HomeMy WebLinkAbout1254 Complainant AIn Re: Complainant A
File Docket: ID # 02- 045 -C2
LD # 02- 045- C2 -WUA (A &B)
X -ref: Order No. 1254
Date Decided: 9/4/02
Date Mailed: 9/25/02
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Daneen E. Reese
Frank M. Brown
Susan Mosites Bicket
Donald M. McCurdy
Michael Healey
This is a preliminary determination of the State Ethics Commission as to wrongful use
of the Public Official and Employee Ethics Act, Act 9 of 1989, P.L. 26, 65 P.S. § 401 et seq.,
as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which Acts are
hereinafter referred to as the "Ethics Act."
Procedurally, the Investigative Division of the State Ethics Commission conducted a
preliminary inquiry under case number 01- 076 -C2 based upon alleged violation(s) of the
Ethics Act by an individual referred to herein as the "Subject." Following the preliminary
inquiry, the case was closed, and the Investigative Division advised the Complainant and the
Subject that there was no basis to commence a full investigation. Thereafter, the Subject
sought a finding as to wrongful use of the Ethics Act by the Complainant, based upon a
frivolous complaint.
Investigative proceedings were conducted by the Investigative Division as to wrongful
use of act, 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.
§ 1110(c); 51 Pa. Code § 25.3(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 §§ 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.S. § 1110(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) dismissal on jurisdictional grounds. 51 Pa. Code §
25.4(b)(1). Thereafter, a hearing will be held at which the Subject will have the burden of
proving wrongful use of the act by clear and convincing evidence. 51 Pa. Code § 25.4(b)(2).
In Re: Complainant A Case 02- 045- C2 -WUA (A &B)
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This Commission will then make a final determination.
In Re: Complainant A Case 02- 045- C2 -WUA (A &B)
Page 3
I. FINDINGS:
1. At all times relevant to this matter, the Subject has served as a township manager.
2. The Complainant filed a sworn complaint with this Commission alleging that the
Subject used the authority of the aforesaid public position for a private pecuniary
benefit by directing the use of township employees and equipment for the performance
of errands of a personal nature.
3. The preliminary inquiry of the investigation as to the Subject determined that there was
evidence establishing that the conduct alleged in the Complaint did in fact occur, but
that the resulting private pecuniary benefit to the Subject was approximately $39.21.
4. The investigative proceedings as to the Subject were closed due to the de minimis
nature of the financial gain to the Subject.
5. The Investigative Division's preliminary inquiry as to the Subject together with the
investigative proceedings as to wrongful use of act have indicated that:
a. All of the factual allegations delineated in the complaint filed by the Complainant
were true.
b. The existence of the facts as stated in the complaint, as well as the potential for
a violation of the Ethics Act based upon value, would have given a reasonable
person a basis to believe that the Ethics Act had been violated.
c. Although the preliminary inquiry as to the Subject determined that the de
minimis amount involved eliminated the potential for a violation of the Ethics
Act, such may not have been known by the Complainant.
d. Both the Subject and the Subject's spouse have acknowledged that anyone
could perceive that they had received an improper financial gain as the result of
the events in question in the base case.
II. DISCUSSION:
At all times relevant to this matter, the Subject has served as a township manager, and
as such, the Subject has been a public official /public employee subject to the provisions of the
Ethics Act.
The Complainant filed a complaint with this Commission against the Subject (case
number 01- 076 -C2) alleging that the Subject used the authority of the aforesaid public position
for a private pecuniary benefit by directing the use of township employees and equipment for
the performance of errands of a personal nature.
Pursuant to Section 3(a)/1103a) of the Ethics Act quoted above, a public official /public
employee is prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
In Re: Complainant A Case 02- 045- C2 -WUA (A &B)
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The following terms pertaining to conflicts of interest are defined in the Ethics Act as
follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through his
holding public office or employment for the private pecuniary
benefit of himself, a member of his immediate family or a
business with which he or a member of his immediate family is
associated. The term does not include an action having a de
minimis economic impact or which affects to the same degree a
class consisting of the general public or a subclass consisting of
an industry, occupation or other group which includes the public
official or public employee, a member of his immediate family or a
business with which he or a member of his immediate family is
associated.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary to the
performance of duties and responsibilities unique to a particular
public office or position of public employment.
sister.
