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In Re: Complainant A
STATE ETHICS COMMISSION
FINANCE BUDDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120 -0400
FACSIMILE: 71 7- 787 -0806
wEBSITE: www.ethics.pa.aov
File Docket: ID # 17 -017
LD # 17- 017 -WUA (A &B)
X -ref: Order No. 1732
Date Decided: 1131118
Date Mailed 2112118
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Melanie DePalma
Monique Myatt Galloway
Michael A. Schwartz
Shelley Y. Simms
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 seg.
Procedurally, the Investigative Division of the State Ethics Commission conducted a
preliminary inquiry under case number 16 -040 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 16 -040 was closed. Thereafter, the Subject sought a
finding as to wrongful use of the Ethics Act by the Complainant, Complainant A, alleging
that the complaint was frivolous and lodged primarily for a purpose other than that of
reporting a violation of the Ethics Act.
A wrongful use of Act inquiry was conducted by the Investigative Division, 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. 11110 c); 51 Pa. Code § 25.3(c)(2). Any such appeal must be in writing and must
be actua I received at this Commission within thirt (30} days of the mailing date of this
pre iminary etermination, 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 speciL 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 b clear and convincing
evidence. 51 Pa. Code § 25.4(b)(2). This Commission will then make a final determination.
In Re: Complainant A,
IP 17-0 17 -WUA (A &B)
Page 2
I. FINDINGS:
1. Since on or about [month, year], the Subject has served as a [positions held] for
Political Subdivision B.
2. Complainant A filed a complaint with this Commission against the Subject (case
number 16 -040), alleging that the Subject had violated the Ethics Act with regard to
[subject matter of complaint].
3. Following a preliminary inquiry, the investigative proceedings as to the Subject were
closed primarily because the C that the Subject received was allowable pursuant to
[certain statutory provisions]; the Subject then filed with the Investigative Division a
sworn complaint alleging a wrongful use of Act by Complainant A.
4. The Subject alleges that the complaint was frivolous and lodged primarily for a
purpose other than that of reporting a violation of the Ethics Act.
5. The Investigative Division's preliminary inquiry as to the Subject together with the
wrongful use of Act inquiry indicated, inter alia, that:
a. The allegations delineated in the complaint against the Subject were based
upon alleged facts that were accurate; and
b. Complainant A could have had a reasonable belief that under the facts as
Complainant A knew them to be, the complaint was valid under the law.
II. DISCUSSION:
Since on or about [month, year], the Subject has served as a [positions held] for
Political Subdivision B.
Complainant A filed a complaint with this Commission against the Subject (case
number 16 -040), and the Investigative Division opened a preliminary inquiry. The
preliminary inquiry focused upon allegations that that the Subject had violated the Ethics
Act with regard to [subject matter of complaint].
Following a preliminary inquiry, the investigative proceedings as to the Subject were
closed primarily because the C that the Subject received was allowable pursuant to [certain
statutory provisions]. The Subject then filed with the Investigative Division a sworn
complaint alleging a wrongful use of Act by Complainant A. The Subject alleges that the
complaint was frivolous and lodged primarily for a purpose other than that of reporting a
violation of the Ethics Act.
The Investigative Division's preliminary inquiry as to the Subject together with the
wrongful use of Act inquiry indicated, inter alia, that: (1) the allegations delineated in the
complaint against the Subject were base upon alleged facts that were accurate; and (2)
Complainant A could have had a reasonable belief that under the facts as Complainant A
knew them to be, the complaint was valid under the law.
Sections 1110(a) -(b) of the Ethics Act provide, in pertinent part, as follows:
§ 1110. Wrongful use of chapter
(a) Liability - -A person who signs a complaint alleging a
violation of this chapter against another is subject to
liability for wrongful use of this chapter if:
(1) the complaint was frivolous, as defined by this
In Re: Com lainant A,
- 017 -WUA (A &B)
Page 3
chapter, or without probable cause and made
primarily for a purpose other than that of
reporting a violation of this chapter ....
(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. §§ 1'110(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 SubJ'ect, such
allegations were based upon facts that could be established. According to the record
before us, based upon the facts as Complainant A knew them to be, Complainant A could
have reasonably concluded that the complaint might be valid under the Ethics Act.
It is our preliminary determination, under the facts and circumstances resented 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; and (2)
regardless of the purpose of the complaint, the complaint was not without probable cause
as Complainant A had a reasonable belief that under the #acts as Complainant A knew
them to be, the complaint might be valid under the Ethics Act.
The elements of a wrongful use of Act have not been met in this matter.
Ill. CONCLUSIONS OF LAW:
As a [position held] for Political Subdivision B since on or about [month, year], the
individual referred to herein as the "Subject" has been a public official sub ectto the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
§ 1101 et seg.
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 16 -040.
In Re: Complainant A,
- - 017 -WUA (A &B)
Page 4
Under the facts and circumstances presented in this matter, there is no basis for
concluding that the complaint filed against the Subject (case number 16 -040) was
frivolous or was without probable cause.
In Re: Complainant A File Docket: ID # 17 -017
LD # 17- 017 -WUA (A &B)
Date Decided: 1131118
Date Mailed: 2112118
ORDER NO. 1732
The matter of the request by the individual referred to herein as the "Subject" 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 16 -040.
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,
Nicholas A. CoTaTe a, C h air