HomeMy WebLinkAbout1393 StewartIn Re: James T. Stewart
File Docket:
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
Nicholas A. Colafella
05- 017 -WUA (A &B)
Order No. 1393
2/23/06
3/13/06
The Investigative Division of the State Ethics Commission conducted an
investigation regarding a possible wrongful use of act and breach of confidentiality under
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., by the above -named
"Complainant." Written notice of the specific allegations was served at the commencement
of the investigation. Upon completion of the investigation, the Investigative Division issued
and served upon Complainant a Findings Report identified as an "Investigative Complaint,"
which constituted the Investigation Division's Complaint against the Complainant. An
Answer was not filed and a hearing was deemed waived. The record is complete. This is
the determination of the Commission.
The above -named Complainant, who filed the original Complaint with the
Commission, or the "Subject," the person against whom the original Complaint was filed,
may appeal to this Commission the portion of this determination pertaining to wrongful use
of the Ethics Act, 65 Pa.C.S. § 1110. Any such appeal must be received at the
Commission within thirty days of the date of mailing of this determination. A Complainant
or Subject who files such an appeal shall be directed and required to show cause why the
Commission's determination as to wrongful use of the Ethics Act should not become final.
51 Pa. Code § 25.4.
The files in this case will remain confidential in accordance with Section 1108 of the
Ethics Act, 65 Pa.C.S. § 1108. 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.
If the final determination of this Commission is that the Complainant has wrongfully
used the Ethics Act, then pursuant to Section 1110(c) of the Ethics Act, 65 Pa.C.S. §
1110(c), this Commission shall provide the name and address of the Complainant to the
Subject, together with a copy of the final determination of this Commission.
Stewart, 05- 017 -WUA (A &B)
Page 2
I. ALLEGATIONS:
That James Stewart, a private citizen violated the following provisions of the State
Ethics Act (Act 93 of 1998) when he filed a complaint with the Investigative Division of the
State Ethics Commission regarding the conduct of Jacqueline Crahalla, State
Representative for the 150 Legislative District and subsequently disclosed or caused to
be disclosed the existence of that inquiry and when the complaint was filed for reasons
other than reporting a violation of the Ethics Act.
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);
for the purpose of seeking advice of legal
counsel;
(3)
(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).
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Page 3
Section 1109. Penalties
(e) Other violations of chapter. —Any person who
violates the confidentiality of a commission proceeding
pursuant to section 1108 (relating to investigations by
commission), commits a misdemeanor and shall, upon
conviction, be sentenced to pay a fine of not more than $1,000
or to imprisonment for not more than one year, or both. Any
person who engages in retaliatory activity proscribed by
section 1108(j) commits a misdemeanor and, in addition to any
other penalty provided by law, shall, upon conviction, be
sentenced to pay a fine of not more than $1,000 or to
imprisonment for not more than one year, or both. Any person
who willfully affirms or swears falsely in regard to any material
matter before a commission proceeding pursuant to section
1108 commits a felony and shall, upon conviction, be
sentenced to pay a fine of not more than $5,000 or to
imprisonment for not more than five years, or both.
65 Pa.C.S. § 1109(e).
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:
(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.
65 Pa.C.S. § 1110(a).
II. FINDINGS:
1. The Investigative Division of the State Ethics Commission received a signed, sworn
complaint alleging that James Stewart violated provisions of the State Ethics Act
(Act 93 of 1998).
2. Upon review of the complaint the Investigative Division initiated a preliminary
inquiry on May 23, 2005.
3. The preliminary inquiry was completed within sixty days.
4. On July 21, 2005, a letter was forwarded to James Stewart, by the Investigative
Division of the State Ethics Commission informing him that a complaint against him
was received by the Investigative Division and that a full investigation was being
commenced.
a. Said letter was forwarded by certified mail, no. 7004 0750 0002 8074 6622.
b. The domestic return receipt bore the signature of J. Stewart, with a delivery
Stewart, 05- 017 -WUA (A &B)
Page 4
date of July 25, 2005.
5. Periodic notice letters were forwarded to James Stewart in accordance with the
provisions of the Ethics Law advising him of the general status of the investigation.
