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HomeMy WebLinkAbout1074 RittenbaughIn Re: Clarence Rittenbaugh STATE ETHICS COMMISSION 308 FINANCE BUILDING H ARRISBURG, PENNSYLVANIA 17120 File Docket: 97- 019 -C2 (A &B) X -Ref: Order No. 1074 Date Decided: 1/14/98 Date Mailed: 1/26/98 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Allan M. Kluger Boyd E. Wolff Julius Uehlein The Investigative Division of the State Ethics Commission conducted an investigation regarding a possible wrongful use of act (and breach of confidentiality) under the Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 soga., by the above - named "Complainant." Written notice of the specific allegation(s) was served at the commencement of the investigation. Upon completion of the investigation, the Investigative Division issued and served a Findings Report, which constituted the Investigation Division's Complaint against the "Complainant" An Answer was filed and hearing was waived. The record is complete. This is the determination of the Commission. The above -named "Complainant," who filed the original Complaint with the Commission, or the "Subject," the person against whom the Complaint was filed, may appeal this determination to the Commission. Any such appeal must be received at the Commission within thirty days of the date of mailing of this determination. A Complainant or Subject who files an appeal shall be directed and required to show cause why the Commission's determination should not become final. 51 Pa.Code §25.4. The files in this case will remain confidential during the above appeal period in accordance with Act 9 of 1989, 65 P.S. §408(h). Any person who violates confidentiality of the Ethics Law is guilty of a misdemeanor subject to a fine of not more than $ 1,000 or imprisonment for not more than one year, 65 P.S. §409(e). Confidentiality does not preclude discussing this case with an attorney at law. If the final determination of the Commission is that the Complainant has wrongfully used the Act, then pursuant to Section 10.1(c) of Act 9 of 1989, 65 P.S. §410.1(c), the Commission shall provide the name and address of the Complainant to the Subject, together with a copy of the final determination of the Commission. Rittenbaugh, 97- 019 -C2 Page 2 I. ALLEGATION: That Clarence Rittenbaugh, Jr., a private citizen violated the following provisions of the State Ethics Act (Act 9 of 1989) when he disclosed and /or acknowledged to persons information relating to a complaint he filed with the Commission alleging violations of the Ethics Act by Irene Ewald, a Supervisor for Charlestown Township, Chester County, and when he filed the complaint with the State Ethics Commission primarily for a purpose other than that of reporting a violation of the Act. Section 8. Investigations by the commission (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: (1) final orders of the commission as provided in subsection (h); (2) hearings conducted in public pursuant to subsection (g); (3) for the purpose of seeking advice of legal counsel; (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 Rittenbaugh, 97- 019 -C2 Page 3 II. FINDINGS: (9) such other exceptions as the commission, by regulation, may direct. 65 P.S. §408(k). Section 10.1. Wrongful use of act (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. 65 P.S. §10.1(a). 1. The Investigative Division of the State Ethics Commission received information that Clarence Rittenbaugh violated provisions of the State Ethics Act (Act 9 of 1989). Rittenbaugh has no personal knowledge as to how the Commission became involved. 2. On March 24, 1997, the Investigative Division of the State Ethics Commission, initiated an own - motion preliminary inquiry. Rittenbaugh does not know the date of the Commission's initial involvement, nor how or when the Commission became involved. 3. The preliminary inquiry was completed within sixty days. Rittenbaugh has no personal knowledge of the foregoing fact. 4. On April 29, 1997, a letter was forwarded to Clarence Rittenbaugh, by the Executive Director 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. 487 031 801. b. The domestic return receipt bore the signature of Clarence Rittenbaugh, with a delivery date of May 2, 1997. 