
negligent manner without basis in law or fact; (2) if a complaint was filed without probable
cause and made primarily for a purpose other than that of reporting an Ethics Act violation;
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 17
or (3) if a person who filed a complaint publicly disclosed or caused to be disclosed that a
complaint against another person was filed with this Commission.
We shall now summarize the facts pertaining to this case. Given Complainant A's
failure to file an Answer to the Investigative Complaint, the facts as averred by the
Investigative Complaint are deemed admitted by Complainant A. 65 Pa.C.S. § 1108(e); 51
Pa. Code § 21.5(k).
Factually, Complainant A is a private individual who resides in [name of
municipality], [name of county], Pennsylvania. From [date] until [date], ComplainantAwas
employed as a [type of governmental employee] for Public Official B.
In 2005, Complainant A filed two complaints with this Commission alleging
violations of the Ethics Act by Public Official B and his staff. The first complaint was
determined to be incomplete, and the Executive Director of the State Ethics Commission
advised Complainant A by letter that no action could be taken as to the complaint for that
reason. The second complaint, received on February 16, 2005 (hereinafter also referred
to as the "February 16, 2005, complaint ") became the basis for a preliminary inquiry as to
Public Official B.
Both of the aforesaid complaints were notarized by the [family relationship] of an
individual named [name of Individual D]. In 2005, Individual D was a candidate
challenging Public Official B for Public Office H. Complainant A became friends with
Individual D and his wife after Complainant A left the employment of Public Official B's
[governmental office] in [year].
Both of the aforesaid complaints were filed by Complainant A on Form SEC -3 5/90,
which form specifically referenced the confidentiality provisions of the Ethics Act now
codified at Sections 1108(k), 1109 and 1110 of the Ethics Act.
The envelope by which the February 16, 2005, complaint was mailed to this
Commission contained a return address that is the post office box address registered with
the Pennsylvania Department of State Corporation Bureau for Business F, a business
owned and operated by Individual D. Individual D is the only individual with access to that
post office box. Per Finding 35 b.1, Individual D was involved with Complainant A in the
filing of the February 16, 2005, complaint against Public Official B.
The Investigative Division of this Commission commenced a preliminary inquiry
regarding the allegations set forth in Complainant A's complaint against Public Official B.
During the preliminary inquiry, Complainant A was interviewed by a State Ethics
Commission investigator on August 2, 2005, and August 25, 2005. When she was
interviewed, Complainant A was provided with a State Ethics Commission confidentiality
card, which quoted the statutory provision now codified at Section 1108(k) of the Ethics Act
and referenced the penalty for violating the confidentiality of a Commission proceeding.
During the August 2, 2005, and August 25, 2005, interviews, Complainant A told
State Ethics Commission Special Investigator Gregory Curran that she had performed
campaign work on a computer at Public Official B's [location] [governmental office].
Complainant A suggested that the investigator obtain the aforesaid computer she had used
along with the computers used by two other [type of governmental employee] of Public
Official B, namely [name of Individual I] and [name of Individual J], as these computers
would have campaign information on them. Complainant A advised that the best day to
secure the computers at Public Official B's [governmental office] would be on a Tuesday.
Complainant A stated that the computers needed to be obtained as soon as possible
because, in prior years, Public Official B had received new computers for his
[governmental office] in [month]. Complainant A was advised that the computers could
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 18
only be obtained by a subpoena and that a subpoena could not be obtained during the
preliminary inquiry. (See, Findings 16, 22a).
On Significant Date 1, this Commission's Executive Director sent a letter to
Complainant A informing Complainant A that the Investigative Division of this Commission
had initiated a full investigation in relation to the complaint she had filed against Public
Official B. Complainant A received this letter approximately three days later on or about
Monday, Significant Date 2.
Based upon her aforesaid interviews with Commission investigators on August 2,
2005, and August 22, 2005, Complainant A was aware that computers from Public Official
B's [governmental office] could possibly be subpoenaed by Commission investigators. In
fact, Complainant A was the only witness with such knowledge. Complainant A had
specifically recommended that investigators go to Public Official B's office on a Tuesday.
The following sequence of events occurred on Tuesday, Significant Date 3.
