HomeMy WebLinkAbout613-R NearyMs. Kathleen Neary
c/o Thomas P. Hamilton, Jr., Esquire
Richard, DiSanti, Hamilton,
Gallagher & Paul
P.O. Box 900
Media, PA 19063 -0900
Re: 86 -047 -C
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
Order No. 613 -R
Date Decided: March 10, 1988
Date Mailed: March 16, 1988
Dear Ms. Neary:
The Ethics Commission has received a complaint regarding you and a
possible violation of Act 170 of 1978. On January 28, 1988, a hearing on the
matter was conducted and relevant evidence and testimony was presented. The
Commission has now completed its investigation. The individual allegations,
.onclusions, and findings on which those conclusions are based are as
follows:
I. Allegation: That you violated Section 8(a) of the State Ethics Act which
requires confidentiality of State Ethics Commission investigations, in that
you disclosed the existence of a Commission investigation.
A. Findings:
1. The following stipulations of facts have been agreed thereto.
a. That Kathleen Neary is a citizen and resident of Upper Chichester
Township, Delaware County, State of Pennsylvania, and of the United
States.
b. In 1985, a municipal primary election was scheduled for the office of
Chichester Board of School Directors on May 21, 1985.
c. The primary election candidates for the Chichester School District
Board of School Directors on both the Republican and Democratic
ballots were S. Ann Schmidt and William McClay.
l . Kathleer - '.;gar; ; .
Page 2
c' Prior to the election, Kathleen Neary was a participant in the
efforts made on behalf of the candidacy of S. Ann Schmidt. In the
1985 municipal primary election for Chichester School Board, Willi "i
McClay was the incumbent candidate, and Ann Schmidt was the
challenging candidate.
r. Prior to May 2, 1985, Kathleen Neary had concluded, as a result of
her attendance at public meetings and review of public records, that
School Board member William McClay had behaved improperly in his
office, and as a result of that conclusion had filed a complain:, •.ii" '
the State Ethics Commission of the Commonwealth of Pennsylvania i„
the form which is attached hereto and marked Exhibit A; sa :
complaint was received by the Commission on or about May 2..,, 1985.
(Exhibit A is not attached to this Order since it is a +reac:y part of
the record).
f. Prior to the May 21, 1985 election, Kathleen Neary participated it
the preparation of a campaign handout on behalf of the candidacy of
Ann Schmidt entitled, Who Is Representing the Fourth Ward ? ". A cop;
of the campaign handout is attached hereto and marked Exhibit B.
(Exhibit B is not attached to this Order since it is already part of
the record).
Prior to her sending the document marked Exhibit A to the State
Ethics Commission, Kathleen Neary had advised Ann Schmidt of her
intention to file a complaint with the State Ethics Commissio-., and
of the substantive matters which she, Kathleen Neary, felt warranted
the filing of the complaint. In addition, prior to filing fhe
complaint, and subsequent thereto, Kathleen Neary advised Ann Schmidt
that an investigation of her complaint would be required.
The document marked Exhibit B was distributed to residents of tie
Fourth Ward of Upper Chichester Township on the evening of Sunday,
May 19th, and the afternoon of Monday, May 20th, 1985, in advance of
the May 21st election.
Subsequent to June 7, 1985, Kathleen Neary received correspondence
r rom Edward M. Seladones of the State Ethics Commission dated June 7
1985, to which correspondence was attached correspondence also dated
June 7, 1985 from Edward M. Seladones to Mr. William McClay; copies
et those respective letters are attached hereto and marked Exhibits D
and E.
The campaign handout referred to in Finding 1 -F contained, in part,
the following: "the S;.ate Ethics Commission is investigating whethea
Mr. McClay's actions are improper." Exhibit SEC -10B.
!i..: handout a';so included tLe :oilowing: "paid for by Ann Schmidt."
Ms. Kathleen Neary
Page 3
3. By letter dated May 15, 1985, the Executive Director of the State Ethics
Commission advised you inter al is that your sworn complaint of May 2, 1985 had
been received, that you would be informed of subsequent actions and lastly as
follows in the final paragraph of said letter:
Furthermore, Section 8(a) of the Ethics Act provides
that "all Commission proceedings and records relating to an
investigation shall be confidential until a final
determination is made by the Commission." In addition,
Section 9(e) of the Ethics Act is applicable and because
of its importance, ..tc halm reprint :0 i
side of this letter. As a complainant, please read these
requirements which apply to you.
4. By letter of June 7, 1985, you were advised by the Executive Director of
the State Ethics Commission, in part, both of the confidentiality requirements
of Section 8(a) of the Ethics Act as well as criminal penalties contained in
Section 9(e) of the Act.
5. On May 2, 1986, the State Ethics Commission issued Order No. 489 to Mr.
McClay concluding that there had been no violation of the State Ethics Act in
that neither Mr. McClay nor the entities with which he was associated received
any financial gain as a result of his actions.
