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HomeMy WebLinkAbout1798 Complainant APHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMJLE: 717-787-0806 TOLL FREE: 1-80-932-0936 FINANCE BUILDING WEB31TE:!6M%pJhLc . �a. ov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 In Re: Complainant A File Docket: ID # 20-034 LD 4 20-034-WUA (A) X-ref- 1798 Case No. 19-041 Date Decided: 12/1/21 Date Mailed: 12/2/21 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 seq. Procedurally, the Investigative Division of the State Ethics Commission conducted a preliminary inquiry under case number 19-041 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 19-041was 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 I 0(c); 51 Pa. Code § 253(c)(2). Any such appeal must be in writing and must be received by this Commission within thirty (30) days of the mailing date of this preliminary determination, pursuant to 51 Pa. Code §§ 25.4(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.& § 111 0(c); 51 Pa. Code § 25.4(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 Ethics Act: (1) the dismissal of the complaint; (2) dismissal for lack of probable cause; or (3) In Re: Complainant A ID # 20-03 /LD # 20-034-WUA (A) Page 2 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. The Subject has served as a [position held] for [Political Subdivision]. 2. Complainant A filed a complaint with this Commission against the Subject (case number 19- 041), 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 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: The Subject has served as a [positions held] for [Political Subdivision]. Complainant A filed a complaint with this Commission against the Subject (case number 19- 041), 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, members of their immediate family, and/or a business which with they were associated. The Subject then filed with the Investigative Division a complaint alleging a wrongful use of Act by Complainant In Re: Complainant A ID # 20-03 ILD # 20-034-V UA (A) Page 3 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 Subject 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: § 111.0. 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. §§ I110(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. § 1102. In Re: Complainant A [D # 20-03 /LD # 20-034-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], 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 seq. 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 19-041. 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 19-041) was frivolous or was without probable cause. In Re: Complainant A Pile Docket: Date Decided Date Mailed: ID # 20-034 LD # 20-034-WUA (A) 12/1/21 12/2/21 ORDER NO. 1798 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 M., with respect to the complaint against the Subject under case number 19-041. 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, P6�" �d4" Nicholas A. Colafella, Cha'