6. The Investigative Complaint was mailed to the Respondent on January 12, 2006.
7 James Stewart was employed by Jacqueline Crahalla, State Representative for the
150 Legislative District from approximately January 2003 until January 2005.
a. Stewart was assigned to Crahalla's District Office in Collegeville, PA.
b. Stewart was terminated from his position by Representative Crahalla in
January 2005.
8. Stewart's daily work assignments were provided to him directly from Representative
Crahalla.
a. Stewart had his own office area situated in the back portion of
Representative Crahalla's district office.
b. Stewart's office was not in a public area of the district office.
c. Stewart's office was not in plain view of other district office staff.
9. Stewart actively assisted Crahalla with campaign and fundraising activities
throughout his term of employment from January 2003 to the November 2004
General Election including four (4) fundraisers held each year during 2003 and
2004.
10. The House Republican Campaign Committee serves as a fundraiser for Republican
candidates.
a. The committee is under the control of Speaker of the House of
Representatives John Perzel.
b. The committee is funded through campaign contributions and the sale of
merchandise.
c. The committee will fund up to one -half of any employee's salary who decides
to work on the campaign of a Republican House member.
11. From September 28, 2004, through October 26, 2004, one -half of Stewart's salary
as a Legislative Assistant for Representative Crahalla was paid for by the House
Republican Campaign Committee.
a. This enabled Stewart to participate in campaign related activities during
normal business hours of Crahalla's district office in the weeks leading up to
the November general election.
b. The House Republican Campaign Committee regularly paid for portions of
House Members' staff who assisted with campaigns for reelection.
12. Prior to January 2005, Crahalla determined that irregularities were occurring with
campaign funds.
a. Crahalla was made aware that cash collected was not deposited to the
Stewart, 05- 017 -WUA (A &B)
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campaign account.
b. Crahalla terminated Stewart's employment on or about January 3, 2005.
13. On May 2, 2005, at 11:49 a.m. the State Ethics Commission received a signed
sworn complain [sic] alleging that Representative Crahalla violated provisions of the
Ethics Act. The complaint stated as follows:
As a legislative assistant and subsequently Chief of Staff to State
Representative Jacqueline R. Crahalla I was routinely required to
perform political and campaign - related working [sic] the District Office
located at 3938 Ridge Pike, Collegeville, PA 19426. Activities
included phone calls, e- mails, faxing, fundraising, laser and color
printing during the period 2003 -2004. Additionally, legislative
assistant Donna Sanna also performed campaign - related activities
during normal business hours under direct orders from Rep. Crahalla.
Fundraising activities included database management of invitation
lists, producing event tickets and invitations, making up gift baskets
for event. In 2003, there were four fundraisers and same in 2004.
Campaign materials were stored in the office and staff time and state
equipment were routinely used for direct political purposes. I have
copies of e- mails, faxes, and printed material produced in the District
Office to substantiate all claims."
a. This complaint was notarized on April 28, 2005, by Andrew K. Hoff,
Royersford Boro [sic], Montgomery County.
b. The complaint contained the signature of James Stewart.
14. Andrew K. Hoff notarized the complaint against Crahalla during Hoff's normal
business hours of 8:30 a.m. to 4:30 p.m. on April 28, 2005.
15. The complaint was filed on a State Ethics Commission Complaint form SEC -3, 5/90.
a. The form is marked with a "W" confirming that it had been downloaded from
the Commission's website.
b. Complaint forms downloaded from the Commission's website automatically
include the instructions for filing the complaint as well as the specific
provision of the Ethics Act noted in Finding 16 below.