At approximately 9:23 a.m., Complainant A placed a call to the Pittsburgh office of
this Commission and asked for Special Investigator Gregory Curran. Complainant A
placed this call because she had provided the suggestion that Tuesday was the best day
to serve the subpoena for computers at Public Official B's [governmental office] (Finding
35 aa), and she was trying to determine whether members of the Investigative Division
were in the office. (Finding 35 a.1). Upon being advised that Special Investigator Curran
was in the field, Complainant A left no message or reason for the call, stating she would
call later. Immediately thereafter, from 9:24:34 a.m. to 9:32:59 a.m., Complainant placed
7 telephone calls to Individual D's cellular telephone number and business telephone
number.
At approximately 9:35 a.m., the Investigative Division of the State Ethics
Commission served a subpoena at Public Official B's [governmental office] in [name of
municipality], Pennsylvania for all computers assigned to Public Official B and used by his
([type of governmental employees]. (Finding 22). The computers subpoenaed were the
same as those mentioned by Complainant A during the August 2005 interviews with
Special Investigator Gregory Curran.
Meanwhile, from 9:34:22 a.m. to 9:50:49 a.m., three telephone calls were placed by
Individual D, with the first being to the main number for News Organization K, the local
[name of municipality] newspaper; the second being to the editor of News Organization K;
and the third being to News Organization L Reporter M. Then, following a series of
additional telephone calls placed by Complainant A and Individual D to each other,
Individual D placed 3 additional telephone calls to the main number for News Organization
K from 10:06:30 a.m. to 10:14:42 a.m.
From 10:18:13 a.m. to 10:23:02 a.m., Complainant A and Individual D again placed
telephone calls to each other, followed by Individual D placing an additional call to the
editor of News Organization K at 10:30:23 a.m.
Meanwhile, at approximately 10:20 a.m., Reporter M arrived at Public Official B's
[governmental office] while investigators for the Investigative Division of this Commission
were still present. Reporter M himself was only present at the [governmental office] for
approximately one minute. (Findings 24, 24c). Reporter M personally observed
computers being removed from Public Official B's [governmental office]. Reporter M
sought comments regarding the presence of Commission investigators. However, no
comments were made either by the Investigative Division staff or Public Official B's office
staff. Reporter M left the [governmental office] at approximately 10:21 a.m. The
investigators left the [governmental office] at approximately 10:30 a.m.
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 19
After Reporter M had left Public Official B's [governmental office], a series of
telephone calls were placed by Reporter M and Individual D to each other from 10:39:37
a.m. to 10:56:52 a.m. Then, several telephone calls were placed by Complainant A and
Individual D to each other from 10:59:59 a.m. to 11:53:21 a.m. Complainant A placed
several calls to this Commission's Pittsburgh office from 11:54 a.m. to 1:03 p.m.
Thereafter, Reporter M placed a telephone call to Complainant A at 1:27:31 p.m. Three
telephone calls were placed by Complainant A and Individual D to each other from 1:37:04
p.m. to 1:39:33 p.m. Finally, Complainant A telephoned Reporter M at 1:44:49 p.m.
An article was published in the Publication of News Organization L on [the day after
Significant Date 3] in which Reporter M wrote that State Ethics Commission Agents
collected a computer at the [name of municipality] [governmental office] of Public Official B
from Individual I, [job title].
Per Finding 26, during a sworn statement to Commission investigators on February
15, 2006, Individual D admitted contacting News Organization K and News Organization L
on the matter involving the [governmental office] of Public Official B. Individual D claimed
he tried to contact as many members of the media that he could on advising them to go to
the [governmental office] of Public Official B. Individual D claimed he received a tip from
the newspapers.
Per Finding 27, during a sworn statement to Commission investigators on March 2,
2006, Reporter M provided the following information. Reporter M received the tip that led
him to Public Official B's [governmental office] on Significant Date 3 from a call to his cell
phone, Telephone Number 7, at approximately 9:45 a.m. The tip provided to Reporter M
was that computers were being taken from the [governmental office] of Public Official B.
Reporter M received no tips other than this call. No other reporters were involved in the
story.
Per Finding 35 b, the tip provided to Reporter M that computers were going to be
removed from Public Official B's [governmental office] came from Individual D after
Individual D received information from Complainant A.
