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HomeMy WebLinkAbout1469 Complainant AIn Re: Complainant A File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella Reverend Scott Pilarz ID # 07 -060 LD # 07- 060 -WUA (A &B) Order No. 1469 7/7/08 7/10/08 The Investigative Division of the State Ethics Commission conducted an investigation regarding a possible wrongful use of 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. A formal Answer was not filed. The Commission received and entered in the record of this case a letter dated June 9, 2008, from the Complainant, which included a general denial of the allegations. The record is complete. Upon issuance, this adjudication and Order pertaining to wrongful use of the Ethics Act shall constitute the "preliminary determination" of this Commission as to wrongful use of the Ethics Act. Per the Commission Regulations at 51 Pa. Code § 25.3(d), this Commission shall notify the Complainant and the "Subject" (the person against whom the original Complaint was filed) of the Commission's preliminary determination in this case. If no appeal is filed with this Commission within thirty days after the mailing date noted above, the preliminary determination will become absolute, will constitute the final determination of this Commission as to wrongful use of the Ethics Act (51 Pa. Code § 25.4), and will be made available in redacted form as a public document. If the final determination of this Commission is that the Complainant has wrongfully used the Ethics Act, then upon receiving a written request from the Subject, this Commission shall provide to such Subject the name and address of the Complainant, together with a copy of the final determination in redacted form. 65 Pa.C.S. § 1110(c). The files in this case will remain confidential in accordance with Section 1108 of the Ethics Act, 65 Pa.C.S. § 1108. Complainant A ID # 07- 060 /LD # 07- 060 -WUA (A &B) Page 2 I. ALLEGATIONS: That Complainant A, a private citizen violated the following provisions of the State Ethics Act (Act 93 of 1998) when he disclosed or caused to be disclosed that a complaint was filed with the Commission regarding the conduct of Individual B, an employee of Authority C and a member of the Borough D Council: Section 1110. Wrongful use of chapter (a) Liability. —A person who signs a complaint alleging a violation of this chapter against another is subject to liability for wrongful use of this chapter if: (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: 1. The Investigative Division of the State Ethics Commission received information alleging that Complainant A violated provisions of the State Ethics Act (Act 93 of 1998). 2. Upon review of the information, the Investigative Division initiated a preliminary inquiry on September 12, 2007. 3. The preliminary inquiry was completed within sixty days. 4. On November 2, 2007, a letter was forwarded to Complainant A, by the Investigative Division of the State Ethics Commission, informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, no. 7005 1160 0003 4345 9437. b. The domestic return receipt bore the signature of Complainant A. 5. Periodic notice letters were forwarded to Complainant A in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 6. The Investigative Complaint was mailed to the Respondent on April 22, 2008. 7 Complainant A is a private citizen and resident of Borough D, County E. a. Complainant A resides at [address]. 8. Borough D is governed by a [number] member council and mayor. a. Council holds one legislative meeting per month on the [specific day] of each month. b. Council members are compensated in the amount of [dollar amount] per month for their service with the exception of council president and the mayor Complainant A ID # 07- 060 /LD # 07- 060 -WUA (A &B) Page 3 who receive [dollar amount] per month. 1. Council members are not required to be present at monthly meetings to receive the monthly stipend. 9. Voting at Borough D Council meetings occurs via group aye /nay vote. a. The mayor votes only in the case of a tie vote among council members. b. Any abstentions or objections cast are specifically noted in the minutes. 1. Minutes of each meeting are approved for accuracy at the next subsequent meeting. 10. Vacancies which arise on borough council are filled via appointment by existing borough council members. a. Vacancies on council are not normally advertised in any public medium. b. Interested individuals typically express their interest in serving on borough council to borough representatives (i.e. council members, employees, etc.) for ultimate presentation to and consideration by council. 11. Borough D Council created Authority C (hereafter [also referred to as] Authority) via Ordinance presented at the [date] regular council meeting. a. Council created the Authority pursuant to the authority granted [Council] in the Pennsylvania Municipality Authorities Act. b. The Authority was incorporated with the Pennsylvania Department of State, Corporation Bureau, as a Municipal Authority under Entity Number [number] on or about [date]. 1. The Authority has a registered filing address of [address]. c. The Authority currently services approximately [number] accounts; [number] customers; and provides water to [number] separate municipalities. 