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Home My WebLink About97-011 GormanOPINION OF THE COMMISSION John J. Cunningham, IV, Esquire Lamb, Windle & McErlane, P.C. 24 East Market Street Box 565 West Chester, PA 19381 -0565 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn Julius Uehlein DATE DECIDED: 5/30/97 DATE MAILED: 6/11/97 97 -011 Re: Confidentiality, Disclosure, Exceptions, Subject of Complaint /Preliminary Inquiry /Investigation, Respondent, Order. Dear Mr. Cunningham: This Opinion is issued in response to your advisory request letter of April 25, 1997. I. ISSUE: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a person who was the subject of a complaint, preliminary inquiry, and investigation before the State Ethics Commission with regard to his disclosure of information, records, or proceedings relating to same. II. FACTUAL BASIS FOR DETERMINATION: You have requested an advisory opinion from this Commission on behalf of Joseph Gorman ( "Gorman "). Gorman was the subject of a complaint, preliminary inquiry, and investigation which resulted in the issuance by this Commission of Gorman, Order No. 1041. You contend that pursuant to Section 8(k)(8) of the Ethics Law, 65 P.S. §408(k)(8), Gorman is free to disclose any information, records, or Cunningham /Gorman, 97 -011 June 11, 1997 Page 2 proceedings which he has in his possession that relate to the aforesaid complaint, preliminary inquiry, and investigation. You contend that your view is supported by the clear intention of Section 8(k)(8) which you propose is to protect the subject of the investigation from publication of the confidential information, unless that person chooses to publish the information himself. You ask whether there is any provision of the Ethics Law or the State Ethics Commission Regulations which this Commission would contend could be violated through such disclosure by Joseph Gorman. At the public meeting of May 30, 1997, when your request for an Opinion was considered by the Commission, Michael F. X. Coll, Solicitor for the Borough of Lansdowne, made a statement on behalf of the Borough. Solicitor CoII advocated a two -step process. Solicitor Coll proposed as "step one" that Gorman be allowed, if he so desires, to disclose any documents or information that he acquired in the course of the investigation. "Step two," according to Solicitor Coll, would be to get the rest of any information, beyond what Gorman already has, that may have a bearing on the outcome of Gorman's case. John J. Contino, Esquire, Executive Director of the State Ethics Commission, requested and was granted an opportunity to respond to Solicitor Coll's statement. Speaking on behalf of the Investigative Division, Executive Director Contino stated that he was not taking a position as to Gorman's disclosure of the documents already in Gorman's possession, but that "step two" of Solicitor Coll's position, advocating that further files be opened, would be adamantly opposed by the Investigative Division. Executive Director Contino noted that the Ethics Law specifically mandates the confidentiality of the investigative files of the Commission. Executive Director Contino stated that any discovery of documents contained in the files beyond those types of documents required by law to be provided to the subject of such proceedings — such as exculpatory evidence or evidence that is intended to be used at the hearing — would be greatly opposed. Executive Director Contino pointed out that such other documents would include, for example, attorneys' work product which is routinely held as confidential by lawyers working on cases in administrative proceedings. III. DISCUSSION: It is initially noted that pursuant to Sections 7(10) and 7(1 of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, we do not engage in an independent investigation of the facts, nor do we speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. It is further initially noted that your request for an advisory may only be addressed with regard to prospective conduct. A reading of Sections 7(10) and 7(11) of the Ethics Law makes it clear that an opinion or advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, we may not issue an opinion or advice but any person may then submit a signed and sworn complaint which will be investigated by this Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. Gorman is a "person" as that term is defined under the Ethics Law: Cunningham /Gorman, 97 -011 June 11, 1997 Page 3 65 P.S. §402. Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. Section 8(k)(8) provides as follows: 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: • 65 P.S. §408(k)(8). (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; .. . In analyzing the question that you have presented, we are mindful that the Ethics Law provides for strict confidentiality at all stages of Commission proceedings as well as following the issuance of the final order (, 65 P.S. §§408(a), (c), (h), (I)). Section 408(h) states: "Orders which become final in accordance with the provisions of this section shall be available as public documents, but the files and records of the commission relating to the case shall remain confidential." 65 P.S. §408(h). The Ethics Law provides strict penalties for violation of the confidentiality of a Commission proceeding, which penalties may include a fine and /or imprisonment. 65 P.S. §408(e). The State Ethics Commission Regulations likewise require confidentiality at all stages of Commission proceedings, with only the final order being a public document (see, 51 Pa.Code § §21.1; 21.3; 21.4; 21.5; 21.25(1); 21.29(h)). Exceptions to these strict confidentiality requirements are to be narrowly construed. The request letter does not specifically identify what it is that Gorman proposes to disclose, but appears to mirror the language of Section 408(k) by characterizing that which is to be disclosed as "information, records, or proceedings" relating to the complaint, preliminary inquiry, and investigation of which Gorman was the subject. Based upon the facts which are before us, it is the opinion of this Commission that pursuant to Section 8(k)(8), Gorman may disclose information, records, or proceedings that are properly in his possession which relate to the complaint, preliminary inquiry, and investigation of which he was the subject. Cunninaham /Gorman, 97 -011 June 11, 1997 Page 4 We caution you that to whatever extent Gorman discloses such information, records, or proceedings, such disclosures may be addressed by others, including this Commission or its staff. We further caution you that a subject may not engage in "fishing expeditions" into the files and records of the Commission for information, records, proceedings, or other documents which the Commission is not required by law to provide to the subject, such as, for example, attorney work product. However, there are certain items that by law must be provided to the subject. For example, a subject is entitled to receive any exculpatory evidence and evidence that the Investigative Division intends to use at the hearing, 65 P.S. §408(e) and 51 Pa.Code §21.22, and such could properly be disclosed by the subject. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. IV. CONCLUSION: Joseph Gorman, as a person who was the subject of a complaint, preliminary inquiry, and investigation before this Commission, may, pursuant to Section 8(k)(8) of the Ethics Law, disclose information, records, or proceedings that are properly in his possession which relate to the complaint, preliminary inquiry, and investigation of which he was the subject. The propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, Daneen E. Reese Chair