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HomeMy WebLinkAbout1056 ConfidentialIn Re: Ms. A 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 B. Uehlein File Docket: ID# 96- 004 -C2 LD# 96- 004 -WUA (A &B) X -ref: Order No. 1056 Date Decided: 5/29/97 Date Mailed: 6/11/97 The Investigative Division of the State Ethics Commission conducted an investigation regarding a possible wrongful use of act and breach of confidentiality under the Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 agq., by the above - named "Complainant." Written notice of the specific allegation(s) was served at the commencement of the investigation. Upon completion of the investigation, the Investigative Division issued and served a Findings Report, which constituted the Investigation Division's Complaint against the "Complainant." An Answer was filed and a hearing was held. The record is complete. This is the determination of the Commission. The above -named "Complainant," who filed the original Complaint with the Commission, or the "Subject," the person against whom the Complaint was filed, may appeal this determination to the Commission. Any such appeal must be received at the Commission within thirty days of the date of mailing of this determination. A Complainant or Subject who files an appeal shall be directed and required to show cause why the Commission's determination should not become final. 51 Pa.Code §25.4. The files in this case will remain confidential during the above appeal period in accordance with Act 9 of 1989, 65 P.S. §408(h). Any person who violates confidentiality of the Ethics Law is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year, 65 P.S. §409(e). Confidentiality does not preclude discussing this case with an attorney at law. If the final determination of the Commission is that the Complainant has wrongfully used the Act, then pursuant to Section 10.1(c) of Act 9 of 1989, 65 P.S. §410.1(c), the Commission shall provide the name and address of the Complainant to the Subject, together with a copy of the final determination of the Commission. 96- 004 -C2 Page 2 I. ALLEGATION: That you, Ms. A, violated the following provisions of the State Ethics Act (Act 9 of 1989) when you disclosed and /or acknowledged to another person(s) information relating to the filing of a complaint against Mr. B with the Investigative Division of the State Ethics Commission. 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: (1) final orders of the commission as provided in subsection (h); (2) hearings conducted in public pursuant to subsection (g); (3) for the purpose of seeking advice of legal counsel; (4) filing an appeal from a commission order; (5) communicating with the commission or its staff, in the course of a preliminary inquiry, investigation, hearing or petition for reconsideration by the commission; (6) consulting with a law enforcement official or agency for the purpose of initiating, participating in or responding to an investigation or prosecution by the law enforcement official or agency; (7) testifying under oath before a governmental body or a similar body of the United States of America; (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; or 96- 004 -C2 Page 3 (9) such other exceptions as the commission, by regulation, may direct. 65 P.S. §408(k). Section 10.1. Wrongful use of act (a) A person who signs a complaint alleging a violation of this act against another is subject to liability for wrongful use of this act if: (1) the complaint was frivolous, as defined by this act, or without probable cause and made primarily for a purpose other than that of reporting a violation of this act; or (2) he publicly disclosed or caused to be disclosed that a complaint against a person had been filed with the commission. 65 P.S. §10.1(a). II. FINDINGS: A. Pleadings 1. The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Ms. A violated provisions of the State Ethics Act (Act 9 of 1989). 2. Upon review of the complaint by the Director of Investigations a recommendation was made to the Executive Director to commence a preliminary inquiry. 3. At the direction of the Executive Director, the Investigative Division initiated a preliminary inquiry on February 8, 1996. 4. The preliminary inquiry was completed within sixty days. 5. On April 8, 1996, a letter was forwarded to Ms. A by the Executive Director of the State Ethics Commission informing her that a complaint against her was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, No. Z 129 433 660. b. The domestic return receipt bore the signature of Ms. A with no delivery date listed. c. Said return receipt was received by the State Ethics Commission on April 15, 1996 indicating a delivery date some time between April 8 and 15, 1996. 