"Immediate family." A parent, spouse, child, brother or
65 Pa.C.S. § 1102.
It is generally a conflict of interest under the Ethics Act for a public official /public
employee to use government time, equipment, staff, or facilities for personal purposes. See,
e.q., Cagno, Order 1204; Dovidio, Order 1202; Johnston, Order 1200; Farley, Order 1096;
Lucchino, Order 1031; Zangrilli, Order 946; Brunton, Order 884; Rakowsky, Orders 943 and
744. However, if the private pecuniary benefit resulting from such conduct is de minimis
(insignificant), this Commission is constrained to find that there is no violation. See,
Schweinsberq, Order 900; Cuppels, Order 1237.
Factually, the de minimis value of the private pecuniary benefit received by the Subject
was the basis for the closing of the base case against the Subject. Although it appeared per
the Investigative Division's preliminary inquiry that there was evidence as to the Subject's use
of the authority of the aforesaid public position for a private pecuniary benefit by directing the
use of township employees and equipment for the performance of certain errands of a
personal nature, it also appeared that the resulting private pecuniary benefit was de minimis.
The base case having been closed, the Subject has now requested a determination as
to wrongful use of act by the Complainant. The elements of wrongful use of act are set forth in
Section 1110 of the Ethics Act:
§ 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; or
In Re: Complainant A Case 02- 045- C2 -WUA (A &B)
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(2) he publicly disclosed or caused to be disclosed that
a complaint against a person had been filed with the commission.
(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. §§ 1110(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.
The question before this Commission is whether the elements for a wrongful use of act
are met as to the filing of a complaint where there is evidence that the conduct complained of
did occur; such conduct is of a nature that ordinarily would constitute a violation of the Ethics
Act; but it is ultimately determined that the private pecuniary benefit received as the result of
such conduct is de minimis.
It is our preliminary determination that under the facts and circumstances presented in
this case, there has been no wrongful use of act by the Complainant regarding the filing of the
complaint against the Subject. Specifically, the Investigative Division's preliminary inquiry as
to the Subject together with the investigative proceedings as to wrongful use of act have
indicated that: (1) all of the factual allegations delineated in the complaint filed by the
Complainant were in fact true; (2) the existence of the facts as stated in the complaint, as well
as the potential for a violation of the Ethics Act based upon value, would have given a
reasonable person a basis to believe that the Ethics Act had been violated; (3) although the
preliminary inquiry determined that the de minimis amount involved eliminated the potential for
a violation of the Ethics Act, such may not have been known by the Complainant; and (4) both
the Subject and the Subject's spouse have acknowledged that anyone could perceive that
they had received an improper financial gain as the result of the events in question in the base
case. Under these facts and circumstances, we see no basis for concluding that the
complaint was frivolous or, for that matter, filed without probable cause and primarily for a
purpose other than that of reporting a violation of the Ethics Act.
III. CONCLUSIONS OF LAW:
1. At all times relevant to this matter, the Subject has served as a township manager, and
as such, the Subject has been a public official /public employee subject to the
provisions of the Ethics Act.
2. Under the facts and circumstances presented in this matter, there is no basis for
concluding that the complaint filed against the Subject (case number 01- 076 -C2) was
In Re: Complainant A Case 02- 045- C2 -WUA (A &B)
Page 6
frivolous or filed without probable cause and primarily for a purpose other than that of
reporting a violation of the Ethics Act.
3. It is the preliminary determination of this Commission that the Complainant did not
wrongfully use the Ethics Act as to the filing of the complaint against the Subject under
case number 01- 076 -C2.
In Re: Complainant A
File Docket: ID # 02- 045 -C2
LD # 02- 045- C2 -WUA (A &B)
Date Decided: 9/4/02
Date Mailed: 9/25/02
ORDER NO. 1254
1. It is the preliminary determination of this Commission that Complainant A did not
wrongfully use the Ethics Act as to the filing of the complaint against the Subject under
case number 01- 076 -C2.
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 act and will be released as a public document.
BY THE COMMISSION,
Louis W. Fryman, Chair