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HomeMy WebLinkAbout1810 Complainant APHONE: 717-783--16'10 'FOLL FIRES: 1-800-932-0936 In Re: Complainant A STAIE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 FIARRISBW'(�, [--,)A 17120-0400 FACSIMILE 717-787-080,6 WEBSITE: w-wmLeL hI(L,s.pa.UQv File Docket: ID # 22-002 LD # 22-002-WUA (A) X-ref, Order No. 1810 Date Decided: 6/28/22 Date Mailed: 7/6/22 Before: Mark R. Corrigan, Acting Chair Roger Nick Melanie DePalma Michael A. Schwartz Shelley Y. Simms Rhonda Hill Wilson Paul Parsells This is a preliminary determination of the State Ethics Commission ("Commission") as to wrongful use of the Public Official and Employee Ethics Act ("Ethics Act," or "Act"), 65 Pa,C3. § 1101 et sue, Procedurally, the Investigative Division of the Commission conducted a preliminary inquiry under case number [case number redacted] based upon alleged violation(s) of the Ethics Act by an individual referred to herein as the "Subject." Following the preliminary inquiry, a full investigation was initiated on [date redacted]. The Subject subsequently sought a finding as to wrongful use of the Ethics Act, alleging that: (1) the complaint was without probable cause and made primarily for a purpose other than that of reporting a violation of the Ethics Act; and (2) a person referred to herein as "Individual A" publicly disclosed or caused to be disclosed that a complaint against the Subject had been filed with the Commission. Thereafter, the Subject and the Investigative Division submitted a Stipulation of Findings and a Consent Agreement to the Commission for consideration. Based upon the Stipulated Findings and Consent Agreement, in [Order redacted], issued [date redacted], the Commission found, in pertinent part, that the Subject had committed certain violations of the Ethics Act. A wrongful use of Act inquiry was subsequently conducted by the Investigative Division in response to the Subject's allegations,, 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 actually In Re: Complainant A, ID # 22-002/LD # 22-002-WUA (A) Page 2 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. § I110(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 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 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 served [in various capacities as a public official]. 2. A complainant, referred to herein as "Complainant A," filed a complaint with this Commission against the Subject (case number [case number redacted]), alleging that the Subject had violated provisions of the Ethics Act. 3. Following a preliminary inquiry, the Commission, through the Executive Director, initiated a full investigation on [date redacted]. 4. By. correspondence dated [(We redacted], addressed .to the Executive Director of the Commission, counsel for the Subject requested an investigation pursuant to Section 1108(1) of the Ethics Act (pertaining to frivolous complaints and wrongful disclosure) and asserted that the Subject had reason to believe that: (1) the complaint was without probable cause and made primarily for a purpose other than that of reporting a violation of the Act; and (2) a person publicly disclosed or caused to be disclosed that a complaint against the Subject had been filed with the Commission. 5. On [date redacted], a Stipulation of Findings and a Consent Agreement were submitted by the Subject and the Investigative Division to the Commission for consideration. 6. Based upon the Stipulated Findings and Consent Agreement, in [Order redacted], issued [date redacted], the Commission found, in pertinent part, that the Subject had committed certain violations of the Act. 7. Subsequent to issuance of [Order redacted], the Investigative Division initiated a wrongful use of Act inquiry on [date redacted], in response to the Subject's request for an investigation pursuant to Section 1108(1) of the Ethics Act. In Re: Complainant A, ID # 22-002/LD # 22-002-VMA (A) Page 3 8. The Investigative Division's wrongful use of Act inquiry indicated, inter alia, that: a. The Subject alleged that: (1) IndividuaI A publicly stated that the Subject was the subject of an investigation by the Commission; and (2) the filing of the complaint against the Subject may have been politically motivated; b. The Subject declined to be interviewed by the Investigative Division or to provide any specific information in support of her allegations; C. Individual A was not interviewed by the Investigative Division during its investigation conducted in relation to case number [case number redacted] nor was Individual A provided with any information that an investigation was ongoing; d. Multiple [public officials] were interviewed during the Investigative Division's investigation conducted in relation to case number [case number redacted]; and e. An online search of media outlets confirmed that quotes were attributed to Individual A that the Subject was the subject of an investigation by the Commission. 