Per Finding 34, during sworn statements to Commission investigators on December
7, 2005, and May 31, 2006, Complainant A denied disclosing to anyone the Ethics
Commission's investigation of Public Official B. However, Per Finding 35, Complainant A
disclosed her knowledge of an Ethics Commission investigation against Public Official B to
Individual D who in turn contacted the media.
Per Finding 34, during sworn statements to Commission investigators, Complainant
A claimed she did not disclose to Individual D that the Ethics Commission was going to
serve a subpoena at Public Official B's [governmental office]. Complainant A further
claimed that Reporter M called her in the morning of Significant Date 3 and came to her
house later in the day. However, during his sworn statement to Commission Investigators
on March 2, 2006, Reporter M testified that he never contacted Complainant A until after
12:00 p.m., which would be consistent with the telephone records detailed at Finding 32.
Analysis as to Section 1108(k) from Order 1407:
Based upon our review of the record, we find that there is clear and convincing
proof to support a violation of Section 1108(k) of the Ethics Act under the allegations.
Clear and convincing evidence is "testimony that is so `clear, direct, weighty, and
convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of
the truth of the precise facts in issue." In Re: Charles E.D.M., 550 Pa. 595, 601, 708 A.2d
88, 91 (1998) (Citation omitted).
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 20
As noted above, Section 1108(k) of the Ethics Act provides in part that no person
shall disclose or acknowledge to any other person any information relating to a complaint,
preliminary inquiry, investigation, hearing or reconsideration petition that is before this
Commission. Factually, Complainant A disclosed and acknowledged to another person,
specifically Individual D, information relating to the February 16, 2005, complaint
Complainant A filed against Public Official B with this Commission as well as the
investigation of Public Official B by this Commission. (Findings 35, 35 b.1). Accordingly,
we find that there is clear and convincing proof that Complainant A violated Section
1108(k) of the Ethics Act when she breached confidentiality by disclosing or
acknowledging to Individual D information relating to the February 16, 2005, complaint
against Public Official B that Complainant A filed with this Commission and the
investigation of Public Official B by this Commission. See, Stewart, Order 1393;
Rittenbaugh, Order 1074; Neary, Order 613 -R.
Conclusions of Law as to Section 1108(k) from Order 1407:
1. Complainant A, as a private individual who on February 16, 2005, filed a complaint
with this Commission against Public Official B, is a Complainant subject to the
confidentiality and wrongful use of act provisions of the Public Official and
Employee Ethics Act ( "Ethics Act "), and specifically 65 Pa.C.S. §§ 1108(k) and
1110.
2. Complainant A violated Section 1108(k) of the Ethics Act, 65 Pa.C.S. § 1108(k),
when she breached confidentiality as to the aforesaid complaint she filed with this
Commission against Public Official B.
Analysis of Final Determination as to Section 1110(a)(2):
We shall now consider whether the Findings establish a wrongful use of act
pursuant to Section 1110(a)(2) of the Ethics Act. As we noted in Rittenbaugh, supra, this
Section requires that a confidentiality breach occur by the public disclosure or the causality
of such disclosure of a complaint that has been filed with this Commission. Rittenbaugh,
Order 1074 at 13. Public disclosure requires the divulging of the complaint to two or more
people. Id.; see also, Stewart, supra; In Re: Ms. A, Order 1056.
Complainant A directly disclosed to Individual D the fact that a complaint against
Public Official B was filed with this Commission. (See, Findings 10, 31, 35, 35 b.1.)
However, in order for a violation of Section 1110(a)(2) to be found, the facts as set forth in
the Findings before us must establish that Complainant A either disclosed or caused to be
disclosed to at least one person in addition to Individual D the fact that a complaint had
been filed with this Commission.
The Findings do not establish that Complainant A directly disclosed to any person
other than Individual D the fact that a complaint had been filed with this Commission.
The further disclosures that occurred as established by the Findings are as follows.
