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HomeMy WebLinkAbout1834 Complainant APFIONE: 717--783-.16'10 TOLL FREE: 1-800-932-0936 In Re: Complainant A STATE ETHICS COMMISSION FINANCE BUILDING 613 NOR,rH STREET, ROOM 309 HARRISBURG, PA 17120-0400 File Docket: ID # 22-0028-C FACMILE: 717-787-0806 WEMTE: ov LD # 22-0028-C WUA (A) Date Decided: 4/9/24 Date Mailed: 4/12/24 Before: Michael A. Schwartz, Chair Rhonda Hill Wilson, Vice Chair David L. Reddecliff Emilia McKee Vassallo Thomas E, Leipold Tliis is a preliminary determination of the State Ethics Commission ("Corrunission") as to an alleged wrongful use of the Public Official and Employee Ethics Act ("Ethics Act," or "Act"), 65 Pa.C.S. § 1101 et M., by the above -referenced complainant.' Procedurally, the Investigative Division of the Commission received a complaint from an individual referred to herein as "Complainant A," alleging that an individual referred to herein as "the Subject" had violated the Ethics Act, The Investigative Division conducted a preliminary inquiry under case number [case number redacted] based upon the alleged violations of the Ethics Act by the Subject. Following the preliminary inquiry, a full investigation was initiated on [date redacted]. During the course of the investigation, the Subject sought a finding as, to wrongful use of the Ethics Act by Complainant A, alleging that the complaint was frivolous and/or without probable cause. Upon completion of its investigation, the Investigative Division issued and served upon the Subject a Findings Report identified as, an "Investigative Complaint." The Subject filed an Answer, which included an allegation that the individual who the Subject believed to be Complainant A publicly disclosed to others that he had filed the complaint against the Subject. At the request of the Subject, an evidentiary hearing was held with respect to the allegations against the Subject. Thereafter, on [date redacted], the Commission issued [Order redacted], in which the Commission found that the Subject did not violate the Ethics Act as to certain allegations against the Subject. The Commission further found that the Subject violated the Ethics Act as to other allegations against the Subject. 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 ' Commissioner Robert P. CarLISO recused himself from this matter and did not participate in the deliberations involving this case. In Re: Complainant A ID # 22-0028-C/LD # 22-0028-C WUA (A) Page 2 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. § 11 I0(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. § 1 110(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. L FINDINGS: 1. The Subject has served as a [Position] of the [Governing Body] of the [Political Subdivision] since [month, year]. 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 its Executive Director, initiated a full investigation on [date redacted]. 4. By correspondence dated [date redacted], addressed to the Chair and Vice Chair and the other Members of the Commission, 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 the complaint was frivolous and/or without probable cause. 5. On [date redacted], the Investigative Division issued and served upon the Subject a Findings Report, identified as an "Investigative Complaint," that set forth the Investigative Division's findings of fact relative to the allegations against the Subject. 6. On [date redacted], the Subject filed an Answer to the Investigative Complaint/Findings Report which included an allegation that the individual who the Subject believed to be In Re: Complainant A ID # 22-0028-C/LD # 22-0028-C WUA (A) Page 3 Complainant A publicly disclosed to others that he had filed the complaint against the Subject. 7. At the request of the Subject, an evidentiary hearing was held in [month and year redacted] with respect to the allegations against the Subject. 8. On [date redacted], the Commission issued [Order redacted], in which the Commission rendered its determination with respect to the allegations against the Subject. 9. 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. 10. The Investigative Division's wrongful use of Act inquiry indicated, inter alia, that: a. The wrongful use of Act inquiry incorporated the documents and reports obtained during the preliminary inquiry or investigation conducted in relation to the complaint filed against the Subject; b. The wrongful use of Act inquiry also included interviews of the Subject, Complainant A, the [Political Subdivision's] solicitors, current and former employees of the [Political Subdivision], and [Positions] of the [Governing Body] of the [Political Subdivision]; C. The complaint against the Subject was not frivolous given that the Investigative Division found sufficient merit to the complaint to open a preliminary inquiry, conduct a full investigation, and issue an Investigative Complaint/Findings Report alleging certain violations of the Ethics Act by the Subject; d. Complainant A had probable cause for filing the complaint as Complainant A could have had a reasonable belief that under the facts available to Complainant A, a violation of the Ethics Act had occurred with respect to the conduct of the Subject; The wrongful use of Act inquiry found no factual basis to support any allegation that the complaint was made for a purpose other than to report a violation of the Ethics Act; and f As for the Subject's allegation that the individual who the Subject believed to be Complainant A publicly disclosed to others that he had filed the complaint against the Subject, disclosure by a complainant of the fact that a complaint has been filed with the Commission is no longer an avenue for liability under the wrongful use of Act section of the Ethics Act. See, Stilp v. Contino, 613 F.3d 405 (3d Cir. Pa. 2010), on remand, 743 F. Supp. 2d 460 (M.D. Pa. 2010). II. DISCUSSION: In Re: Complainant A ID # 22-0028-C/hD # 22-0028-C WUA (A) Page 4 The Subject has served as a [Position] of the [Governing Body] of the [Political Subdivision] since [month, year]. 