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In Re: Complainant A
STATE ETHICS COMMISSION
FINANCE BUILDING
(ON
FACSIMILE: 717-787-0806
WEBSITE: y mw,etb!cs.pa.goy
File Docket: ID # 20-033
LD # 20-033-WUA (A)
X-ref. Case No, 20-026
Date Decided: 6/23/21
Date Mailed: 6/29/21
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Melanie DePalma
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 §Leq.
Procedurally, the Investigative Division of the State Ethics Commission conducted a
preliminary inquiry under case number 20-026 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 20-026 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. §
I I 10(c); 51 Pa. Code § 253(c)(2). Any such appeal must be in writing and must be actually
received at this Commission within thirty (30) days of the mailing date of this preliminary
determination, pursuant to 51 Pa, Code § § 25A(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. § I I I 0(c); 51 Pa. Code § 25A(b)(1)), The Subject's answer to the rule must
contain specific 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
In Re: Complainant A
ID # 20-033/LD # 20-033-WUA (A)
Page 2
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 by clear and convincing
evidence. 51 Pa. Code § 25.4(b)(2). This Commission will then make a final determination.
I. FINDINGS:
1. Since on or about [month, year], the Subject has served as a [positions held] for [Political
Subdivision].
2. Complainant A filed a complaint with this Commission against the Subject (case number 20-
026), 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 Preliminary Inquiry failed to establish sufficient evidence that the
Subject utilized the authority of his/her public position resulting in a pecuniary benefit for
his/herself, members of their immediate family, and/or a business which with they were
associated. 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.
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].
Complainant A filed a complaint with this Commission against the Subject (case number 20-
026), 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 Preliminary Inquiry failed to establish sufficient evidence that the Subject
utilized the authority of his/her public position resulting in a pecuniary benefit for his/herself,
In Re: Complainant A
ID # 20-033/LD # 20-033-WUA (A)
Page 3
members of their immediate family, and/or a business which with they were associated. 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 Subj cot were based 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
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. §§ l I I0(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. § l 102.
In Re: Complainant A
ID # 20-033/LD # 20-033-WUA (A)
Page 4
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 Subject, 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 presented 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
facts 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.
III. CONCLUSIONS OF LAW:
As a [position held] for [Political Subdivision] since on or about [month, year], the
individual referred to herein as the "Subject" has been a public official subject to the
provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101
et M.
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 20-026.
3. Under the facts and circumstances presented in this matter, there is no basis for concluding
that the complaint filed against the Subject (case number 20-026) was frivolous or was
without probable cause.
In Re: Complainant A File Docket: ID 9 20-033
LD 9 20-033-WUA (A)
Date Decided: 6/23/21
Date Mailed: 6/29/21
ORDER NO. 1790
1, 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 sec.., with respect to the complaint against the Subject under case
number 20-026,
2. 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. Colafella, Cha)'117/2