HomeMy WebLinkAbout1347 Complainant AIn Re: Complainant A File Docket:
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 03 -073 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(s)
(hereinafter 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, alleging that the complaint(s) (hereinafter the complaint ") was
frivolous and made without probable cause and was publicly disclosed or caused to be
disclosed by the Complainant.
An investigative review was conducted 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
rounds. 51 Pa. Code § 25.4(b)(1). Thereafter, a hearing may be held at which the
ubject 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
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
ID # 04 -035
LD # 04- 035 -WUA (A &B)
Order No. 1347
9/20/04
10/1/04
In Re: Complainant A, Case 04- 035 -WUA (A &B)
Page 2
determination.
FINDINGS:
1. During the time period relevant to this matter, the Subject has served as a township
supervisor and in various other township capacities, and as such, the Subject has
been a public official /public employee subject to the provisions of the Ethics Act.
a. The Subject has served as a township supervisor since 1998.
b. In addition to serving as a township supervisor, the Subject has simultaneously
served in other positions within the township, including but not limited to the
positions of permit officer and alternate sewage enforcement officer.
2. The Complainant filed a sworn complaint with this Commission alleging that the
Subject had a conflict of interest based upon service in multiple positions.
a. The Subject's father's company has at times applied for sewage permits from
the township.
b. It was the Complainant's belief that the Subject's service in such positions at
a time when the Subject's father's company was doing business within the
township, and for which the Subject would be responsible for taking certain
actions, constituted a conflict of interest.
3. The following facts are significant with respect to the filing of the complaint.
a. The Complainant requested but was denied access to public records of the
township pertaining to the subject matter of the complaint.
b. At the time the complaint was filed, the Complainant possessed documentation
indicating that the Subject may have destroyed township documents relevant
to the alleged conflict of interest.
c. There is some indication that prior to filing the complaint, the Complainant
may have recited the above information to a staff member of this
Commission and been informed that such information would be sufficient to
warrant the filing of a complaint.
4. The preliminary inquiry as to the Subject determined that the township records
pertaining to sewage permits issued to the Subject's father's company did not
include any permits issued by the Subject.
a. The township sewage enforcement officer provided information indicating
that the Subject, while acting as alternate sewage enforcement officer, never
issued sewage permits.
b. The township sewage enforcement officer issued permits to the Subject's
father's company, all of which predated the Subject's appointment as
alternate sewage enforcement officer.
5. The investigative proceedings as to the Subject were closed based upon the results
of the preliminary inquiry.
6. The Investigative Division's preliminary inquiry as to the Subject together with the
investigative proceedings as to wrongful use of act have indicated that:
In Re: Complainant A, Case 04- 035 -WUA (A &B)
Page 3
a. No evidence has been obtained to support the contention that the Complainant
publicly disclosed or caused to be disclosed the fact that an Ethics Commission
proceeding was pending.
(1) The Subject and his father, in the presence of their Counsel, refused
to provide any information to Commission investigators regarding the
public disclosure issue, other than to state that they heard comments
from several individuals —whom they refused to identify - -that the
father's company was under investigation.
(2) The Investigative Division did not find any news articles or public
reports to indicate any public disclosure of the proceedings against
the Subject.
b. The Complainant filed the complaint based upon a reasonable belief that
there had been a violation of the Ethics Act by the Subject.
c. The Investigative Division found no evidence that the Complainant had any
motivation in filing the complaint other than that of reporting a violation of the
Ethics Act.
II. DISCUSSION:
During the time period relevant to this matter, the Subject has served as a township
supervisor and in various other township capacities, and as such, the Subject has been a
public official /public employee subject to the provisions of the Ethics Act.
Pursuant to Section 3(a)/1103(a) of the Ethics Act, 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).
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.
In Re: Complainant A, Case 04- 035 -WUA (A &B)
Page 4
"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.
"Immediate family." A parent, spouse, child, brother
or sister.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company, joint
stock company, receivership, trust or any legal entity
organized for profit.
"Business with which he is associated." Any
business in which the person or a member of the person's
immediate family is a director, officer, owner, employee or has
a financial interest.
65 Pa. C. S. § 1102.
It is generally a conflict of interest under the Ethics Act for a public official /public
employee to use the authority of his public position in a matter financially impacting
himself, a member of his immediate family, or a business with which he or a member of his
immediate family is associated. See, e.q., Gallen, Order 1198.
Factually, in addition to serving as a township supervisor, the Subject has
simultaneously served in other township positions including but not limited to the positions
of permit officer and alternate sewage enforcement officer. The Subject's father's company
has at times applied for sewage permits from the township.
The Complainant filed a complaint with this Commission against the Subject (case
number 03 -073) based upon the belief that the Subject's service in such multiple positions
at a time when the Subject's father's company was doing business within the township, and
for which the Subject would be responsible for taking certain actions, constituted a conflict
of interest.
The base case having been closed, the Subject has requested a determination as to
wrongful use of act by the Complainant.
The investigative proceedings as to wrongful use of act have indicated that the
Complainant filed the complaint based upon a reasonable belief that there had been a
violation of the Ethics Act by the Subject. It is significant that the Complainant requested
but was denied access to public records of the township pertaining to the subject matter of
the complaint. Additionally, at the time the complaint was filed, the Complainant
possessed documentation indicating that the Subject may have destroyed relevant
township documents. There is also some indication that prior to filing the complaint, the
Complainant may have recited information to a staff member of this Commission and been
informed that such information would be sufficient to warrant the filing of a complaint. The
Investigative Division has found no evidence that the Complainant had any motivation in
filing the complaint other than that of reporting a violation of the Ethics Act.
No evidence has been obtained that would support the Subject's claim that the
Complainant publicly disclosed or caused to be disclosed the fact that an Ethics
Commission proceeding was pending, and the Subject has inexplicably refused to
cooperate with Commission investigators in that regard.
The elements of wrongful use of act are set forth in Section 1110 of the Ethics Act:
In Re: Complainant A, Case 04- 035 -WUA (A &B)
Page 5
§ 1110. Wrongful use of chapter
(a) Liability. — 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).
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 in the instant matter. We may only find a wrongful use of act if we determine
that: (1) the complaint was frivolous or without probable cause and made primarily for a
purpose other than that of reporting a violation of the Ethics Act; or (2) the Complainant
publicly disclosed or caused to be disclosed the fact that a complaint against the Subject
had been filed with this Commission.
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. First, based upon Findings 1 -3 and 6 b -c above,
there is no basis for concluding that the complaint was frivolous or without probable cause
and made primarily for a purpose other than that of reporting a violation of the Ethics Act.
Second, no evidence has been obtained to support the contention that the Complainant
publicly disclosed or caused to be disclosed the fact that an Ethics Commission
proceeding was pending.
The essential elements for a wrongful use of act have not been met in this matter.
III. CONCLUSIONS OF LAW:
In Re: Complainant A, Case 04- 035 -WUA (A &B)
Page 6
1. During the time period relevant to this matter, the Subject has served as a township
supervisor and in various other township capacities, 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 03 -073) was
frivolous or without probable cause and made primarily for a purpose other than
that of reporting a violation of the Ethics Act.
3. Under the facts and circumstances presented in this matter, there is no basis for
concluding that that the Complainant publicly disclosed or caused to be disclosed
the fact that an Ethics Commission proceeding was pending.
4. 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 03 -073.
In Re: Complainant A
File Docket: ID # 04 -035
LD # 04- 035 -WUA (A &B)
Date Decided: 9/20/04
Date Mailed: 10/1/04
ORDER NO. 1347
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 03 -073.
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