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HomeMy WebLinkAbout1574 Confidential In Re: Complainant A : File Docket: ID # 10-026 : LD # 10-026-WUA (A&B) : X-ref: Order No. 1574 : Date Decided : 10/19/10 : Date Mailed 11/3/10 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella Mark Volk This is a preliminary determination of the State Ethics Commission as to wrongful use of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Procedurally, the Investigative Division of the State Ethics Commission conducted a preliminary inquiry under case number 09-049 based upon alleged violation(s) of the Ethics Act by an individual referred to herein as the "Subject." Following the preliminary inquiry, the matter under case number 09-049 was closed. Thereafter, the Subject sought a finding as to wrongful use of the Ethics Act by the Complainant, Complainant A, alleging: (1) that the complaint was frivolous; (2) that the complaint was without probable cause and made primarily for a purpose other than that of reporting a violation of the Ethics Act; and (3) that Complainant A publicly disclosed the fact that an Ethics Act investigation against the Subject was ongoing. An investigative review was conducted as to wrongful use of act, and a report and recommendation were submitted by the Investigative Division for consideration. Upon review, this Commission adopts the recommendation of the Investigative Division and preliminarily determines that there has not been a wrongful use of the Ethics Act in this matter. The Subject may appeal this preliminary determination to this Commission. 65 Pa.C.S. § 1110(c); 51 Pa. Code § 25.3(c)(2). Any such appeal must be in writing and must be actually received at this Commission within thirty (30) days of the mailing date of this preliminary determination, pursuant to 51 Pa. Code §§ 25.4(a), 11.1. If no timely appeal is filed, this preliminary determination will become absolute and will become the final determination of this Commission in this matter regarding wrongful use of the act, 51 Pa. Code § 25.4(a), and will be released as a public document. In the event of an appeal, an Order to Show Cause will be issued to the Subject requiring the Subject to show cause why the rule should not be made absolute as to a finding of no wrongful use of the act (65 Pa.C.S. § 1110(c); 51 Pa. Code § 25.4(b)(1)). The Subject's answer to the rule must contain specific factual averments which establish a basis for believing the Ethics Act was wrongfully used. One or more of the following shall be inadequate to establish wrongful use of the Ethics Act: (1) the dismissal of the complaint; (2) dismissal for lack of probable cause; or (3) dismissal on jurisdictional grounds. 51 Pa. Code § 25.4(b)(1). Thereafter, a hearing may be held at which the Subject bears the burden of proving wrongful use of the act by clear and convincing evidence. 51 Pa. Code § 25.4(b)(2). This Commission will then make a final determination. In Re: Complainant A, ID # 10-026/LD # 10-026-WUA (A&B) Page 2 In Re: Complainant A, ID # 10-026/LD # 10-026-WUA (A&B) Page 3 I. FINDINGS: 1. From [span of years], the Subject served as a Member of Governmental Body B for Political Subdivision C. a. In [years], the Subject served as [officer] of Governmental Body B. 2. Complainant A filed a complaint with this Commission against the Subject (case number 09-049), alleging that the Subject had violated the Ethics Act by: (1) using Political Subdivision C employees and equipment to [activity] [items] that had been purchased by Political Subdivision C on property owned by the Subject; (2) directing the removal of a [public safety item] from property owned by the Subject using employees of Political Subdivision C’s [type of department]; and (3) directing Political Subdivision C employees to haul [type of material] utilizing Political Subdivision C equipment to property owned by the Subject. a. As to each of the aforesaid allegations, the property owned by the Subject was located within a development (“Development”) of which the Subject owns [percentage]. 3. Following a preliminary inquiry, the investigative proceedings as to the Subject were closed, and the Subject filed with the Investigative Division a request to initiate a wrongful use of act proceeding against the Complainant (Complainant A). 