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HomeMy WebLinkAbout339 BagnoniMr. Mario S. Bagnoni Erie City Council 4505 Peach Street Erie, PA 16509 Re: No. 83 -141 -C —2 4 : C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION September 28, 1984 Order No. 339 Dear Mr. Bagnoni : The State Ethics Commission has received a complaint regarding you and a possible violation of kt 170 of 1978. The Commission has now completed its investigation. The individual allegations, conclusions, and findings on which those conclusions are based are as follows: That you violated the confidentiality of a Commission investigation of Mr. Robert E. Glowacki when you made public statements or information available to the public about this investigation thereby violating Section 9(e) of the Ethics kt, 65 P.S. 409(e). A. Findings: 1. You served as an Erie City Councilmember from at least September, 1982 until June 28, 1984 and as such are subject to the State Ethics Act. 2. On October 19, 1982, the State Ethics Commission received a sworn complaint alleging that Councilmember Robert Glowacki had violated the Ethics Act. a. The complaint, received on October 19, 1982, was sworn to on October 15, 1982. Mario Bagnoni Page 2 September 28, 1984 b. The complaint was typed in the Erie City Clerk's office; personnel in this office often type letters on City stationery for City Councilmembers. 3. On October 16, 1982 an article appeared in the Erie Daily Times stating that a complaint against Councilmember Glowacki had been filed with the State Ethics Commission. It included the following: a. Some of the details of the complaint. b. That you ordered City Clerk James Klemm to file the complaint. 4. In this case, letters from the State Ethics Commission notifying the complainant and respondent that the Commission was commencing an investigation were mailed on October 29, 1982. a. These are standard letters required by law. b. These letters state that the investigation is confidential and that both parties are bound by that confidentiality requirement. 5. The first contacts by the State Ethics Commission with anyone, except by the letters mentioned in the previous finding, were made in November of 1982. In addition, the State Ethics Commission Investigator also notifies all persons who are interviewed or provide information with respect to an investigation that confidentiality is required. 6. On November 8, 1982 you had a letter to the State Ethics Commission prepared. It included the following: a. An attached list of all properties for which Mr. Robert E. Glowacki, City Council President, had filed assessment appeals with the Erie County Board of Assessments. b. Your request that the information be filed with the State Ethics Commission investigation. c. This letter was received in the State Ethics Commission office on November 12, 1982. 7. A copy of this letter of November 8, 1982 was maintained in a miscellaneous correspondence file in the Erie City Clerk's office. This is not a private file and all Councilmembers have access to it. 8. At an Erie City Council meeting, you made a motion that the City ask the County Board of Assessment to "remand all appeals filed by Robert Glowacki to the Erie County Courts for an impartial ruling." Mario Bagnoni September 28, 1984 Page 3 9. At another Erie City Council meeting, you made remarks about Mr. Glowacki's assessment company, including the fact that he had "got a reduction of 3.6 million dollars" in assessments and had "netted $129,914.28." B. Discussion: Section 8(a) of the Ethics Act states: Section 8. Investigations by the Commission. (a) Upon a complaint signed under penalty of perjury by any person or upon its own motion, the commission shall investigate any alleged violation of this act. All commission proceedings and records relating to an investigation shall be confidential until a final determination is made by the commission. The executive director shall notify any person under investigation by the commission of the investigation and of the nature of the alleged violation within five days of the commencement of the investigation. Within 15 days of the filing of a sworn complaint by a person alleging a violation, and every 30 days thereafter until the matter is terminated, the executive director shall notify the complainant of the action taken to date by the commission together with the reasons for such action or nonaction. 65 P.S. 408(a). Section 8(a) requires that all Commission proceedings and records relating to an investigation shall be confidential until a final determination is made by the Commission. This confidentiality requirement applies to the fact that the Commission is conducting an investigation. It does not apply to the issue being investigated. To extend the prohibition of Section 8(a) to the issue under investigation would give any person who filed a sworn complaint and the State Ethics Commission the authority to affect public discussion and knowledge of issues which are relevant to the effectiveness and efficiency of governmental operations and citizens' rights to know what their government is doing. In some cases, such an extensive, pervasive prohibition could possibly inhibit First Amendment rights of free speech. That is far beyond our reach and we will confine our discussion and decision here to whether the confidentiality of the existence of our investigation was broken. Mario Bagnoni Page 4 September 28, 1984 In accordance with Commission regulations, a Commission investigation does not commence until a sworn complaint is received, reviewed, a determination made that the activities and persons involved in the complaint are within the Commission's jurisdiction and that the complaint contains sufficient information to warrant commencement of a formal investigation. See - 1 Pa. Code 2.32. Within five days of commencing an investigation, the Commission notifies the respondent and complainant that an investigation is being undertaken and that they are bound by the confidentiality requirements of Section 8(a). There is no reasonable basis to assume that the parties involved in an investigation know about their obligations under the Ethics Act until we have provided them with this notification. In the Glowacki case, the letter notifying the respondent and complainant that we were commencing an investigation and that they were bound by the confidentiality requirements was mailed on October 29, 1982 and we assume received a few days later. The motions and remarks you made at Council meetings did not violate the confidentiality requirements of Section 8(a) because there was no disclosure of our investigation. The newspaper article of October 16th appeared before our notification letters to the complainant and the respondent and before any contact with any person who might have provided information. Under these circumstances, we find insufficient evidence to conclude that you violated Section 3(a) of the Ethics Act because we have no evidence that you were aware of confidentiality requirements or that you released information to the newspaper despite knowledge of these requirements. The only action or document for which we find you were responsible and which made our investigation known had occurred after the complainant and respondent had been notified of the confidentiality requirements of the Ethics Act was your November 8, 1982 letter. There is no evidence that the letter was made available to the general public or processed in a manner in which it would normally reach the public. According to our information, it was filed in a place which was accessible only to Councilmembers and workers in the City Clerk's office. However, we are disturbed by the careless handling and filing of a document relating to an investigation after persons involved were informed of the confidentiality requirements in our Act. At this stage of an investigation, it is important that confidentiality is maintained and reasonable to expect that the parties involved will take steps to maintain that confidentiality. The November 8th letter was signed by you and you were responsible for the processing and filing. Unfortunately, you displayed a disturbing lack of concern by having this letter filed in a miscellaneous file which was available to other Councilmembers, staff in the City Clerk's office, and possibly other County employees. We cannot discern whether or not this Mario Bagnoni Page 5 HBC /jc September 28, 1984 action was deliberate but we are certain that your imprudence created an unnecessary opportunity to breach the confidentiality which our investigations require and the respondent has a right to expect. While there is insufficient evidence to conclude that you violated Section 8(a) of the Ethics Act, we must express our dismay and strong disapproval of your handling of the November 8, 1982 documents. A public official with your responsibilities and experience is expected to use better judgement. C. Conclusion: We find insufficient evidence to conclude that you violated Section 8(a) of the Ethics Act and will take no further action on this matter. However, we must express our strong disapproval of your handling of documents which did pertain to an investigation of the Ethics Commission and our expectation that you avoid similar actions in the future. Our files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will be made available as a public document 15 days after service (defined as mailing) unless you file documentation with the Commission which justifies reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code 2.38. During this 15 -day period, no one, including the Respondent unless he waives his right to challenge this may violate this confidentiality by releasing, discussing or circulating this Order. Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). By the Co rber Chairman nner