5. On August 12, 1997, a letter was forwarded to Clarence Rittenbaugh through his attorney by the Executive Director of the State Ethics Commission informing him of a modification to the letter dated April 29, 1997. a. The letter was forwarded by certified mail no. P 487 031 907. Rittenbaugh, 97- 019 -C2 Page 4 b. The domestic return receipt bore the signature of Marzia Tongiani, with a delivery date of August 14, 1997. 6. The Investigative Complaint was mailed to the Respondent on September 29, 1997. 7. Clarence L. Rittenbaugh is a private citizen residing in Charlestown Township, Chester County, at 27 Benburb Road, Phoenixville, PA. 8. Rittenbaugh owned R &R Driveway Service, located at 719 Wheatland Street, Phoenixville, PA for approximately 30 years. Rittenbaugh owned R &R Driveway Service for approximately 30 years. However, 719 Wheatland Street, Phoenixville, Pennsylvania was only a storage /garage area for his business equipment, not his office. Rittenbaugh maintained an office at his home for his business and also had his business phone out of his home. His son's business was located at the Wheatland Street location. a. Rittenbaugh sold the company to his son, Clarence L. Rittenbaugh, III, in November of 1995. b. Rittenbaugh's son owned Rittenbaugh Excavating and Paving Company, also located at 719 Wheatland Street, Phoenixville, PA during the time Rittenbaugh owned R &R Driveway Service. 9. Rittenbaugh presently works part-time for Rittenbaugh Excavating and Paving Company. 10. Rittenbaugh has served as Constable in Charlestown Township, Chester County from 1982 to the present. 11. The Charlestown Township Board of Supervisors consists of Irene Ewald, John Sauser and Robin Kohn. a. Irene Ewald has served from January of 1990 to the present. b. John Sauser has served from January of 1994 to the present. c. Robin Kohn has served from January of 1996 to the present. 12. Rittenbaugh was appointed Charlestown Township roadmaster at the January 2, 1996, Board of Supervisors Reorganizational Meeting. a. Rittenbaugh was appointed by a 2 to 1 vote with Supervisors Sauser and Kohn voting in favor and Supervisor Irene Ewald opposing. 13. Rittenbaugh began serving as the Charlestown Township roadmaster on February 1, 1996. a. Rittenbaugh resigned the position effective November 1, 1996. Rittenbaugh tendered his resignation on October 25, 1996 (hand delivered to township office) with effective date of November 1, 1996. Rittenbaugh, 97- 019 -C2 Page 5 14. On August 19, 1996, the Charlestown Township Board of Supervisors voted to award a contract to Rittenbaugh Excavating and Paving for maintenance and paving of township roads. It is not within Rittenbaugh's personal knowledge when the actual award was made. The award letter was dated September 6, 1996 to the best of Rittenbaugh's knowledge. a. The vote was 2 to 1 with Supervisors Sauser and Kohn voting in favor and Supervisor Ewald opposing. b. Rittenbaugh Excavating and Paving was the low bidder. 15. Ewald felt that it was a conflict of interest for Rittenbaugh to serve as township roadmaster because of his past and present relationship to Rittenbaugh Excavating and Paving Company. a. Ewald questioned Rittenbaugh's involvement in reviewing the bids citing a conflict of interest. The other Supervisors indicated they felt there was no conflict. 16. Ewald refused to vote to approve Rittenbaugh's salary, expense reimbursements, and mobile telephone bills while he served as roadmaster. a. In October, 1996, Ewald also refused to approve a payment of a $450 bill submitted by Rittenbaugh for use by the township of a weed whacker and blower he owned. The Township had no contractor to mow or clear weeds. Rittenbaugh used his tools to do the work. b. The bill was approved by the other supervisors. 17. In January of 1997, Ewald began her campaign for reelection to the position of Charlestown Supervisor by announcing her plans to run in the May of 1997 Republican primary election. Rittenbaugh is not certain of the date of the commencement of Ewald's campaign. 18. Supervisor Sauser discussed the details of the 1993 playground contract and his criticism of Ewald's involvement in the process with Clarence L. Rittenbaugh, Jr., in 1996. a. Rittenbaugh subsequently obtained documentation about the playground contract from Township Secretary Linda Csete. 19. Margaret Fitzcharles is a reporter for the Pottstown Mercury Newspaper assigned to the Phoenixville office with duties including covering events taking place in Charlestown Township. a. Rittenbaugh expressed his concern to Fitzcharles. 