12. The Authority is governed by a [number] member board of directors. a. The Authority board holds one regularly scheduled meeting per month on the [specific day] of each month. b. Authority board members are compensated at the rate of [dollar amount] per month for their service. 1. Authority board members are not required to be present at monthly meetings to receive the stipend. 13. Borough D Council is responsible for appointing the members of the Authority board and setting board member compensation. a. Authority board members serve [number] year terms. 14. Vacancies which occur on the Authority board are filled in the same manner as vacancies on borough council. Complainant A ID # 07- 060 /LD # 07- 060 -WUA (A &B) Page 4 a. Vacancies on the Authority board are not normally advertised in any public medium. b. Interested individuals typically express their interest in serving on the Authority board to borough representatives (i.e. council members, employees, etc.) for ultimate presentation to and consideration by council. 15. Individual B served as a member of Borough D Council from [date] to [date]. a. Individual B served as council president for approximately [number] years. 16. Individual B was employed as the [employment position] of the Authority from approximately [date] through [date]. a. Individual B served as the [employment position] from approximately [date] through [date]. 17. At the beginning of [month and year], the Authority board was composed of board members [names of board members]. a. No vacancies existed on the Authority board at that time. 18. Two vacancies existed on the board as of [date], as the result of board member deaths. a. Authority Board Member F passed away on [date]. b. Authority Board Member G passed away on [date]. 19. Subsequent to the passing of Authority Board Member F and Authority Board Member G, Individual B expressed his interest in serving on the Authority board to various council members. a. Individual B expressed his interest in private conversations with various council members. 20. Individual B consulted with Authority Solicitor Attorney H and his private attorney, Attorney 1, regarding the compatibility of serving as a borough council member, Authority board member, and Authority [employment position]. a. Attorney H provided Individual B a written opinion dated [date], indicating that the positions were not incompatible offices. 1. Attorney H cautioned Individual B in the opinion that he should abstain from voting on any matters involving his compensation as [employment position], or any compensation matters involving family members that might be employed by the Authority. 2. Attorney H also cautioned Individual B in the opinion that Individual B should continue to abstain from voting on appointments to the Authority board as long as Individual B served as a borough councilman. b. Attorney I also advised Individual B that the offices in question were not incompatible. 21. The agenda for the [date] regular meeting documented council's intent to consider Complainant A ID # 07- 060 /LD # 07- 060 -WUA (A &B) Page 5 an appointment to the Authority board to fill one of the board vacancies through [date]. a. No specific individual was identified as a potential appointee on the agenda. 22. At the [date] regular meeting of Borough D Council, an Executive Session was held regarding the state of the Authority. a. Concern was discussed regarding the ability of the Authority board to effectively conduct Authority business with two vacant seats. b. A recommendation was made during the Executive Session to appoint Individual B to Authority Board Member F's vacant seat on the Authority board. 23. Committee reports and audience participation portions of the meeting were held following the Executive Session. a. Complainant A was present at and participated in the audience participation portion of the [date] meeting. 24. Complainant A addressed borough council regarding various issues including the appointment of a Township J resident to the Authority board. a. Complainant A wished to have a Township J resident appointed so that the K would have representation on the Authority board. 25. During the subsequent Agenda portion of the [date] regular council meeting, council considered an appointment to the Authority board through [date]. a. The appointment was for the remainder of Authority Board Member F's term. 26. A motion was made at the [date] meeting by Board Member L, seconded by Board Member M, to appoint Individual B to Authority Board Member F's vacant seat. a. Minutes note the approval and ordering of the motion with Individual B abstaining from the vote. b. Council felt Individual B's years of experience as the Authority [employment position] provided him with the knowledge to effectively serve as an Authority board member. 27. On [date], the Pennsylvania State Ethics Commission received a sworn complaint alleging that Individual B violated provisions of the Public Official and Employee Ethics Act (Act 93 of 1998). a. The complaint was notarized on [date]. 1. The complaint was notarized one day after Individual B's appointment to the Authority board. b. The complaint was executed by Complainant A, [address]. 