6. By letter dated August 12, 1987, from your attorney, you deny that there
was any violation of the State Ethics Act.
a. This letter indicates that you only informed Ms. Schmidt that a
complaint regarding Mr. McClay had been filed and that under the law
an investigation was required.
b. At the time that
disclosure could
Ethics Act.
7. Frank Finegan, Special
Lestified as follows:
this statement was made, you had no idea that the
be considered in violation of Section 8(a) of the
Investigator for the State Ethics Commission,
a. That he was assigned to investigate the case as to the allegations
involving William McClay.
b. The case against Mr. McClay was initiated by the filing of a
complaint by you under notarization of signature on April 29, 1985.
c. That the reverse side of the complaint filed by you contained the
confidentiality and penalty provisions for violations of the
provisions of the Ethics Act.
t , Kathd Ntaar:
i ac ,ia 4
• He i ntervi eled you on August 5, 1985, wherein he advised you as to
ca : "idential ity requirements and that said requirements would
continue until the final determination of the State Ethics
3mmission.
(1) You mentioned telephone conversations with Executive Director.,
(2) He was told by you that you received the May 15, 1985 letter
but that the reverse side was blank.
(3) The May 15, 1985, letter does quote Section 8(a) of t" Ethics
Act.
(4) That you had knowledge of the confidentiality recuiraements
prior to the August 5th interview through statements of
Executive Director Edward M. Seladones.
em That he interviewed you on November 7, 1985, wherein you stated that .
or, felt that there was no breech of confidentiality becac se the
campaign flyer was developed by a group of five individua`Es who
. orked on Mrs. Schmidt's campaign.
f. That an investigation would not be commenced until the State Ethics
;onmi ssi on determined that it had jurisdiction.
: ".ft ?r a complaint would be filed with the State Ethics Commission,
the :e 's a two step prose: s of a ' r, ry rev : ew fo11 o';.'ed by the
commencement of an investigation.
g.
That when the investigation as to your complaint was assigned to hin
he reviewed it and started his field investigation on August 5th.
.. The following testimony was given by Mr. Edward M. Seladones:
a. As Executive Director for the State Ethics Commission from April,
1979 to December, 1986, he was familiar with investigation
procedures.
b. That when a complaint was received, a preliminary review was done to
determine whether the individual and complained acts were under the
State Ethics Commission jurisdiction as well as whether there was
sufficient information to form a reasonable belief that the law may
have been violated.
If the three requirements above were met, an investigation was
commenced by sending a five -day letter.
Ms. Kathleen Neary
Page 5
d. A five -day letter outlined the allegations and a notice of
confidentiality.
e. The acknowledgement letter as to a complaint contains Warnings as to
confidentiality.
f. He had several telephone conversations with you before and after the
primary election.
(1) One telephone conversation related to the time frame and nature
of the investigation.
(2) Another telephone conversation related to the distribution of
the campaign flyer which contained the notation concerning the
State Ethics Commission investigation of Mr. McClay. The call
was made prior to the commencement of the State Ethics
Commission investigation.
In a conversation with you concerning the election handout, part of
the conversation related to whether an investigation would be
commenced and part related to the requirement of confidentiality.
h. That his original letter of May 15, 1985 was blank on the reverse
side, but the complaint form you signed had the confidentiality
information.
g.
(1) The May 15th letter did recite the confidentiality provisions
of Section 8(a) of the Ethics Act.
i. That the investigation would have commenced within a period up to
five days prior to June 7th.
9. William McClay testified as follows:
a. That he was the School Director in Chichester School District in
1984/85 wherein you were a teacher and president of the Education
Association.
b. The election flyer in question was circulated but he became aware of
it only the day before the election.
c. The State Ethics Commission ruled on the allegations made against him
and he was not guilty.
10. You gave the following testimony:
a. That when you filed the complaint, you read the language on the back
as to Sections 408 and 409 of the Ethics Act.
°-. Kathleen Neary
rage 6
9.
b. You read the Ethics Act and discussed it 'iith Ms. Schmidt prior to
the initiation of the flyer.
c. Y ^u clnc'iuded that a couple of votes at the February School Board
meeting were inappropriate and thereafter called the State E2.?ics
Commissi', for the complaint form which you completed.
;. That you received no contact from the State Ethics Commission prior
to the May 15th letter which you received the Tuesday or Wednesday of
the following week.
(1) The reverse side of the letter was blank.
(2) You thought an investigation was already underway.
e. Mr. Seladones told you in "a telephone conversation that the phrase
"is investigating" was inappropriate and that he would send you a
letter telling you how to conduct yourself.
f. You reviewed the language on the complaint form but your
understanding was that while the State Ethics Commission could riot
reveal your name as conpiainain:, you were not privy to those
restrictions.