20. Rittenbaugh obtained an Ethics Commission complaint form from the State Ethics Commission in February of 1997. Rittenbaugh, 97- 019 -C2 Page 6 21. In February of 1997 Rittenbaugh contacted Fitzcharles, by telephone, and requested her assistance in preparing the Ethics Commission complaint form he intended to file against Supervisor Ewald. a. Fitzcharles refused to assist Rittenbaugh in preparing the form. 22. Rittenbaugh prepared the complaint form, using both handwriting and a typewriter. a. Rittenbaugh's wife proofread the complaint for typographical errors. 23. On February 20, 1997, Rittenbaugh took the completed Ethics Commission complaint form to the office of David M. Frees, 120 Gay Street, Phoenixville, PA, where he presented a Pennsylvania drivers license as identification and signed the complaint form in front of Tara M. Kraft, a Notary Public working in Frees' office. a. Kraft notarized the document affixing her Notarial Seal. 24. The Ethics Commission complaint form prepared and signed by Rittenbaugh was the standard Ethics Commission Complaint form containing the identifying notation "Commonwealth of Pennsylvania SEC -3 5/90." 25. Section I of the complaint form prepared by Rittenbaugh identified Irene Ewald as the person about whom he was complaining. a. Section 2 of the complaint form alleged a conflict of interest for Ewald by signing two checks on November 1, 1993, and December 6, 1993, totaling $9,300 payable to Dennis Hiller, owner of Safe Play Services and part-time township roadmaster. b. Section 4 of the complaint contained the notary seal, the affirmation that the information is true and correct and the signature of Clarence Rittenbaugh and his address. 26. The reverse side of the complaint form contained a section labeled "Instructions" for filling out the document and Section 8, Section 9 and Section 10 of the Ethics Act which provides as follows: a. Section 8 No public official or public employee shall discharge any official or employee or change his official rank, grade or compensation, or deny him a promotion, or threaten to do so, for filing a complaint with or providing information to the commission or testifying in any commission proceeding. (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 Rittenbaugh, 97- 019 -C2 Page 7 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); (3) for the purpose of seeking advice of legal counsel; (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 (9) such other exceptions as the commission, by regulation, may direct. b. 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. Any person who engages in retaliatory activity proscribed by Section 8(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 imprisoned for not more than one year, or be both fined and imprisoned. Any person who willfully affirms 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 be both fined and imprisoned. c. Section 10 [sic] Rittenbaugh, 97- 019 -C2 Page 8 (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. d. Although Rittenbaugh admits that the recited text appears on the reverse side of the Complaint form, he asserts that at the time of preparation, he did not see the reverse side because he saw that nothing needed to be completed on that side. The Complaint form is completed with execution and notarization on the front and Rittenbaugh states he did not have reason to look at the reverse side. 27. On February 20, 1997, Rittenbaugh went to the office of the Pottstown Mercury, 214 Bridge Street, Phoenixville, PA and met with Fitzcharles. a. Rittenbaugh advised Fitzcharles that he was on his way to the post office to mail the complaint form to the State Ethics Commission. b. Rittenbaugh provided Fitzcharles with information on why he was filing the complaint. 28. Rittenbaugh showed Fitzcharles the completed, notarized complaint form and the accompanying documentation which included: a. Safe -Play Services, Inc., 21 Sycamore Lane, Phoenixville, Pa 19460 invoice made out to the Board of Supervisors, Charlestown Township, P.O. Box 507, Devault, PA 19432 for Equipment and Material Costs for Charlestown Park Playground in the amount of $9,300.00. b. Charlestown Township Board of Supervisors check number 7417, drawn on an account at the Meridian Bank and made payable to Safe -Play Services, Inc., dated 11/01/93, in the amount of $ 1,860.00 and signed Rittenbaugh, 97- 019 -C2 Page 9 by Township Supervisors Irene Ewald and John Martin and Township Secretary/Treasurer Linda Csete. c. Charlestown Township Board of Supervisors check number 7456, drawn on an account at the Meridian Bank and made payable to Safe -Play Services, Inc., dated 12/06/93, in the amount of $7,440.00 and signed by Township Supervisors Irene Ewald and John Martin and Township Secretary/Treasurer Linda Csete. 