28. The complaint form received by the State Ethics Commission from Complainant A was obtained from the Pennsylvania State Ethics Commission website located at http://www.ethics.state.pa.us. Complainant A ID # 07- 060 /LD # 07- 060 -WUA (A &B) Page 6 a. The form is identified as an SEC -3 Complaint Form on the website. b. The form filed by Complainant A is identified in the upper left hand corner as an SEC -3 form. 29. Upon accessing the SEC3.pdf file from the Commission website, an instruction page appears which provides instructions and important provisions regarding the Ethics Act. a. The page contains statements which include the following *, among others: IMPORTANT -Any person filing a complaint with the State Ethics Commission should be aware of the following provisions of the Ethics Law: Confidentiality - 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. Penalties- Section 9 (e) Any person who violates the confidentiality of a Commission proceeding pursuant to Section 8, is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year, or be both fined and imprisoned. b. The instruction page is automatically printed when the complaint form is printed. c. The SEC -3 Complaint Form is a representation of the standard form utilized by the State Ethics Commission for sworn complaints. *[The Sections of the Ethics Act described in Finding 29a are at 65 Pa.C.S. §§ 1108(k), 1109(e).] 30. Individual N is an acquaintance of Complainant A. a. Individual N currently resides at [address]. 1. The address of [address] is located in Borough D. b. Individual N has known Complainant A for approximately [number] years. 31. Subsequent to Individual B's appointment on [date], Complainant A and Individual N held various conversations which included the disclosure of Complainant A's filing of a complaint with the State Ethics Commission regarding Individual B's appointment to the Authority board and the distribution of the complaint to local media. a. Both Complainant A and Individual N felt Complainant A's filing of the complaint should be released to the local media. Complainant A ID # 07- 060 /LD # 07- 060 -WUA (A &B) Page 7 32. Complainant A provided Individual N with a copy of the complaint via e-mail transmission. a. Individual N was expecting the e-mail per discussions held with Complainant A. 33. Upon receipt of the e -mail from Complainant A, Individual N subsequently forwarded the complaint to various local media sources including Media Source 0, Media Source P, and Media Source Q as well as local television stations ([identification of television stations]) via e-mail transmission. a. Complainant A and Individual N had decided that Individual N would distribute the complaint information to the local media. 34. Company R publishes Media Source 0 while Company S publishes Media Source P. a. Media Source 0 maintains an address of [address]. b. Media Source P maintains an address of [address]. 35. Reporter T is employed as a reporter with Media Source 0. a. Reporter T works out of the [geographic location] office. 36. Media Source 0 ultimately published an article by Reporter T titled [title] dated [date], documenting that a complaint had been filed with the Commission. a. Specifically documented in the article was: "[Borough D] council [date] appointed [Individual B] to one of two vacancies on the [Authority C] board. The next day, borough resident [Complainant A] filed a complaint with the State Ethics Commission. [Complainant A's] complaint charges that [Individual B] already faced potential conflicts of interest by simultaneously serving as council president and as [Authority C's] paid [employment position]. By appointing [Individual B] to the authority board, [Borough D] council has made the potential for conflicts even greater, [Complainant A] charged. ...In his complaint, [Complainant A] wrote that [number] of the current [number] members of [Borough D] council have children who work for the authority." 1. Reporter T documented the date that the complaint was notarized as the filing date with the Commission. b. Information included on Complainant A's complaint was similar to that in the article published. 37. Reporter U is currently employed as a reporter with [Media Source V]. a. [Media Source V] is under the umbrella of Media Source P. Complainant A ID # 07- 060 /LD # 07- 060 -WUA (A &B) Page 8 38. On [date], Reporter U contacted Attorney H, Authority Solicitor, via telephone for comment on the complaint filed with the State Ethics Commission regarding Individual B's appointment to the Authority board. a. Attorney H had no knowledge of any such complaint being filed prior to Reporter U's telephone call. 39. Reporter U subsequently read the complaint to Attorney H over the telephone. a. Reporter U acknowledged to Attorney H that she had received a copy of the complaint from either Complainant A or Individual N. 40. Attorney H provided Reporter U his opinion that Individual B's appointment was not a violation of any laws he was familiar with, including the Ethics Act. a. Media Source P did not publish an article regarding the complaint at that time. 41. Media Source P later published an article written by Reporter U titled [title] dated [date], which referenced the complaint. a. The article documented that, The ethics complaint was filed by resident [Complainant A], who believes it is a conflict of interest for [Individual B] to sit on the board and be employed as its [employment position]." 