On Significant Date 3, after Complainant A had placed her 9:23 a.m. telephone call
to the Pittsburgh office of this Commission and after Complainant A and Individual D had
placed numerous telephone calls to each other, Individual D contacted News Organization
K and News Organization L on the matter" involving the [governmental office] of Public
Official B. (Findings 19 -21, 26 a, 32.) Individual D claimed he tried to contact as many
members of the media that he could on advising them to go" to Public Official B's
[governmental office]. (See, Findings 26 a -b.) After receiving information from
Complainant A, Individual D provided a tip to Reporter M that computers were going to be
removed or were being taken from Public Official B's [governmental office]. (Findings 23,
27 b, 35 b.) However, the Findings do not establish any mention by Individual D of the
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 21
State Ethics Commission, investigators of the State Ethics Commission, an investigation by
the State Ethics Commission, or a subpoena, let alone any mention of a complaint having
been filed with this Commission.
On Significant Date 3 at approximately 10:20 a.m., Reporter M arrived at Public
Official B's [governmental office] while investigators for the Investigative Division of this
Commission were still present. During the approximately one minute Reporter M was
present at Public Official B's [governmental office], Reporter M observed computers being
removed from the [governmental office]. Reporter M sought comments regarding the
presence of Commission Investigators. However, no comments were made either by the
Investigative Division staff or Public Official B's office staff. Reporter M's article published
in the Publication of News Organization L on [the day after Significant Date 3] stated that
State Ethics Commission Agents collected a computer at the [name of municipality]
[governmental office] of Public Official B from Individual I, [job title]. In the article, Reporter
M neither stated nor quoted anyone else as stating that a complaint against the Subject
had been filed with this Commission or that this Commission was investigating the Subject.
We conclude that Individual D's disclosures to members of the media to go to the
[governmental office] of Public Official B and that computers were going to be removed or
were being taken from the [governmental office] of Public Official B do not constitute "clear
and convincing proof" that Complainant A caused to be publicly disclosed the fact that a
complaint against a person (Public Official B) was filed with this Commission.
None of the evidence produced at the appeal hearing would prove a wrongful use of
act by Complainant A. To the contrary, the evidence produced at the hearing and
particularly the testimony of Reporter M, which we find to be credible, supports our
preliminary determination of no wrongful use of act. Reporter M testified that the tip he
received to go to the Subject's office never mentioned the State Ethics Commission or any
complaint or investigation by the State Ethics Commission. Reporter M testified that it was
the Subject himself who informed Reporter M that the men removing computers from the
Subject's office were from the State Ethics Commission. We do not hold Complainant A
accountable for the Subject's own disclosure of such information to Reporter M. (Nor do
we hold Complainant A accountable for the disclosure of the existence of a Commission
investigation as to the Subject, which the Subject and others made in a civil action filed
one week after Significant Date 3.)
In addition to asserting that this Commission has been manipulated by persons who
are now shielded by the confidentiality and wrongful use of act provisions of the Ethics Act,
the Subject has presented the following legal arguments as to wrongful use of act:
(1) That disclosure of the investigation to Individual D also constituted
disclosure to a third person, specifically a corporation, Business F, of which
Individual D is a corporate officer (see, Subject's Closing Statement, Tr. at
373 -375; Subject's Brief at 12);
(2) That disclosure of the complaint to the notary who notarized the complaint
supports the finding of a wrongful use of act through disclosure to yet
another person (see, Subject's Brief at 10); and
That because this is a civil proceeding, this Commission may make adverse
inferences based upon the refusal of a witness to testify pursuant to the Fifth
Amendment, and that this Commission should infer that the Complainant and
Individual 0 knew that the complaint against the Subject was based upon
perjury and was part of an effort to find the Subject liable for some
wrongdoing (see, Subject's Brief at 10).
(3)
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 22
To the extent the Subject objects to the statutory requirements governing these
proceedings, we note that as an administrative agency, this Commission did not
promulgate the Ethics Act. Our duty is to administer the Ethics Act as promulgated by the
General Assembly.
As for the Subject's legal arguments, the first legal argument is inherently flawed.
The Subject cannot, on the one hand, argue that a corporation is a separate person under
the law, yet on the other hand, ignore the separate existence of the corporation by arguing
that disclosure of information to an individual who happens to be a corporate officer
constitutes disclosure to the separate person of the corporation. This is particularly so
when there is no indication that the disclosure was made at a meeting of the corporation
board or that the disclosure involved anything pertaining to the corporation. We reject the
Subject's argument as without merit. (We also parenthetically note that the use by an
individual of a corporate post office address as a return address for a complaint would
likewise not establish that the corporation itself had any knowledge of the complaint.)