29. Rittenbaugh permitted Fitzcharles to copy the front and back of the completed Ethics Commission complaint, the Safe -Play invoice and the two Charlestown Township checks. 30. Rittenbaugh's complaint was received at the Ethics Commission on Monday, February 24, 1997. a. Attached to the complaint were the items mentioned in Finding No. 28 which Rittenbaugh reviewed with Reporter Fitzcharles. b. The envelope which contained the complaint confirmed a mail stamp on February 20, 1997, (a Thursday) from Southeastern, PA. 31. On Sunday, February 23, 1997, an article appeared in the Pottstown Mercury, written by Margaret Fitzcharles, Mercury Staff Writer, stating that Rittenbaugh, the former Charlestown roadmaster filed a conflict of interest complaint against Supervisor Irene Ewald with the Pennsylvania State Ethics Commission. a. The article stated Rittenbaugh asked the Ethics Commission to investigate Ewald's part in awarding a 1993 playground construction contract to then part-time Charlestown Roadmaster Dennis Hiller explaining Ewald violated the Ethics rules when, as chairman of the board, she voted to award the contract to Hiller. b. The article also stated that Rittenbaugh said he filed the complaint by mail on Thursday. c. The article quoted Irene Ewald as questioning why it was being done through the press and the Ethics Commission instead of at a public meeting. d. The article does quote Rittenbaugh as responding "That's my prerogative. For me to bring it up at a meeting, she'll just pass it off. I felt my questions wouldn't be answered, so why would I go out there an argue at a public meeting." 32. On February 25, 1997, the Executive Director of the State Ethics Commission advised Rittenbaugh by letter that his complaint failed to state a cause of action under any relevant provisions of the Ethics Law and as such, no investigation would be commenced. a. The Ethics Commission took no further action in regards to Rittenbaugh's complaint. Rittenbaugh, 97- 019 -C2 Page 10 b. Rittenbaugh asserts he had a belief that a violation had occurred. 33. Rittenbaugh disclosed the filing of a complaint against Irene Ewald to reporter) Margaret Fitzcharles on February 20, 1997, contemporaneously with mailing the complaint to the State Ethics Commission. a. The roadmaster is not a member of Ewald's immediate family. b. Ewald is not associated with Safe -Play Services, Inc. III. DISCUSSION: Clarence Rittenbaugh (hereinafter Rittenbaugh) is a resident and citizen of Charlestown Township, Chester County. As such, he is subject to the confidentiality and wrongful use of act provisions of Act 9 of 1989. Initially, it is noted that Section 9 of Act 9 of June 26, 1989 provides, in part, as follows: This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto. Since the occurrences in this case transpired after the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 9 to determine whether the Ethics Act was violated. Section 8(k) of Act 9 of 1989 provides in part that no person shall disclose or acknowledge any information relating to a complaint, preliminary inquiry, investigation, hearing or reconsideration petition which is before the Commission. Section 8(k) further provides for nine exceptions which are not relevant to this case. Section 10.1 of Act 9 of 1989 provides in part that a Wrongful Use of Act occurs: if a complaint was frivolous, that is, filed in a grossly negligent manner without basis in law or fact; if a complaint was filed without probable cause and made primarily for a purpose other than reporting an Ethics Law violation; or if a person who filed a complaint publicly disclosed or caused to be disclosed that a complaint against another person had been filed with the Commission. The issues before us are whether Rittenbaugh violated either Section 8(k), 10.1(a)(1) or (a)(2) of Act 9 of 1989 regarding the allegation that he disclosed