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, and the Investigative Division opened a preliminary inquiry. Following the preliminary inquiry, this Commission, through its Executive Director, initiated a full investigation. on [date redacted]. By correspondence dated [date redacted], addressed to the Chair and Vice Chair and the other Members of this Commission, 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 the complaint was frivolous and/or without probable cause. On [dated redacted], the Investigative Division issued and served upon the Subject a Findings Report, identified as an "Investigative Complaint," that set forth the Investigative Division's findings of fact relative to the allegations against the Subject. On [date redacted], the Subject filed an Answer to the Investigative Complaint/Findings Report which included an allegation that the individual who the Subject believed to be Complainant A publicly disclosed to others that he had filed the complaint against the Subject. At the request of the Subject, an evidentiary nearing was held in [month and year redacted] with respect to the allegations against the Subject. On [date redacted], we issued [Order redacted], in which we rendered our determination as to the allegations against the Subject. Notably, we found that the Subject violated the Ethics Act as to certain allegations but did not violate the Ethics Act as to the other allegations. Subsequent to the issuance of [Order redacted], the Investigative Division initiated an inquiry on [date redacted], in response to the Subject's request for an investigation into an alleged wrongful use of the Act. Sections I I I0(a)-(b) of the Ethics Act, pertaining to wrongful use of Act, provide as follows: § 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 (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 In Re: Com lainant A 1D # 22-00 8-C/LD # 22-0028-C WUA (A) Page 5 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. §§ I I10(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. Pursuant to Sections 1110(a)-(b) of the Ethics Act, a complainant who files a frivolous complaint (i.e., a complaint filed in a grossly negligent manner without basis in law or fact) or who files a complaint without probable cause and primarily for a purpose other than that of reporting a violation of the Ethics Act is subject to liability for wrongful use of the Ethics Act. As a result of federal court rulings, a complainant who publicly discloses the fact that a complaint has been filed with this Commission is not subject to liability for wrongful use of the Ethics Act. See, StilpV. Contino, 613 F.3d 405 (3d Cir. Pa. 2010), on remand, 743 F. Supp. 2d 460 (M.D. Pa. 2010). The question before this Commission is whether the elements of a wrongful use of Act are met in the instant matter. Regarding the allegations set forth in the complaint against the Subject, the Investigative Division found sufficient merit to the allegations to open a preliminary inquiry and then conduct a full investigation to determine whether the Subject had violated the Ethics Act. The Investigative Division subsequently issued an Investigative Complaint/Findings Report that set forth the Investigative Division's findings of fact, including its findings that the Subject had violated the Ethics Act by engaging in conduct related to that referenced in the complaint. Thereafter, the Investigative Division presented evidence at a hearing to support the alleged violations of the Ethics Act. Given that the allegations set forth in the complaint against the Subject ultimately led to the Investigative Division presenting evidence at a hearing to support a case for finding violations of the Ethics Act, it is clear that: (1) the complaint against the Subject was not frivolous (filed in a grossly negligent manner without basis in law or fact); and (2) regardless of the purpose of the In Re: ComiAginant A ID # 22-00 .8-C/LD # 22-0028-C VJUA (A) Page 6 complaint, the complaint was not without probable cause. The elements of a wrongful use of Act have not been met in this matter. III. CONCLUSIONS OF LAW: 1, As a [Position] of the [Governing Body] of the [Political Subdivision] since [month, year], an 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 seMc , 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 frivolous and/or without probable cause and made primarily for a purpose other than that of reporting a violation of the Ethics 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 allegations set forth in the complaint against the Subject ultimately led to the Investigative Division presenting evidence at a hearing to support a case for finding violations of the Ethics Act, it is clear that: (1) the complaint against the Subject was not frivolous (filed in a grossly negligent manner without basis in law or fact); and (2) regardless of the purpose of the complaint, the complaint was not without probable cause. 3. To the extent that the Subject requests a finding as to wrongful use of the Ethics Act based upon the Subject's allegation that the individual who the Subject believed to be Complainant A publicly disclosed to others that he had filed the complaint against the Subject, as a result of federal court iulings, a complainant who publicly discloses the fact that a complaint has been filed with this Commission is not subject to liability for wrongful use of the Ethics Act. In Re: Complainant A File Docket: ID # 22-0028-C LD # 22-0028-C WUA (A) Date Decided: 4/9/24 Date Mailed: 4/12I24 ORDER NO. 1834 1. The matter of the request by an individual referred to herein as "the Subject" for a finding as to wrongful use of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sue, having been brought before this Commission, following review, it is the preliminary determination of this Commission that there was no wrongful use of the Ethics Act with respect to: (a) the fling of the complaint against the Subject under case number [case number redacted]; or (b) the Subject's allegation that the individual who the Subject believed to be Complainant A publicly disclosed to others that he had filed the complaint against the Subject. 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, Michael A. Schwartz, -Chair