16. The complaint form contains instructions listed on the reverse side of the form.
a. Also listed on the reverse of the form under title of IMPORTANT are
Sections 8, 9, and 10 of the Ethics Act relating to confidentiality and the filing
of frivolous complaints.
b. Section 8(k) of the Ethics Act provides as follows:
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 the subsection
when the matters pertain to any of the following:
Stewart, 05- 017 -WUA (A &B)
Page 6
(1) final orders of the commission as provided in section
8[sic](h);
(2) hearings conducted in public pursuant to section
8[sic](g);
(3) for the purpose of seeking advice of legal counsel;
(4) [sic] 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 persona [sic] is
the subject of; or
(9) such other exceptions as the commission, by
regulation, may direct."
c. Section 9(e) of the Ethics Act:
Any person who violates the confidentiality of the [sic]
commission proceeding pursuant to section 8, is guilty of a
misdemeanor and shall be fined not more than $1,000 or
imprisoned for not more than one year, or be both fined and
imprisoned. Any person who engages [sic] retaliatory activity
proscribed by section 8(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 imprisoned 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 [sic] more than
$5,000 or imprisoned for not more than five years, or be both
fined and imprisoned."
d. Section 10 [sic] (a) and (b) of the Ethics Act provides as follows:
"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 probably [sic] 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.
A person who signs a complaint alleging a violation of this act
has probably [sic] cause for doing so if he reasonably believes
in the existence of the facts upon which the claim is based and
either:
Stewart, 05- 017 -WUA (A &B)
Page 7
(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."
17. On April 28, 2005, at 6:55 p.m. Stewart distributed a press release announcing that
he filed a complaint against Jacqueline Crahalla with the State Ethics Commission.
18. The press release distributed by Stewart in part contained the following statements:
a. "I have filed complaints to the State Ethics Commission and Judicial Conduct
Board for gross irregularities... legislative staffers are routinely required, as
a condition of employment to slave in campaign trenches free -of- charge to
retain their jobs."
b. The press release was distributed to the Montgomery County Times and
Associated Press.
19. Stewart's April 28, 2005, press release declaring that he filed a compliant [sic] with
the State Ethics Commission occurred hours after the complaint form was notarized
by Andrew Hoff.
a. The press release was issued to a Steve Saviello who operates a political
website.
b. Saviello e- mailed to [sic] release to another individual.
20. In addition to Stewart's press release he provided copies of the complaint that he
filed with the State Ethics Commission to the Montgomery County Times Herald and
Associated Press.
21. Stewart's press release and issuance of the complaint to the media resulted in a
series of news articles relating to the complaint appearing in a number of
newspapers which in part contained the following:
a. May 6, 2005
Montgomery County Times Herald: "Stewart said he filed a complaint this
week with the State Ethics Commission against Rep. Crahalla concerning
her alleged unethical and illegal use of legislative staff and office equipment
during her re- election campaign last year."
In a copy of the ethics commission complaint that he provided The Times
Herald, Stewart stated he was "routinely required to perform political and
campaign - related work" in the district office during normal business hours as
was legislative assistant Donna Sanna. Campaign materials were stored in
the office, the complaint said. Also, state equipment such as computers and
fax machines were used in connection with Rep. Crahalla's re- election
campaign, according to the complaint."
b. May 6, 2005
Pennlive.com: Mark Scolforo, Associated Press, Harrisburg, PA
"A state legislator used her state -paid staff and state equipment to campaign
during work hours and her husband, a district judge, violated judicial conduct
rules by handling her campaign donations a former aide alleges. James T.
Stewart who worked for Rep. Jacqueline R. Crahalla from 2003 until
Stewart, 05- 017 -WUA (A &B)
Page 8
January, made the allegations in complaints filed last week with the State
Ethics Commission and Judicial Conduct Board... Stewart's ethics complaint
said he was routinely required to perform campaign work at Crahalla's
Collegeville district office , a violation for which the State Ethics Commission
twice last year ordered other state representative [sic] to pay restitution. His
ethics complaint also claims legislative aide Donna Sanna campaigned
during normal business hours at Jacqueline Crahalla's direction"
c. May 8, 2005
Sunday Patriot News: Mark Scolforo, Associated Press, Harrisburg, PA.
Summary of May 6, 2005, AP article:
"James T. Stewart who worked for Rep. Jacqueline R. Crahalla from 2003
until January, made the allegations in complaints filed last week with the
State Ethics Commission and Judicial Conduct Board... Stewart's Ethics
complaint said he was routinely required to perform campaign work at
Crahalla's Collegeville district office, a violation for which the State Ethics
Commission twice last year ordered other state representatives to pay
restitution. His ethics complaint also claims legislative aide Donna Sanna
campaigned during normal business hours at Jacqueline Crahalla's
direction."