9. Individual A did not file the complaint against the Subject. II. DISCUSSION: The Subject served [in various capacities as a public official]. Complainant A fled a complaint with this Commission against the Subject (case number [case number redacted]), alleging that the Subject had violated provisions of the Ethics Act, and the Investigative Division opened a preliminary inquiry. Following the preliminary inquiry, this Commission, through the Executive Director, initiated a full investigation on [date redacted]. By correspondence dated [date redacted], addressed to the Executive Director, counsel for the Subject requested an investigation pursuant to Section 1108(1) of the Ethics Act and asserted that the Subject had reason to believe that: (1) the complaint was without probable cause and made primarily for a purpose other than that of reporting a violation of the Act; and (2) a person publicly disclosed or caused to be disclosed that a complaint against the Subject had been filed with the Commission. On [date redacted], a Stipulation of Findings and a Consent Agreement were submitted by the Subject and the Investigative Division to this Commission for consideration. In [Order redacted], issued [date redacted], we approved the Consent Agreement and found, in pertinent part, that the Subject had committed certain violations of the Act. Subsequent to issuance of [Order redacted], the Investigative Division initiated a wrongful use of Act inquiry on [date redacted], in response to the Subject's request for an investigation pursuant to Section 1108(l) of the Ethics Act. The Investigative Division's wrongful use of Act inquiry indicated, inter alia, that: (1) the Subject alleged that Individual A publicly stated that the In Re: Complainant A, ID # 22-002ILD # 22-002-WUA (A) Page 4 Subject was the subject of an investigation by the Commission; (2) the Subject further alleged that the filing of the complaint against the Subject may have been politically motivated; (3) the Subject declined to be interviewed by the Investigative Division or to provide any specific information in support of her allegations; and (4) an online search of media outlets confirmed that quotes were attributed to Individual A that the Subject was the subject of an investigation by the Commission. Individual A did not file the complaint against the Subject. Sections I I I0(a)-(b) of the Ethics Act provide, in pertinent part, as follows: § 1 110. 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 (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) (emphasis added). The question before this Commission is whether the elements of a wrongful use of Act are met in the instant matter. Given that the Subject entered into a Consent Agreement with the Investigative Division pursuant to which this Commission found in [Order redacted] that the Subject committed certain violations of the Ethics Act, it is clear that regardless of the purpose of the complaint, the complaint was not without probable cause. Furthermore, given that the provisions regarding a wrongful use of the Act apply exclusively to complainants, there is no basis In Re: Complainant A, ID # 22-002/LD # 22-002-WUA (A) Page 5 to find that Individual A —who did not file the complaint against the Subject —wrongfully used the Act in any way. The elements of a wrongful use of Act have not been met in this matter. III. CONCLUSIONS OF LAW: As [various positions held], 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. With respect to the matter of the Subject's request for a finding as to wrongful use of the Ethics Act based upon the Subject's allegation that the complaint against the Subject was without probable cause and made primarily for a purpose other than that of reporting a violation of the Act, it is the preliminary determination of this Commission that there was no wrongful use of the Ethics Act with respect to the filing of the complaint against the Subject under case number [case number redacted]. a. Given that the Subject entered into a Consent Agreement with the Investigative Division pursuant to which this Commission found in [Order redacted] that the Subject committed certain violations of the Ethics Act, it is clear that regardless of the purpose of the complaint, the complaint was not without probable cause. 3. With respect to the matter of the Subject's request for a finding as to wrongful use of the Ethics Act based upon the Subject's allegation that the individual referred to herein as "Individual A" publicly disclosed or caused to be disclosed that a complaint against the Subject had been filed with the Commission, it is the preliminary determination of this Commission that there was no wrongful use of the Ethics Act by Individual A. a. Given that the provisions regarding a wrongful use of the Act apply exclusively to complainants, there is no basis to find that Individual A who did not file the complaint against the Subject —wrongfully used the Act in any way. In Re: Complainant A File Docket: ID # 22-002 LD # 22-002-WUA (A) Date Decided: 6I28/22 Date Mailed: 7I6I22 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 having been brought before this Commission, following review, it is the preliminary determination of this Commission that there was no wrongful use of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq., with respect to: (a) the filing of the complaint against the Subject under case number [case number redacted]; or (b) the Subject's allegation that the individual referred to herein as "Individual A," who did not file the complaint against the Subject, publicly disclosed or caused to be disclosed that a complaint against the Subject had been filed with the Commission. 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, Mark R. Corrigan, Acting Chair