4. The Investigative Division's preliminary inquiry as to the Subject together with the investigative review as to wrongful use of act indicated that: a. The allegations delineated in the complaint against the Subject were based upon facts that could be established. b. As to each of the aforesaid allegations, the preliminary inquiry established an actual or arguable use of authority of office by the Subject, but the element of a private pecuniary benefit could not be established. c. As to the first alleged factual scenario, the financial benefit to the Subject could have been considered de minimis under prior Commission rulings because the [items] in question were [activity] in a PennDOT right-of-way along a Political Subdivision C street on a lot that could not have a home built on it. d. As to the second alleged factual scenario, there was no financial gain to the Subject because the Subject’s use of authority of office merely caused the [third party provider] to correct an error that it had made, without any expense to Political Subdivision C. e. As to the third alleged factual scenario, a private pecuniary benefit could not be established under the factual circumstances because the [type of material] was used to construct a [safety related improvement] on property not owned by the Subject, and the [safety related improvement] equally benefited all residents of the Development and was ultimately turned over to Political Subdivision C. f. Complainant A declared at a public meeting of Governmental Body B that the Subject was being investigated by the State Ethics Commission. In Re: Complainant A, ID # 10-026/LD # 10-026-WUA (A&B) Page 4 g. As part of his election campaign in opposition to the Subject, Complainant A showed residents of Political Subdivision C a letter from this Commission, which indicated that the Commission was investigating the Subject. II. DISCUSSION: From [span of years], the Subject served as a Member of Governmental Body B for Political Subdivision C, and as such, the Subject was a public official subject to the provisions of the Ethics Act. In [years], the Subject served as [officer] of Governmental Body B. Complainant A filed a complaint with this Commission against the Subject (case number 09-049), and the Investigative Division opened a preliminary inquiry. The preliminary inquiry focused upon allegations that that the Subject had violated the Ethics Act by: (1) using Political Subdivision C employees and equipment to [activity] [items] that had been purchased by Political Subdivision C on property owned by the Subject; (2) directing the removal of a [public safety item] from property owned by the Subject using employees of Political Subdivision C’s [type of department]; and (3) directing Political Subdivision C employees to haul [type of material] utilizing Political Subdivision C equipment to property owned by the Subject. As to each of the aforesaid allegations, the property owned by the Subject was located within a development (“Development”) of which the Subject owns [percentage]. Subject to certain statutory exclusions, Section 1103(a) of the Ethics Act prohibits a public official/public employee from using the authority of his public position for the private pecuniary benefit of himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. The Investigative Division's preliminary inquiry as to the Subject indicated that the allegations delineated in the complaint against the Subject were based upon facts that could be established. As to each of the aforesaid allegations, the preliminary inquiry established an actual or arguable use of authority of office by the Subject, but the element of a private pecuniary benefit could not be established. As to the first alleged factual scenario, the Investigative Division concluded that the financial benefit to the Subject could have been considered de minimis under prior Commission rulings because the [items] in question were [activity] in a PennDOT right-of-way along a Political Subdivision C street on a lot that could not have a home built on it . As to the second alleged factual scenario, the Investigative Division concluded that there was no financial gain to the Subject because the Subject’s use of authority of office merely caused the [third party provider] to correct an error that it had made, without any expense to Political Subdivision C. As to the third alleged factual scenario, the Investigative Division concluded that a private pecuniary benefit could not be established under the factual circumstances because the [type of material] was used to construct a [safety related improvement] on property not owned by the Subject, and the [safety related improvement] equally benefited all residents of the Development and was ultimately turned over to Political Subdivision C. The base case having been closed, the Subject has now requested a determination as to wrongful use of act by Complainant A, alleging: (1) that the complaint was frivolous; (2) that the complaint was without probable cause and made primarily for a purpose other than that of reporting a violation of the Ethics Act; and (3) that Complainant A publicly disclosed the fact that an Ethics Act investigation against the Subject was ongoing. Sections 1110(a)-(b) of the Ethics Act provide as follows: § 1110. Wrongful use of chapter In Re: Complainant A, ID # 