Loading...
HomeMy WebLinkAbout1268 SaundersIn Re: James Saunders File Docket: X -ref.: Date Decided: Date Mailed: 02- 012 -C2 Order No. 1268 1/15/03 1/17/03 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Susan Mosites Bicket Donald M. McCurdy Michael Healey 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 et seq., 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 not filed and a hearing was waived. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The record is complete. The Consent Agreement was subsequently approved and the Stipulation of Findings appears as the Findings in this adjudication. This is the determination of the Commission. Effective December 15, 1998, Act 9 of 1989 was replaced by the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., which codifies Act 9 of 1989 and provides for the completion of pending matters under that Act. This adjudication of the State Ethics Commission is issued under Act 93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year, 65 Pa.C.S. §1109(e). Confidentiality does not preclude discussing this case with an attorney at law. Saunders 02- 012 -C2 Page 2 I. ALLEGATION: That James Saunders, a private citizen in his capacity as complaint to Case No. 01- 078-C2, violated the following provisions of the State Ethics Act (Act 93 of 1998) when he disclosed or caused to be disclosed the existence of a Commission investigation to case no. 01- 078 -C2. Section 1108. Investigations by commission. (k) Confidentiality. - -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 (9) such other exceptions as the commission, by regulation, may direct. 65 Pa.C.S. §1108(k). Section 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: (2) he publicly disclosed or caused to be disclosed that a complaint against a person had been filed with the commission. 65 Pa.C.S. §1110(a). II. FINDINGS: 1. On October 29, 2001, the Investigative Division of the State Ethics Commission received a signed sworn complaint alleging that Suzanne Borzak violated provisions of the State Ethics Act in her official capacity as secretary /treasurer and Code Enforcement Officer for West Penn Township, Schuylkill County. a. This complaint was notarized by Joy Pham, Notary, Allentown, Lehigh County Saunders 02- 012 -C2 Page 3 on October 22, 2001. b. The complaint was signed by James Saunders. 2. The complaint was filed on Form SEC -3 5/90 which contains instructions for filing and provisions of the law related to investigations. a. Included is information regarding the confidentiality provisions of the Ethics Act as stated in Section 8(k), Section 9 and Section 10. b. Any person filing a complaint with the State Ethics Commission should be aware of the following provisions of the Ethics Law. Section 8 (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 (9) such other exceptions as the commission, by regulation, may direct. Section 9 (e) Any person who violates the confidentiality provision of a commission proceeding pursuant to section 8, is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisonment for not more than one year, or be both fined and imprisoned. Any person who engages in retaliatory activity proscribed by section 1108(j) is guilty of a misdemeanor and, in addition to any other penalty provided by law, shall be fined not more than $1,000 or Saunders 02- 012 -C2 Page 4 PENALTY imprisonment for not more than one year, or be both fined and imprisoned. Any person who willfully affirms or swears falsely in regard to any material matter before a commission proceeding pursuant to section 8 is guilty of a felony and shall be fined no more than $5,000 or imprisoned for not more than five years, or both fined and imprisoned. Section 10 (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. (b) A person who signs a complaint alleging a violation of this act 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 act; 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. 3. On November 5, 2001, the Investigative Division of the State Ethics Commission commenced a preliminary inquiry into the sworn allegations made against Borzak by Saunders. a. During the preliminary inquiry records of West Penn Township were reviewed and interviews conducted. 4. During the preliminary inquiry, interviews were conducted by an ics Commission Special Investigator with James Saunders on November 30, 2001, and December 20, 2001. 5. Each individual interviewed, including Saunders, was provided with a State Ethics Commission confidentiality card. The confidentiality card includes verbatim Section 8(k) of the Ethics Act (See Finding No. 9) [sic] and the penalty for violating the confidentiality of a Commission proceeding. Any person who violates the confidentiality of a commission proceeding pursuant to the foregoing is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year, or both fined and imprisoned. You are not prohibited from consulting with your attorney regarding the subject Saunders 02- 012 -C2 Page 5 matter of the inquiry. 