42. Complainant A, as a private citizen and resident of Borough D, filed a complaint with the Pennsylvania State Ethics Commission against Individual B in Individual B's capacity as the [employment position] of the Authority C and President of Borough D Council regarding Individual B's appointment to the Authority C board, which he then caused to be disclosed to Individual N, Borough D resident, as well as Media Source 0 and Media Source P. a. Complainant A disclosed to Individual N in conversation that he had filed a complaint against Individual B. b. Complainant A and Individual N determined that the filing of the complaint should be released to the media by Individual N. c. Complainant A provided Individual N an electronic copy of the complaint via e -mail which Individual N forwarded to various local news media. d. At the time that Complainant A provided the complaint via e-mail to Individual N, Complainant A was aware that Individual N was going to distribute the form to the news media. e. Complainant A forwarded the complaint to Individual N via e -mail with the intent that it be distributed to the news media. III. DISCUSSION: Complainant A is a private citizen who, in [month year], filed a complaint with this Commission against Individual B. As a Complainant, Complainant A is subject to the wrongful use of act provisions of the Ethics Act. The allegations are that Complainant A, a private citizen, violated Section 1110(a)(2) of the Ethics Act when he disclosed or caused to be disclosed that a complaint was filed with the Commission regarding the conduct of Individual B, an employee of Complainant A ID # 07- 060 /LD # 07- 060 -WUA (A &B) Page 9 Authority C (hereinafter also referred to as "Authority ") and a member of the Borough D Council. Section 1110(a)(2) of the Ethics Act provides: Section 1110. Wrongful use of chapter (a) Liability. —A person who signs a complaint alleging a violation of this chapter against another is subject to liability for wrongful use of this chapter if: (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). For a violation of Section 1110(a)(2) of the Ethics Act to be found, the evidence must establish that a complainant publicly disclosed or caused to be publicly disclosed that a complaint against a person had 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, In Re: Complainant A, Order 1407 -2; In Re: Ms. A, Order 1056. Where a wrongful use of act occurs, this Commission may find a violation of Section 1110(a) of the Ethics Act. (See, 65 Pa.C.S. § 1110(c)). We preliminarily note that in the instant matter, Complainant A did not file a formal Answer to the Investigative Complaint. Complainant A submitted a letter dated June 9, 2008, which letter includes a general denial of the allegations and the following arguments: . I have concluded that your allegations are frivolous and lack merit. Subject matter can only equate to lawful acts of the State Legislature. Your assertions that I violated the unlawful Act (93 of 1998) indicated incompetence on the part of you and those whom you represent. I shall not acquiesce to your allegations. I deny that I violated a Law, since the Constitution of Pennsylvania is the number one rule in which all laws must be compliant therewith. At Article 1, Section 7, of that Contract it clearly spells out, "The Press shall be free to every person who may undertake to examine the proceedings of the Legislature or any Branch of government, and no law shall ever be made to restrain the right thereof ... no conviction shall be had in the prosecution for the publication of papers relating to the official conduct of officers or men in public capacity or any other matter proper for public investigation or information." June 9, 2008, letter of Complainant A, paragraphs 1 and 2 (Emphasis in the original). Because Complainant A did not specifically deny the Fact Findings of the Investigative Complaint, but rather, only generally denied the allegations, the necessary conclusion is that per the Ethics Act, 65 Pa.C.S. § 1108(e), and the Regulations of this Commission, 51 Pa. Code §§ 21.5(k)(1), Complainant A is deemed to have admitted the Fact Findings of the Investigative Complaint. Complainant A ID # 07- 060 /LD # 07- 060 -WUA (A &B) Page 10 With regard to the constitutional argument raised by Complainant A, it is not within the jurisdiction of this Commission to interpret constitutional provisions or to determine the constitutionality of any provision of the Ethics Act. It is this Commission's duty to administer and enforce the provisions of the Ethics Act as promulgated. In the absence of any judicial decision declaring Section 1110(a)(2) of the Ethics Act to be unconstitutional, it is this Commission's duty to administer and enforce that provision. We reject Complainant A's remaining general assertions that the allegations of the Investigative Complaint are frivolous and lack merit, based upon the following review and analysis. On [date], this Commission received a sworn complaint (hereinafter, the Complaint ") filed by Complainant A against Individual B as the [employment position] of the Authority and President of Borough D Council. The Complaint had been notarized on [date]. The Complaint alleged that Individual B had violated provisions of the Ethics Act. The Complaint pertained to Individual B's appointment to the Authority Board. Complainant A directly disclosed to another individual, Individual N, the fact that the Complaint against Individual B had been filed with this Commission. Complainant A and Individual N held various conversations which