10-026/LD # 10-026-WUA (A&B) Page 5 (a) Liability-- A person who signs a complaint alleging a violation of this chapter against another is subject to liability for wrongful use of this chapter if: (1) the complaint was frivolous, as defined by this chapter, or without probable cause and made primarily for a purpose other than that of reporting a violation of this chapter; or (2) he publicly disclosed or caused to be disclosed that a complaint against a person had been filed with the commission. (b) Probable cause-- A person who signs a complaint alleging a violation of this chapter has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based and either: (1) reasonably believes that under those facts the complaint may be valid under this chapter; or (2) believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information. 65 Pa.C.S. §§ 1110(a)-(b). The term "frivolous complaint" is defined in the Ethics Act as follows: § 1102. Definitions "Frivolous complaint." A complaint filed in a grossly negligent manner without basis in law or fact. 65 Pa.C.S. § 1102. The question before this Commission is whether the elements of a wrongful use of act are met in the instant matter. With regard to the allegations set forth in the complaint against the Subject, such allegations were based upon facts that could be established. An objective observer could have reasonably concluded that the Subject used the authority of his office for the private pecuniary benefit of himself or a business with which he was associated in contravention of Section 1103(a) of the Ethics Act. As for public disclosure by Complainant A of the fact that the Subject was being investigated by the State Ethics Commission, based upon recent case law, disclosure by a complainant of the existence of an Ethics Act investigation is no longer an available avenue under the wrongful use of act section of the Ethics Act. (See, Stilp v. Contino, 613 F.3d 405 (3d Cir. Pa. 2010), on remand, 2010 U.S. Dist. LEXIS 104716 (M.D. Pa. Sept. 30, 2010)). It is our preliminary determination, under the facts and circumstances presented in this case, that: (1) the complaint against the Subject was not frivolous (filed in a grossly negligent manner without basis in law or fact), as the allegations delineated in the complaint against the Subject were based upon facts that could be established ; (2) regardless of the purpose of the complaint, the complaint was not without probable cause In Re: Complainant A, ID # 10-026/LD # 10-026-WUA (A&B) Page 6 as Complainant A had a reasonable belief that the Subject had used the authority of his office for a prohibited private pecuniary benefit in contravention of Section 1103(a) of the Ethics Act; and (3) as constitutionally protected speech, Complainant A’s disclosure of the existence of an Ethics Act investigation against the Subject does not form the basis for a wrongful use of the Ethics Act. The elements of a wrongful use of act have not been met in this matter. III. CONCLUSIONS OF LAW: 1. As a Member of Governmental Body B for Political Subdivision C from [span of years], and [officer] of Governmental Body B in [years], the individual referred to herein as the "Subject" was a public official subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. 2. The matter of the Subject’s request for a finding as to wrongful use of the Ethics Act by Complainant A having been brought before this Commission, following review, it is the preliminary determination of this Commission that Complainant A did not wrongfully use the Ethics Act with respect to the complaint against the Subject under case number 09-049. 3. Under the facts and circumstances presented in this matter, there is no basis for concluding that the complaint filed against the Subject (case number 09-049) was frivolous or was without probable cause. 4. As constitutionally protected speech, Complainant A’s disclosure of the existence of an Ethics Act investigation against the Subject does not form the basis for a wrongful use of the Ethics Act. In Re: Complainant A : File Docket: ID # 10-026 : LD # 10-026-WUA (A&B) : Date Decided : 10/19/10 : Date Mailed 11/3/10 ORDER NO. 1574 1. The matter of the Subject’s request for a finding as to wrongful use of the Ethics Act by Complainant A having been brought before this Commission, following review, it is the preliminary determination of this Commission that Complainant A did not wrongfully use the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., with respect to the complaint against the Subject under case number 09-049. 2. If no timely appeal is filed, this preliminary determination will become absolute and will become the final determination of this Commission in this matter regarding wrongful use of the Ethics Act and will be released as a public document. BY THE COMMISSION, Louis W. Fryman, Chair