We reject the Subject's second legal argument for obvious reasons. The Ethics Act
requires that complaints be signed under penalty of perjury. 65 Pa.C.S. § 1108(a). This
Commission's Regulations require that complaints be sworn. 51 Pa. Code § 21.1. It would
be an absurd (and unconscionable) interpretation of the wrongful use of act prohibition to
conclude that the required notarization of a complaint contributes to establishing wrongful
public disclosure. Indeed, such an interpretation would also necessarily mean that every
complainant would automatically be deemed in violation of Section 1108(k) of the Ethics
Act, which is established by wrongful disclosure to one person.
We shall now address the Subject's third argument. Although there is case law
holding that it is not a violation of constitutional rights to make an adverse inference in a
civil proceeding based upon a refusal to testify under the Fifth Amendment (see, e.q.,
Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766 (Pa. Cmwlth. 1997);
Realmuto v. Department of Transportation, 637 A.2d 769 (Pa. Cmwlth. 1994)), there is no
basis for this Commission to leap to the adverse inferences proposed by the Subject.
Based upon the evidence before us, we conclude: (1) that the facts before this
Commission fail to establish that the Complainant publicly disclosed or caused to be
disclosed that a complaint against the Subject had been filed with this Commission; (2) that
it was not the Complainant's actions, but rather the actions of the Subject himself- -
specifically, the Subject's disclosures to Reporter M and the disclosures in the civil action
filed as a matter of public record by the Subject and others one week after Significant Date
3- -which caused public disclosure of the fact that a complaint had been filed against the
Subject; and (3) that the Subject has failed to satisfy the very strict standards for proving a
wrongful use of the Ethics Act.
Accordingly, the Subject's appeal from our preliminary determination of no wrongful
use of the act is denied. We hold that Complainant A did not violate Section 1110(a)(2) of
the Ethics Act with respect to the February 16, 2005, complaint Complainant A filed against
Public Official B with this Commission based upon a lack of sufficient evidence to establish
that she publicly disclosed or caused to be disclosed that a complaint against a person
(Public Official B) had been filed with this Commission.
Given the statutory confidentiality afforded to a complainant, Chief Counsel is
directed to publicly release only a fully redacted copy of this adjudication and Order at
such time when this determination becomes a public record.
Conclusions of Law of Final Determination as to Section 1110(a)(2):
1. Complainant A, as a private individual who on February 16, 2005, filed a complaint
with this Commission against Public Official B, is a Complainant subject to the
Complainant A,
ID # 05- 046 /LD # 05- 046 -WUA (A &B)
Page 23
confidentiality and wrongful use of act provisions of the Public Official and
Employee Ethics Act ( "Ethics Act "), and specifically 65 Pa.C.S. §§ 1108(k) and
1110.
2. Complainant A did not violate Section 1110(a)(2) of the Ethics Act, 65 Pa.C.S. §
1110(a)(2), with respect to the aforesaid complaint based upon a lack of sufficient
evidence to establish that she publicly disclosed or caused to be disclosed that a
complaint against a person (Public Official B) had been filed with this Commission.
In Re: Complainant A
File Docket: ID # 05 -046
LD # 05- 046 -WUA (A &B)
Date Decided: 1/28/08
Date Mailed: 2/15/08
ORDER NO. 1407 -2
1 Complainant A, a private individual who on February 16, 2005, filed a complaint
with the State Ethics Commission against Public Official B, violated Section 1108(k)
of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1108(k),
when she breached confidentiality as to the aforesaid complaint she filed against
Public Official B.
2. Complainant A did not violate Section 1110(a)(2) of the Ethics Act, 65 Pa.C.S. §
1110(a)(2), with respect to the aforesaid complaint based upon a lack of sufficient
evidence to establish that she publicly disclosed or caused to be disclosed that a
complaint against a person (Public Official B) had been filed with the State Ethics
Commission.
3. The Subject's appeal from the preliminary determination of no wrongful use of act is
denied.
4. Chief Counsel is directed to publicly release only a fully redacted copy of this
adjudication and Order at such time when this determination becomes a public
record.
BY THE COMMISSION,
Louis W. Fryman, Chair
Commissioner Nicholas A. Colafella did not participate in this decision.