information to a person regarding a complaint he filed with the Commission for a purpose other than reporting a violation of the Ethics Law. In January, 1996, Rittenbaugh was appointed to the position of Township Roadmaster by the Charlestown Township Board of Supervisors in a reorganizational Rittenbaugh, 97- 019 -C2 Page 11 meeting by a 2 -1 vote with Supervisors Sauser and Kohn voting yes and Supervisor Ewald voting no on his appointment. The Charlestown Township Board of Supervisors on August 19, 1996 voted to award a township road contract to Rittenbaugh Excavating and Paving (REP), a business owned by Rittenbaugh's son. The award of the contract passed by a 2 -1 vote with Supervisor Ewald voting no. Although REP was the low bidder, Ewald felt that it was a conflict for Rittenbaugh to serve as Roadmaster, given his relationship with REP. Ewald refused to vote to approve Rittenbaugh's salary, expense reimbursements, and mobile telephone bills. Rittenbaugh resigned as Township Roadmaster effective November 1, 1996. Supervisor Ewald, in January of 1997, began a reelection campaign for Charlestown Township Supervisor. After Supervisor Sauser discussed the details of a 1993 Township playground contract and criticized Ewald for her involvement in the process, Rittenbaugh obtained documents about the playground contract. Rittenbaugh contacted Margaret Fitzcharles, a Pottstown Mercury newspaper reporter and expressed his concerns about Ewald. Rittenbaugh obtained a complaint form from this Commission and contacted Fitzcharles to request her assistance in preparing the complaint which he intended to file against Ewald. After Fitzcharles refused to assist Rittenbaugh, he prepared the complaint form and took it to a notary for signing and notarization. On the complaint form, Rittenbaugh listed Ewald as the person about whom he was complaining. The complaint related to the Township playground contract and alleged that Ewald signed two checks to Dennis Hiller, an owner of Safe Play Services and part-time Roadmaster. The complaint form used by Rittenbaugh was a standard SEC Form which contained the prohibitions and penalties set forth in Sections 8 through 10.1 of Act 9 of 1989 on its reverse side. On February 20, 1997, Rittenbaugh went with the completed complaint form to the news office of the Pottstown Mercury where Rittenbaugh advised Fitzcharles that he was on his way to the Post Office to mail the complaint to this Commission. Not only did Rittenbaugh provide Fitzcharles with information about the complaint, he also showed the completed notarized complaint form to her. Rittenbaugh allowed Fitzcharles to copy both the front and back of the complaint. Although the Rittenbaugh complaint was not received at this Commission until February 24, 1997, an article appeared in the Pottstown Mercury on Sunday, February 23, 1997 which noted that Rittenbaugh filed a complaint against Supervisor Ewald and provided the details of the complaint. The article also contained commentary by Ewald as to why such action was being done through the press and this Commission rather than at a public meeting. On February 25, 1997, this Commission's Executive Director notified Rittenbaugh by letter that his complaint failed to state a cause of action under Act 9 of 1989 so that no investigation would be commenced. In that regard, Dennis Hiller is not a member of the immediate family of Ewald nor is Safe Play Services a business with which Ewald is associated. Rittenbaugh, 97- 019 -C2 Page 12 The above constitutes the material facts of this case as submitted by the parties on the pleadings. The Investigative Division has filed a Brief wherein various arguments are proffered in support of its position. In particular, the Investigative Division asserts that because Rittenbaugh disclosed to another person information relating to a complaint, a violation of Section 8(k) occurred. As to wrongful use of act, a violation of Section 10.1(a)(2) is proffered based upon arguments of legislative intent and statutory construction. The Investigative Division cites legislative debate (Legislative Journal, House No. 14, p. 255, of February 14, 1989) regarding the need of the General Assembly to address instances where the Ethics Law is misused by the disclosure of information about a complaint which is filed against an incumbent candidate shortly before election