6. Saunders and Borzak have had disagreements over Borzak's interpretation of township codes as they relate to a trailer park development Saunders was attempting to get approved by the West Penn Township Board of Supervisors. a. Saunders' dispute with Borzak and the township was ongoing in January 2002. b. Saunders was hopeful of having Borzak removed as Code Enforcement Officer for his trailer park development. 7. On January 10, 2002, James Saunders telephoned Robert P. Caruso, Deputy Executive Director, State Ethics Commission, regarding the status of the Borzak investigation. a. Saunders wanted to know if he could publicly discuss the allegations against Borzak. 1. Saunders wanted to make the public aware that Borzak's conduct was being reviewed. b. Saunders claimed that he was receiving calls from residents of The Pines (his development) and members of the media requesting commentary on the Borzak situation. c. Saunders was advised that the filing of a complaint and information related to the complainant was confidential and that he was not p ermitted to discuss the filing of the complaint or any of the information related to the investigation. d. Saunders was further advised that the faced the possibility of violating the Ethics Act for any breach of the confidentiality provisions of the Act. e. Saunders was advised by Caruso that if he was contacted by the media to make no comment regarding the investigation and indicate that only the Ethics Commission could respond to any questions regarding the inquiry. 8. On January 11, 2002, Saunders held a press conference at his Pines Development which included the conduct of Suzanne Borzak, West Penn Township Code Enforcement Officer. a. Residents of the Pines Development and members of the local media attended this press conference. b. Saunders held this press conference one day after contacting the Ethics Commission regarding the confidentiality provision of the State Ethics Act. 9. At the onset of the press conference Saunders distributed a press release to those in attendance on Pines stationery containing information that Suzanne Borzak, Code Enforcement Officer of West Penn Township was being investigated by the State Ethics Commission. Saunders' press release read as follows: "Members of the press as well as residents in this development have been calling me to confirm reports that the code enforcement officer in West Penn Township is the subject of a new investigation by the State Ethics Commission in Harrisburg. The reports being discussed range from Mrs. Borzak's conduct relative to money received from the flood relief fund in the late 90's to her involvement in our mediation agreement Saunders 02- 012 -C2 Page 6 with supervisors which would have removed her as the zoning officer for the Pines. As you know, that agreement fell apart in August of last year. I have been told that I can not under any circumstances discuss any part of this probe. Instead, you are advised to direct all questions to the State Ethics Commission. They can be reached at the following 800 #. 1- 800 - 932 -0936. Thank you — Signed — Jim Saunders" 10. Prior to Saunders issuing the press release, neither the media nor the general public raised questions publicly regarding the Ethics Commission investigation of Borzak. 11. Joseph Plasko, a reporter for the Times News, Lehighton, PA attended the Saunders press conference and tape recorded the event. a. Plasko provided Borzak with a tape recording of the press conference as well as a copy of Saunders' press release. 12. The tape recording provided by Plasko to Borzak disclosed Saunders making the following statement: a. "Now I got to say something because I know I'm going to get questioned on this by the press, so I'm gonna, I have a written statement before I start all of this which 1 m going to hand out to you ... I'm going to read this out loud because it's very, very important that this be understood. 1 can't take any questions on this subject .:. Read the press release, new investigation by the State Ethics Commission in Harrisburg. At the number 1 have listed on this press release, the 1- 800 - 932 -0936. The only thing 1 was allowed to comment on by the people in Harrisburg, it's time on behalf of all the residents and the people that work for me that we get a code enforcement officer here in West Penn Township that's beyond reproach." 13. Plasko published an article in the Times News on January 12, 2002, which detailed Saunders' actions discussing Borzak being investigated by the Ethics Commission as follows: "Curiously, Saunders began his press event by handing out a release referring to "reports that the code enforcement officer in West Penn Township is the subject of a new investigation by the State Ethics Commission in Harrisburg. The reports being discussed range from Mrs. Borzak's conduct relative to money received from the flood relief fund in the late 90's to her involvement in our mediation agreement which would have removed her as the zoning officer for the Pines." 