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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.