6. The full investigation was commenced at the direction of the Executive Director of the State Ethics Commission. 96 -004 -C 2 Page 4 7. Periodic notice letters were forwarded to Ms. A in accordance with the provisions of the Ethics Law advising her of the general status of the investigation. 8. The Investigative Complaint was mailed to the Respondent on September 27, 1996. 9. Ms. A is a private citizen and resident of Township C, County D, Pennsylvania. a. Ms. A's mailing address is E. 10. On October 23, 1995, a sworn complaint was filed with the State Ethics Commission, by Ms. A, alleging that Township C Supervisor, Mr. B, violated provisions of the Public Official and Employee Ethics Law (Act 9 of 1989). a. The complaint was notarized on October 18, 1995. b. The complaint was executed by Ms. A, E. 11. The complaint received by the State Ethics Commission from Ms. A, was on Form SEC -3 REV. 5/90. a. The form contained instructions that included the following relevant statements: Important - any person filing a complaint with the State Ethics Commission should be aware of the following provisions of the Ethics Law: Section 8(k) (k) As a general rule, no person shall disclosed 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. Section 9 (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 $1,000.00 or imprisoned for not more than one year, or be both fined and imprisoned. b. This is the standard form utilized by the Ethics Commission for sworn complaints. 12. Ms. A's complaint against Township C Supervisor Mr. B, alleged that Mr. B used township equipment and directed township road workers, including himself, to cleanup his property. 96- 004 -C2 Page 5 a. Accompanying the complaint were the following documents: Time sheet for the period April 2, 1995, through April 15, 1995, indicating work that was performed at Mr. B's property on 04/10 and 04/11. Receipt from F, dated 04/10/95, in the amount of $12.00 for scrap metal from Mr. B's property, in the name of Township C, and signed by road worker Mr. G. - Payroll check #1646, dated 04/13/95, in the amount of $132.44, payable to Mr. B for hours worked during the payroll period 04/01- 04/14/95. 13. Prior to filing the complaint against Mr. B, Ms. A had attended the October 9, 1995, Township C Board of Supervisors Meeting, at which time she questioned whether Mr. B had utilized township workers to cleanup his property. The minutes reflect the following: "Ms. A questioned whether or not Mr. B had his property cleaned up by township workers on township time. Mr. H stated that on April 10 and 11, Mr. B had 2 workers and a township truck, along with Mr. B, cleaning up his property. Ms. A wanted to know what can be done about this. Mr. H stated that if a resident has a complaint, it can be made to the Ethics Commission and action can be taken by the Ethics Board. Ms. A then stated that she would like a copy of the payroll sheet for that period." Later, during that same meeting: "Mr. H stated in regards to Ms. A's complaint, Mr. B had workers Mr. G and Mr. I and Mr. B on his property on April 10 for approximately 4 hours each and Mr. I and Mr. B on his property on April 11 for approximately 2 hours each. On April 10, a receipt was turned in for $12.00, for junk at the salvage when he returned home from the State Convention in Hershey. Mr. J stated that he was aware of their (this) after the workers had come in on Monday. 14. The residences of Mr. K and Ms. A share a common property boundary. a. At the time, Mr. K was a candidate for the office of Township C Supervisor in the November, 1995, General Election. 15. Mr. K's contact with Ms. A was adversarial in nature, involving a letter to the editor, critical of Mr. K, which Ms. A submitted to the local newspaper, newspaper L. 16. Mr. K advised Ms. A that her allegations against him were unfounded. 17. Mr. K advised Ms. A that if she went ahead with submitting the letter he would file suit against her. 18. Ms. A did not disclose the nature of the allegations contained in her complaint to the Ethics Commission to Mr. K. 96- 004 -C2 Page 6 19. On November 1, 1995, newspaper L published Ms. A's letter, and a letter by Mr. K in response to that of Ms. A's. a. The 1995 General Election was held on Thursday, November 7, 1995. 