14. Saunders' press release and Joseph Plasko's subsequent article prompted a question being raised by a township resident at the West Penn Township Board of Supervisors' January 14, 2002, meeting. a. Minutes reflect Borzak's conduct was questioned by Herbert Woodring and commented on by Saunders. b. Herb Woodring is a member of West Penn Township's concerned citizens group. c. Woodring was not interviewed by investigators of the State Ethics Commission as part of the preliminary inquiry of Borzak. Saunders 02- 012 -C2 Page 7 d. Woodring learned of the investigation as a result of the Joseph Plasko article in the Times News. 15. Minutes from the West Penn Township Board of Supervisors' January 14, 2002, meeting include the following comments by Woodring and Saunders regarding the Ethics investigation under "concerns of citizens." a. Herb Woodrinq - ... questioned whether there is any information regarding an investigation by the Ethics Commission. Jim Saunders — stated he is aware of an investigation because he is not allowed to talk about it. b. There was no response by Borzak or any other township official to Woodring's question. 16. Saunders ceased publicly discussing the Borzak investigation after receiving notification from the State Ethics Commission on March 15, 2002, that he was being investigated for alleged violations of the confidentiality provision of the State Ethics Act. 17. Saunders disclosed his knowledge of an Ethics Commission investigation against Suzanne Borzak during his January 11, 2002, press conference and January 14, 2002, board of supervisors meeting. a. Saunders made this disclosure even though he was aware of the confidentiality provisions of the Ethics Act from the complaint forms he filed, and from information provided to him during interviews on November 30, 2001, and December 20, 2001. b. Saunders was also made aware of the confidentiality provision of the State Ethics Act during a telephone conversation with Deputy Executive Director Robert P. Caruso on January 10, 2002. 1. Saunders was specifically advised by Caruso that any reference to the investigation could be deemed a violation of the confidentiality provisions. c. Saunders ignored these warnings, issued the press release, and made reference to the investigation during a press conference and during a meeting of the West Penn Township Board of Supervisors. III. DISCUSSION: James Saunders (Saunders) is a resident and citizen of West Penn Township, County, Pennsylvania. As such, he is subject to the confidentiality and wrongful use of act provisions of the Public Official and Employee Ethics Act, ( "the Ethics Act "), Act 9 of 1989/Act 93 of 1998, Chapter 11. Section 1108(k) of the Ethics Act 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 1108(k) further provides for nine exceptions which are not relevant to this case. Section 1110, 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 Act violation; or if a person who filed a complaint Saunders 02- 012 -C2 Page 8 publicly disclosed or caused to be disclosed that a complaint against another person was filed with the Commission. On October 29, 2001, the Investigative Division received a complaint signed by Saunders and duly notarized, alleging that Suzanne Borzak (Borzak), as the Secretary/Treasurer and Code Enforcement Officer for West Penn Township, violated the Ethics Act. The complaint was on a standard SEC -3 form which delineated the confidentiality provisions and wrongful use of act provisions of the Ethics Act. Saunders and Borzak had disagreements over her interpretation of the township code as to a trailer park development for which Saunders was attempting to obtain approval from the West Penn Township Board of Supervisors. The Investigative Division commenced a preliminary inquiry as to Borzak on November 5, 2001. Anyone interviewed by a Commission investigator was advised of the confidentiality provisions of the Ethics Act and the penalties for violating confidentiality. On January 10, 2002, Saunders telephoned the Deputy Executive Director regarding the status of the Borzak case. Saunders asked if he could publicly discuss the allegations against Borzak due to calls he was receiving from residents and members of the media. Saunders was informed that the filing of the complaint and information were confidential; he was not permitted to discuss the filing of the complaint or any information relating to the investigation; and he was advised that there were penalties for violating Ethics Act confidentiality. Thus, Saunders was specifically informed that he could not make any comments regarding the investigation. Nevertheless, on the very next day, January 11, 2002, Saunders held a press conference concerning the conduct of Borzak as the Code Enforcement Officer. Various residents and members of the local media attended the conference where Saunders distributed a press release which is quoted in Fact Finding 9. Neither township residents nor the media had raised any questions concerning the Borzak investigation prior to Saunders' news conference. A reporter made a recording of Saunders' statement at the news conference where Saunders specifically referenced the Commission investigation. Thereafter, on January 12, 2002, the Times News