time, thus generating negative publicity against the incumbent who would have no recourse as to such conduct. As to statutory construction, the Investigative Division cites 1 Pa.C.S.A. § 1902, the Rules for Statutory Construction, which provides in part that words used in the past or present tense include the future. The Investigative Division deduces that the phrase "had been filed" in Section 10.1(a)(2) must then include and also mean "will be filed" (Investigative Division Brief, page 9). Finally, the Investigative Division argues that there was public disclosure on the theory that Rittenbaugh knew or could reasonably anticipate that his disclosure to the reporter would become public, citing General Motors Corporation v. Toyota Motor Company, 467 F. Supp. 1142, Yakin, Order No. 999, inter Alia. Rittenbaugh has chosen not to file a Brief. Having summarized the above relevant facts and arguments of the parties, we must now determine whether the actions of Rittenbaugh violated Sections 8(k), 10.1(a)(1) or (2) of Act 9 of 1989. We shall first consider whether violations occurred of Sections 10.1(a)(1) and (2) of Act 9 of 1989. We must determine whether the complaint was filed without probable cause and primarily for a purpose other than reporting a violation of the Ethics Law or whether Rittenbaugh publicly disclosed or caused to be disclosed that a complaint had been filed against Ewald. Section 10.1(a)(1) of the Ethics Law, in part, requires both that the filing of the complaint occurred without probable cause and was made primarily for a purpose other than that of reporting a violation of the Ethics Law. As to Section 10.1(a)(1), the facts fail to establish by clear and convincing proof that the filing of the complaint by Rittenbaugh was done without probable cause and primarily for a purpose other than that of reporting an Ethics Law violation. Rittenbaugh picked up on the criticism that Supervisor Sauser made against Ewald as to the playground contract and used that as the basis for his complaint against Ewald. Although there is evidence to show that Rittenbaugh made disclosure of the complaint, the evidence is not sufficient to establish that the filing of the complaint implicated Section 10.1(a)(1). We know that Hiller is neither a member of Ewald's immediate family nor is Safe Play Services a business with which Ewald is associated. However, such facts and the other Findings do not rise to the level of clear and convincing proof that the complaint was filed without probable cause and primarily for a purpose other than that Rittenbaugh, 97- 019 -C2 Page 13 of reporting a violation of the Ethics Law. Accordingly, we find that Rittenbaugh did not violate Section 10.1(a)(1) as to the complaint he filed against Ewald. We shall now consider that aspect of the allegation which involves Section 10.1(a)(2) of the Ethics Law. This Section requires that a confidentiality breach occur by the public disclosure or the causality of such disclosure of a complaint that had been filed. See, In Re: Ms. A, Order No. 1056. We see two issues as to the application of Section 10.1(a)(2): whether there was a public disclosure or causality for such disclosure of the complaint and whether such disclosure involved a complaint that had been filed with this Commission. The first issue involves the meanings of the word "publicly" and the phrase "caused to be disclosed." The second issue involves the significance of the words "had been." Public disclosure requires the divulging of the complaint to two or more people. In Re: Ms. A, supra. There was a communication and disclosure by Rittenbaugh to one reporter but there was also a disclosure, which he caused that resulted in the publication of the article in the newspaper. Since such disclosure was made to more than one person, it was a public disclosure under Section 10.1(a)(2). The actions by Rittenbaugh in disclosing this information to the reporter thus caused to ha disclosed the complaint he filed against Ewald. Hence, the first criteria of Section 10.1(a)(2) has been met. As to the second criteria, although the complaint had not been filed at the time of such public disclosure, Section 10.1(a)(2), when read in conjunction with the Rules of Statutory Construction, 1 Pa.C.S.A. § 1902, makes it clear that a violation can occur even if the complaint is received at the Commission after public