20. Ms. A identified a copy of the complaint she filed with the Commission. a. Ms. A forwarded the complaint against Mr. B to the Ethics Commission shortly after it was notarized on October 18, 1995. b. Ms. A had become aware of Mr. B's conduct from a variety of individuals. B. Testimony 21. Mr. K is a citizen in Township C, County D. a. Mr. K was a candidate for Supervisor in 1995. b. Prior to the general election, Mr. K was contacted by a local newspaper. (1) An advertising person from the newspaper advised Mr. K that a derogatory ad about him was placed in the paper. (2) Mr. K went to the newspaper to review the ad. (a) The ad alleged that Mr. K was a violator of state and federal laws who should be rejected by the people. (3) Ms. A submitted the ad. (4) Mr. K telephoned Ms. A who would not allow Mr. K to come to her home but did talk to him on the telephone. (a) Mr. K told Ms. A that the information in the ad was untrue and that Ms. A could call Mr. B for verification. [1 ] Mr. K states that Ms. A responded about Mr. B by saying: "I would not talk to that crook. I have turned him in to the Ethics Commission, and he will be throwed out of office by the end of the year." (b) Prior to the telephone conversation, Mr. K asserts he was unaware that Ms. A turned Mr. B into the State Ethics Commission. (c) Before the telephone call, Mr. K never met Ms. A. 96- 004 -C2 Page 7 [11 Mr. K had exercised his right in the past to bar a company from mining within 300 feet of his property which limited mining operations on Ms. A's property. (5) Mr. K telephoned Mr. B to advise him about the telephone conversation Mr. K had with Ms. A. c. Mr. K placed an ad in the newspaper to counteract the ad placed by Ms. A. (1) From the telephone conversation Mr. K had with Ms. A, it was evident that the ad would not be pulled. d. Sometime after the newspaper ad was published, Mr. B advised Mr. K that he, Mr. B, was under State Ethics Commission investigation. (1) Mr. B wrote a letter to the editor in the same edition that the ad appeared. 22. Mr. B is a citizen in Township C, County D. a. Mr. B also holds the elective position of Supervisor in Township C. (1) Allegations arose that Mr. B used municipal employees for a personal matter. (a) Mr. B was contacted by the local paper that Ms. A brought up the allegations. (b) Mr. B became officially aware of the State Ethics Commission investigation when he received notice. b. Mr. K contacted Mr. B as a Supervisor because of complaints relating to strip mining at Ms. A's property which bordered Mr. K's property. c. Mr. B spoke with Mr. K about the conversation Mr. K had with Ms. A. (1) Mr. B only had a recollection of the Ms. A and Mr. K conversation as it was related to him by Mr. K. (2) Mr. B believed that Mr. K stated that during his conversation with Ms. A, she told him that she turned Mr. B into the State Ethics Commission or filed a complaint with the State Ethics Commission and that he would be removed from office. (3) Prior to Mr. K's call, Mr. B was unaware of any State Ethics Commission proceeding against him. d. The first mention of a State Ethics Commission investigation against Mr. B occurred at an October 9, 1995 meeting which Mr. B did not attend. e. Just prior to the election, Mr. B had a conversation with Ms. N, a friend of Ms. A. 96 -004 -C 2 Page 8 23. Ms. a. (1) When Mr. B mentioned Ms. A's name to Ms. N, Ms. N said that Mr. B "was going down the tubes." 0 is a P. When Ms. 0 interviewed Ms. A, Ms. 0 went over the confidentiality provisions of the Ethics Law. (1) Ms. A acknowledged that she understood the confidentiality provisions. b. Ms. A stated to Ms. 0 that she did not discuss Commission investigation when she (Ms. A) had the Mr. K. c. Ms. A made a comment about Mr. B "going down context of the newspaper article. 24. Ms. A is a citizen in Township C, County D. a. Ms. A states that she submitted the ad against Mr. K on October 26, 1995. b. Ms. A testified that Mr. K telephoned her on Friday, about her ad. the State Ethics conversation with the tubes" in the to the newspaper October 27,1995 (1) Ms. A asserts that she said nothing about the State Ethics Commission investigation in her conversation with Mr. K. c. Ms. A states that she read the newspaper article where Mr. B stated he welcomed the State Ethics Commission investigation. d. When Ms. A at a municipal board meeting questioned Mr. B's actions, Ms. A was told by another Supervisor that her recourse was to file a complaint. (1) Ms. A testified that she was concerned about confidentiality when she had to have the complaint notarized. e. Ms. A completed the State Ethics Commission complaint which was sent and received by the State Ethics Commission prior to her placing the ad. C. Documents 25. ID -5 is a State Ethics Commission complaint form which quotes the confidentiality provision of §§8(k), 9(e), and 10(a) and (b). 