HomeMy WebLinkAbout1834 Complainant APFIONE: 717--783-.16'10
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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