included the disclosure of Complainant A's filing of the Complaint against Individual B with this Commission and the distribution of the Complaint to local media. Both Complainant A and Individual N felt that Complainant A's filing of the Complaint should be released to the local media. Complainant A and Individual N decided that Individual N would distribute the Complaint information to the local media. Through Individual N, Complainant A caused to be disclosed to various media sources the fact that the Complaint against Individual B had been filed with this Commission. Complainant A provided to Individual N a copy of the Complaint via e-mail, with the intent that that the Complaint be distributed to the news media and with awareness that Individual N was going to distribute it to the news media. Individual N was expecting the e-mail based upon discussions held with Complainant A. Upon receiving the e-mail from Complainant A, Individual N forwarded the Complaint via e-mail to various media sources including Media Source 0, Media Source P, Media Source Q, and certain television stations. This resulted in the further disclosure of the filing of the Complaint through a conversation between a reporter and the Authority's Solicitor, as well as through published news articles. Specifically, on [date], Reporter U contacted Attorney H, Authority Solicitor, via telephone for comment on the Complaint filed with the State Ethics Commission regarding Individual B's appointment to the Authority Board. Prior to receiving Reporter U's telephone call, Attorney H had no knowledge of the Complaint being filed. Reporter U acknowledged to Attorney H that she had received a copy of the Complaint from either Complainant A or Individual N. Reporter U read the Complaint to Attorney H over the telephone. Media Source P subsequently published an article by Reporter U dated [date], which referenced the Complaint. The article stated that the Complaint was filed by Complainant A, who believes it is a conflict of interest for [Individual B] to sit on the board and be employed as its [employment position]." On [date], Media Source 0 published an article revealing that the Complaint had been filed with the Commission. The article stated, inter alia: (1) that Complainant A had filed a Complaint with the State Ethics Commission; (2) that Complainant A's Complaint charged that Individual B already faced potential conflicts of interest by simultaneously serving as Borough D Council president and as the Authority's paid [employment position]; and (3) that Complainant A charged that by appointing Individual B to the Authority Board, Borough D Council had made the potential for conflicts even greater. Complainant A ID # 07- 060 /LD # 07- 060 -WUA (A &B) Page 11 Both of the aforesaid articles specifically identified by name the individuals referred to herein as "Complainant A" and "Individual B." Based upon the record before us, there is no doubt that Complainant A caused to be publicly disclosed that the Complaint against Individual B had been filed with this Commission. We conclude that there is clear and convincing proof establishing a violation of Section 1110(a)(2) of the Ethics Act by Complainant A. We therefore hold that Complainant A violated Section 1110(a)(2) of the Ethics Act, 65 Pa.C.S. § 1110(a)(2), when he caused to be publicly disclosed that a complaint against Individual B had been filed with this Commission. Given the statutory confidentiality afforded to a complainant, Chief Counsel is directed to publicly release only fully redacted copies of this adjudication and Order at such time as this determination becomes a public record. Following public release, upon receiving a written request from Individual B, Chief Counsel shall provide the name and address of Complainant A to Individual B, together with copies of the redacted adjudication and Order of this Commission. IV. CONCLUSIONS OF LAW: 1. Complainant A, as a private citizen who, in [month year], filed a complaint with the Pennsylvania State Ethics Commission ( "Commission ") against Individual B, is a Complainant subject to the wrongful use of act provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), and in particular, 65 Pa.C.S. § 1110(a)(2). 2. Complainant A violated Section 1110(a)(2) of the Ethics Act, 65 Pa.C.S. § 1110(a)(2), when he caused to be publicly disclosed that a complaint against Individual B had been filed with this Commission. In Re: Complainant A File Docket: Date Decided: Date Mailed: ORDER NO. 1469 BY THE COMMISSION, Louis W. Fryman, Chair ID # 07 -060 LD # 07- 060 -WUA (A &B) 7/7/08 7/10/08 1 Complainant A, as a private citizen who, in [month, year], filed a complaint with the Pennsylvania State Ethics Commission ( "Commission ") against Individual B, violated Section 1110(a)(2) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1110(a)(2), when Complainant A caused to be publicly disclosed that a complaint against Individual B had been filed with this Commission. 2. At such time as this determination becomes a public record, Chief Counsel shall publicly release only fully redacted copies of the adjudication and this Order. 3. Following public release, upon receiving a written request from Individual B, Chief Counsel shall provide the name and address of Complainant A to Individual B, together with copies of the redacted adjudication and Order of this Commission.