26. ID -6 is the Guide to Pennsylvania Public Official and Employee Ethics Law which provides information as to the confidentiality requirement of the Ethics Law. 96- 004 -C2 Page 9 III. DISCUSSION: Ms. A, is a resident and citizen of Township C, County D, Pennsylvania. As such, she is subject to the confidentiality and wrongful use of act provisions of Act 9 of 1989. Initially, it is noted that Section 9 of Act 9 of June 26, 1989 provides, in part, as follows: - This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto. Since the occurrences in this case transpired after the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 9 to determine whether the Ethics Act was violated. Section 8(k) of Act 9 of 1989 provides in part that no person shall disclose or acknowledge any information relating to a complaint, preliminary inquiry, investigation, hearing or reconsideration petition which is before the Commission. Section 8(k) further provides for nine exceptions which are not relevant to this case. Section 10.1 of Act 9 of 1989, the Wrongful Use of Act provision, provides in part that a Wrongful Use of Act occurs: if a complaint was frivolous, that is, filed in a grossly negligent manner without basis in law or fact; if a complaint was filed without probable cause and made primarily for a purpose other than reporting an Ethics Law violation; or if a person who filed a complaint publicly disclosed or caused to be disclosed that a complaint against another person was filed with the Commission. The issue before us is whether Ms. A violated Section 8(k) or Section 10.1(a)(2) of the State Ethics Act (Act 9 of 1989) as to the allegation that she disclosed and /or acknowledged to another person(s) information relating to the filing of a complaint against Mr. B with the Investigative Division of the State Ethics Commission. Having noted the issues and applicable law, we shall now summarize the salient facts. In October, 1995, Ms. A placed a newspaper ad which was critical of Mr. K who was a candidate for Supervisor in Township C. Before publishing the ad, the newspaper contacted Mr. K to advise him of its derogatory nature. After Mr. K reviewed the ad, he contacted Ms. A by telephone and asked if he could come to her home to discuss the ad. Although Ms. A did not allow Mr. K to come to her home, she discussed the ad with him over the telephone. Mr. K informed Ms. A that the article was untrue and that she could contact two individuals to verify his information. One of the two individuals was Mr. B, who was a Supervisor in Township C. When the subject of Mr. B arose, Mr. K contends but Ms. A denies that she made the following statement about Mr. B: "I would not talk to that crook. I have turned him in to the Ethics Commission, and he will be throwed out of office by the end of the 96- 004 -C2 Page 10 year." Ms. A did not pull the ad which ran in the newspaper. Mr. K ran a responsive ad and Mr. B submitted an article to the newspaper. Ms. A filed a complaint against Mr. B with this Commission. The genesis of the filing of that complaint appears to be an October 9, 1995 meeting of the Township C Board of Supervisors wherein Ms A inquired as to what action could be taken against Mr. B for utilizing Township personnel and equipment for a personal matter. One of the other Supervisors advised Ms. A that a complaint could be filed with this Commission. Ms. A filed a sworn complaint against Mr. B which was received by this Commission prior to her placing the ad in the local newspaper. Ms. A's ad was published approximately one week prior to the general election. Both the Investigative Division and Respondent in their respective Briefs proffer various arguments in support of their positions. The underlying theory for the Investigative Division's argument is that the record establishes a breach of confidentiality because neither Mr. K nor Mr. B had any way of knowing about the filing of the complaint with this Commission but for the comment that Ms. A made in the telephone conversation with Mr. K. The Respondent's underlying argument is that a complaint being filed against Mr. B was already public in light of certain newspaper articles as well as the inquiry by Ms. A as to Mr. B at the October 9, 1995 Board of Supervisors public meeting where Ms. A was advised that she could file a complaint with this Commission. Having summarized the above relevant facts and arguments of the parties, we must now determine whether the actions of Ms. A violated Section 8(k) of Act 9 of 1989. As to whether a violation of Section 8(k) of Act 9 of 1989 occurred in this case, the Ethics Law prohibits a person from disclosing or acknowledging to any other person information relating to a complaint, preliminary inquiry, or investigation before the Commission. In the instant matter, the issue