published an article which detailed Saunders' actions regarding the investigation of Borzak by the Commission. See, Fact Finding 13. That article prompted questions by residents at the following meeting of the township board of supervisors regarding Borzak's conduct. Further, at a meeting of the township board of supervisors, Saunders made reference to the Borzak investigation during the citizen commentary period. Saunders finally ceased discussing the Borzak investigation in public after he received notification that he was being investigated by the Commission for alleged breaches of confidentiality. In summary, Saunders disclosed his knowledge of a Commission investigation against Borzak during his press conference on January 11, 2002, and at the meeting of the board of supervisors on January 14, 2002. At the board meeting, Saunders stated that he was aware that there was an investigation as to Borzak but he was not allowed to discuss it. Saunders made such disclosures even though he was aware of the confidentiality provisions of the Ethics Act regarding the complaint he filed against Borzak. Saunders was told of the confidentiality provisions during a telephone conversation with the Deputy Executive Director of this Commission on January 10, 2002. Despite such knowledge and warnings, Saunders nevertheless issued a press release and made references to the Borzak investigation during a press conference and during a meeting of the West Penn Township Board of Supervisors. The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein it is proposed to resolve the case by finding that: Saunders violated Section 1108(k) of the Ethics Act when he publicly disclosed information relating to a complaint /investigation against Suzanne Borzak; Saunders violated Section 1110(a)(2) of the Ethics Act when he, as the complainant, publicly disclosed that he filed a complaint with the Saunders 02- 012 -C2 Page 9 State Ethics Commission against Borzak; and that Saunders will make a payment in the amount of $500.00 within 30 days of the issuance of this Order through this Commission to the Commonwealth of Pennsylvania. In this case, it is stipulated that Saunders, the Complainant, publicly disclosed that a complaint was filed against Borzak. Section 1110(a)(2), as to confidentiality breach, prohibits the public disclosure by the Complainant that a complaint had been filed against a person. Since such conduct is within the proscription of Section 1110(a)(2), we find a violation of Wrongful Use of Act as to the public disclosure of the filing of the Complaint. Furthermore, Saunders on several occasions disclosed the investigation of Borzak by the Investigative Division. Hence, Saunders violated Section 1108(k) of Act 93 of 1998 through the disclosure of the investigation as to Borzak in the Times News, at the press conference and at the township board meeting. Therefore, Saunders violated Sections 1108(k) and 1110(a)(2) of Act 93 of 1998. See, Yakin, Order 999; Vulcano, Order 1162. Lastly, as noted above, the parties have filed a Stipulation of Findings and Consent Agreement which we believe to be the proper disposition for this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, Saunders is directed to make the payment of $500.00 to the Commonwealth of Pennsylvania within 30 days of the date of this Order. Compliance with the foregoing will result in the closing of this case with no further action. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. James Saunders is subject to the confidentiality and Wrongful Use of Act provisions of Act 93 of 1998. 2. Saunders violated Section 1108(k) of the Ethics Act when he publicly disclosed information relating to a complaint /investigation as to the Secretary/Treasurer and Code Enforcement Officer for West Penn Township, Schuylkill County. 3. Saunders violated Section 1110(a)(2) of the Ethics Act when he, as the Complainant, publicly disclosed that a complaint had been filed with the State Ethics Commission as to the Secretary/Treasurer and Code Enforcement Officer for West Penn Township, Schuylkill County. In Re: James Saunders File Docket: Date Decided: Date Mailed: BY THE COMMISSION, Louis W. Fryman, CHAIR 02- 012 -C2 1/15/03 1/17/03 ORDER NO. 1268 1. James Saunders violated Section 1108(k) of the Ethics Act when he publicly disclosed information relating to a complaint /investigation as to the Secretary/Treasurer and Code Enforcement Officer for West Penn Township, Schuylkill County. 2. Saunders violated Section 1110(a)(2) of the Ethics Act when he, as the Complainant, publicly disclosed that a complaint had been filed with the State Ethics Commission as to the Secretary/Treasurer and Code Enforcement Officer for West Penn Township, Schuylkill County. 3. As per the Consent Agreement of the parties, Saunders is directed to make the payment of $500.00 to the Commonwealth of Pennsylvania within 30 days of the date of this Order. 4. Compliance with the foregoing will result in the closing of this case with no further action. Noncompliance will result in the institution of an order enforcement action.