In reference to Section 9 of the Ethics Act concerning
to confidentiality by "any b r Sbn " 1! amps that Vrn„
person'.
You didn't get clarification
know that you were wrong.
assert, through your counsel
The regulations of the State
Act by including prel i mi nary
restriction.
violations
•o "a r"'
The purpose of the flyer was to inform the public of Mr. Mehl?y
votes and to defeat him in the election.
on confidentiality because you die,i.'t
the following legal arguments:
Ethics Commission go beyond the Ethics
investigations under the confidentiality
That you were misled by the terms of the law.
c. ;'ny J`i sciosure prior , o the commencement of z.n investigation can not
be the disclosure of the matter of those proceedings.
r There are constitutional questions of free speech concerning
publishing matters in a public election campaign.
Ms. Kathleen Neary
Page 7
B. Discussion: Section 8(a) of the Ethics Act provides in part:
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...
65 P.S. §408(a).
It is further provided in part of Section 9(e) of the Ethics Act:
Section 9. Penalties.
(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 fear, or be both fined
and iron^ c 4 on . , , 65 P c g4n91r
Section 8(a) essentially provides that both the Commission proceedings
and records relating to the investigation shall be confidential until the
matter is finally concluded by the Commission. Furthermore, Section 9(e)
provides that a violation of confidentiality constitutes a misdemeanor which
carries a maximum fine of $1,000 or imprisonment of up to one year or both.
In this case, you filed the complaint with the State Ethics Commission on
May 2, 1985 against William McClay. That complaint quoted the confidentiality
provisions of Section 8(a) of the Act as well as the penalty provisions of
Section 9(e) for violating confidentiality. You acknowledge reading the
foregoing two provisions when you filed the complaint. You also received a
letter of the State Ethics Commission dated May 15, 1985 which contained the
confidentiality provisions of Section 8(a). Nevertheless, as a campaign
worker for Ms. Schmidt, who was the opposition candidate to Mr. McClay, you
distributed the campaign flyers which contained the statement that the State
Ethics Commission was investigating Mr. McClay. The distribution of the flyer
was part of an effort to defeat Mr. McClay which you readily admit. You
knowingly and deliberately violated Section 8(a) of the Ethics Act by filing a
sworn complaint against Mr. McClay and then disclosing that fact. It is
especially disconcerting that you attempted to use the legal processes of this
Commission as part of a machination to defeat Mr. McClay, that is, file a
complaint against an opposition candidate and then disclose that fact as a
means of defeating him in the election. This Commission finds your testimony
Mc K .t hl cacti 140A •••r
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:hat you only though" that confidentiality applied to staff of the State
Ethics Commission or that confidentiality did not apply because an
: nvestigation had not started at that point in time not to be credible.
Confidentiality applies to any person' and you admitted that you fall within
that class.
Under these facts and circumstances, you violated Section 6(a) of the
Ethics Act.
You argue, however, that confidentiality does not attach during a
r°cliriinary investigation and any disclosure prior to the commencement of
. ihi.estigation cannot constitute a disclosure of such proceedings. If this
rommi ssi on were to accept such a strained construction of "proceedings" the
result would be the total negation of confidentiality. Thus, any person could
'smear" a public official /employee through the mechanism of quick timing, tha
file a complaint and immediately disclose same prior to the actual
commencement of an investigation. Neither the language of the Ethics Act nor
legislative intendment supports such an interpretation.
Turning to the matter of the constitutionally guaranteed right of freedom
of speech, the focus of this inquiry does not concern the unquestioned right
to publish information on the voting record of an opposition candidate or
research that has been developed; this matter concerns the violation of a
a:tetutory mandated confidentiality. Confidentiality not only relates to a
respondent such as Mr. McClay but also to complainants. It must be restated
that it is particularly dismaying that the State Ethics Commission process was
.ii sused for the purpose of defeating an opposition candidate.
Lastly, it must be noted that the facts in this case are distinguishable
om the Schmidt, Order No. 460, because there the respondent was unaware of
.he confidentiality requirements of the Ethics Act. However, in the instant
:ase, you have acknowledged that you were aware of the confidentiality
provision and you nevertheless violated the Act by using that information to
the benefit of your candidate and to the consequent detriment of the opposing
candidate who lost the election.
Based upon the intentional violation Section of Section 8(a) of the
Ethics Act, this Commission will refer this matter to the appropriate law
enforcement authority with a strong recommendation for prosecution.
C. Conclusion: You violated Section 8(a) of the Ethics Act in that you file
complaF tan gainst an opposition candidate and then knowingly disclosed that
Fact as part of a plan to defeat that candidate in the primary election.
Ms. Kathleen Neary
Page 9
This matter will be referred to the appropriate law enforcement authority
with a strong recommendation for prosecution.
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 5 days after service (defined
as mailing).
By the Commission, ee
Ott G. Sieber Pancoast
Chai rma n