of whether such a disclosure was made by Ms. A turns upon a factual issue of whether she made such a disclosure to Mr. K. The difficulty is that Ms. A denies that she disclosed filing a complaint against Mr. B in her telephone conversation with Mr. K while Mr. K asserts that she in fact made such a disclosure to him. In cases where there is diametrically opposed testimony by witnesses, it is our function as factfinder to make a credibility determination. In this case, we are unable to conclude that either of these witnesses is not credible, that is, we find both Mr. K and Ms. A to be credible witnesses. As for Mr. B, he only had a recollection of the conversation as related to him by Mr. K. Section 8(g) of the Ethics Law requires that a violation be found based upon clear and convincing proof. We do not find that there is clear and convincing proof that Ms. A made the alleged statement. We conclude that Ms. A did not violate Section 8(k) of Act 9 of 1989 because one witness's testimony contradicted by another, where credibility is not an issue and there is no other evidence, is not a basis for finding a breach of confidentiality. Turning to Section 10.1(a)(2) of Act 9 of 1989, we must determine whether there has been a wrongful use of act by Ms. A as to the above facts. We note that Section 10.1(a)(2) is more restrictive than Section 8(k) in that there is a requirement that a confidentiality breach occur by the complainant through a public disclosure. Yakin, Order 999. 96- 004 -C2 Page 11 Since neither the Ethics Law nor the Statutory Construction Act defines the term "publicly disclosed," we must look to judicial precedent for a definition. Since the word "disclosed" does not require clarification, our focus is limited to the word "publicly." In People v. Carman, 385 III. 23, 52 N.E.2d 197 (1943), the Court defined the term "publicly" as follows: ... [Publicly] signifies something which is open to the knowledge or view of all; generally seen, known or heard; activities carried on before the public, or something which is done in an open manner; without concealment. It is the antonym of private; secret; secluded or concealed. Imo,. at 199. The Court in Wolf v. U.S., 259 F.388 (1919) discussed the term "publicly" as follows: • 'Publicly' means in public, well known, open, notorious, common, or general, as opposed to private, secluded or secret. The clear inference — would seem to be that the statement was uttered in the presence of a number of persons. at 392. See also, Public Opinion v. Chambersburg Area School District, 654 A.2d 284 (1995). We conclude that in order for there to be a public disclosure within the prohibition of Section 10.1, it is necessary that the disclosure be made by the complainant in the presence of two or more other individuals. As to the wrongful use of act, we find no violation by Ms A for two reasons. First, based upon our analysis under Section 8(k) of Act 9 of 1989, we find that there is not clear and convincing proof that Ms. A disclosed the filing of the complaint against Mr. B. Second, the conversation between Ms. A and Mr. K was in a telephone conversation between only two individuals. It is clear from the record that what Ms. A said to Mr. • K was spoken only to him and not in the presence of two or more individuals. As a matter of law, there was not a public disclosure. Accordingly, based upon a lack of clear and convincing evidence as well as the impossibility of any public disclosure, Ms. A did not violate Section 10.1(a)(2) of the Ethics Law in her telephone conversation with Mr. K. IV. CONCLUSIONS OF LAW: 1. Ms. A, as a private citizen and resident of Township C, County D, is subject to the provisions of Act 9 of 1989. 2. Ms. A did not violate Section 8(k) of Act 9 of 1989 in that there is not clear and convincing proof to establish that Ms. A breached confidentiality as to the complaint she filed against Mr. B. 3. Ms. A did not violate Section 10.1(a)(2) of Act 9 of 1989 regarding a complaint she filed against Mr. B based upon a lack of clear and convincing proof and public disclosure. In Re: Ms. A ORDER NO. 1056 File Docket: ID# 96- 004 -C2 LD# 96- 004 -WUA Date Decided: 5/29/97 Date Mailed: 6/11/97 1. Ms. A, as a private citizen and resident of Township C, County D, did not violate Section 8(k) of Act 9 of 1989 in that there is not clear and convincing proof to establish that Ms. A breached confidentiality as to the complaint she filed against Mr. B. 2. Ms. A did not violate Section 10.1(a)(2) of Act 9 of 1989 regarding a complaint she filed against Mr. B based upon a lack of clear and convincing proof and public disclosure. BY THE COMMISSION, olO etaL.J DANEEN E. REESE, CHAIR