disclosure is made. In this case, Rittenbaugh prepared a complaint, showed it to a reporter for publication in the newspaper, and then mailed the complaint to this Commission. Such action was taken to generate negative publicity against Ewald who was running for reelection. This is precisely the type of conduct that Section 10.1(a)(2) of the Ethics Law prohibits. See, Legislative Journal, supra. To say that a wrongful use of act did not occur under these circumstances would constitute a nullification of Section 10.1(a)(2) of the Ethics Law. All that a person would have to do to avoid Section 10.1(a)(2) would be to complete a complaint form against some political opponent, engage in public dissemination to inflict political injury upon that opponent and after such nefarious activity was completed, mail the complaint form so that it would arrive after disclosure, thereby ensuring that the complaint had not been filed at the time of disclosure. The General Assembly never intended such an absurd result. 1 Pa.C.S.A. 1922(1). Rittenbaugh violated Section 10.1(a)(2) of the Ethics Law when he publicly disclosed the complaint he filed with this Commission against Ewald. We shall now consider whether a violation of Section 8(k) of Act 9 of 1989 occurred in this case. Section 8(k) prohibits, in part, a person from disclosing or acknowledging to any other person information relating to a complaint, preliminary inquiry, or investigation before the Commission. The phraseology of Section 8(k) involving the disclosure of the complaint which is pending before the Commission, encompasses a complaint which will to pending before the Commission for the reasons set forth above. Again, to hold otherwise would lead to an absurd result that Section 8(k) could be nullified by simply timing the filing of a complaint. Rittenbaugh, 97- 019 -C2 Page 14 In the instant matter, whether a disclosure was made by Rittenbaugh turns upon whether he divulged such information to Fitzcharles. The facts establish that Rittenbaugh disclosed to Fitzcharles information regarding a complaint that Rittenbaugh planned to file against Ewald. Rittenbaugh showed to Fitzcharles the actual complaint which contained the charge against Ewald. Rittenbaugh allowed Fitzcharles to photocopy the complaint. The findings unequivocally establish that Rittenbaugh disclosed information about the complaint to Fitzcharles. Section 8(g) of the Ethics Law requires that a violation be found based upon clear and convincing proof. Since the record establishes by such proof that Rittenbaugh made a disclosure about the complaint he filed against Ewald, Rittenbaugh violated Section 8(k) of Act 9 of 1989. Neary, Order No. 613 -R. Chief Counsel is directed to release a non - redacted copy of this Order at such time when this determination becomes a public document. IV. CONCLUSIONS OF LAW: 1. Rittenbaugh, as a private citizen and resident of Charlestown Township, is subject to the provisions of Act 9 of 1989. 2. Rittenbaugh violated Section 8(k) of Act 9 of 1989 when he breached confidentiality as to the complaint he filed against Ewald. 3. Rittenbaugh did not violate Section 10.1(a)(1) of Act 9 of 1989 regarding a complaint he filed against Ewald based upon a lack of clear and convincing proof. 4. Rittenbaugh violated Section 10.1(a)(2) of the Ethics Law when he caused to be publicly disclosed the complaint he filed with this Commission against Ewald. In Re: Clarence Rittenbaugh ORDER NO. 1074 File Docket: 97- 019 -C2 (A &B) Date Decided: 1/14/98 Date Mailed: 1/26/98 1. Rittenbaugh, as a private citizen and resident of Charlestown Township, violated Section 8(k) of Act 9 of 1989 when he breached confidentiality as to the complaint he filed with this Commission. 2. Rittenbaugh did not violate Section 10.1(a)(1) of Act 9 of 1989 regarding a complaint he filed with this Commission based upon a lack of clear and convincing proof. 3. Rittenbaugh violated Section 10.1(a)(2) of the Ethics Law when he caused to be publicly disclosed the complaint he filed with this Commission against Ewald. 4. Chief Counsel is directed to release a non - redacted copy of this Order at such time when this determination becomes a public document. BY THE COMMISSION, cYC I t 1.) I J6 DANEEN E. REESE, CHAIR Commissioner Allan M. Kluger dissents only as to the finding of a violation of Section 10.1(a)(2) of Act 9 of 1989.