1. Stewarts [sic] announcement that he had filed a complaint against
Crahalla with the State Ethics Commission also appeared in the
Philadelphia Inquirer on May 7, 2005, the Pennsylvania Law Weekly
on May 16, 2005, the Washington Observer Reporter on May 7,
2005, and the Pottstown Mercury on May 7, 2005.
22. Stewart (JS) admitted to an investigator from the State Ethics Commission during a
taped statement taken on July 6, 2005, that he disclosed information relating to the
Crahalla complaint consistent with information contained in his April 28, 2005, press
release and subsequent news articles. Stewart stated, in part, to the SEC
investigator as follows:
JS: James Stewart
DB: Ethics Commission Investigator
JS: I don't feel I broke any confidentiality informing the press of what I've
alleged okay before I have any response from a state agency
because these are routinely rejected where people never even hear
of em. That's been my experience over twenty -five years in the
newspaper I received many of em. The press asked to verify that I
had in fact filed a complaint okay and I believe the complaint in itself
is a public record okay and that's what I provided. They challenge my
voracity [sic] because Jackie had told them he would never file. He
would never do anything to hurt the Republican Party. And I said yes
I have filed, I haven't heard from em but I have filed an Ethics
Complaint.
DB: And just so we are clear
JS: And it was only one newspaper as I recall
DB: Okay and which newspaper was it?
JS: I, I believe it was the Times Herald and it might have been I'd have to
go back through my notes, Dan, it might have been (inaudible) before
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Page 9
the Associated Press in Harrisburg.
DB: And that, what did that entail, just giving them a copy of the complaint
then?
JS: Yeah, a coversheet exactly what you have right there.
DB: Okay.
JS: The coversheet and the statement. Okay and not, no further I said
hey I cannot discuss other than the generalities of the complaint I am
not gonna discuss a blow by blow. That is up to the State Ethics and
I believe that process they're gonna be fair about this
DB: Okay. And that happened then after you mailed that form to us
though.
JS: Yeah, it would have been right after.
23. James Stewart publicly disclosed and caused to be disclosed the fact that he filed a
complaint against Jacqueline Crahalla with the State Ethics Commission.
24. Stewart filed a complaint with the Ethics Commission three months after his
employment was terminated by Representative Crahalla.
a. Stewart was terminated by Crahalla following reports that Stewart allegedly
misappropriated Crahalla's campaign funds.
1. Stewart was aware in early January 2005 that investigators for the
Montgomery County District Attorney were reviewing allegations of
missing funds from Crahalla accounts.
b. Stewart was eventually charged criminally by the Montomery County District
Attorney for misappropriating Crahalla campaign funds by writing checks
throughout 2004 totaling $15,000 to the Eagle Agency, a company Stewart
controlled.
1. Stewart was charged on 6/16/05 with Theft, Theft by Deception,
Receiving Stolen Property, Forgery, Tampering with Records and
Securing Execution of Documents by Deceit.
III. DISCUSSION:
James T. Stewart (hereinafter "Stewart ") is a private citizen who filed a complaint
with this Commission against Jacqueline Crahalla ( "Crahalla "), State Representative for
the 150 Legislative District. As a Complainant, Stewart is subject to the confidentiality
and wrongful use of act provisions of the Ethics Act.
Section 1108(k) of the Ethics Act provides in part that no person shall disclose or
acknowledge to any other person any information relating to a complaint, preliminary
inquiry, investigation, hearing or reconsideration petition which is before this Commission.
Section 1108(k) of the Ethics Act, 65 Pa.C.S. § 1108(k) and Section 21.6 of this
Commission's Regulations, 51 Pa. Code § 21.6, further provide for certain exceptions to
the confidentiality requirements, which exceptions are not relevant to this case.
Section 1110 of the Ethics Act, the wrongful use of act provision, provides in part
that a Wrongful Use of Act occurs: (1) if a complaint was frivolous, that is, filed in a
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Page 10
grossly negligent manner without basis in law or fact; (2) if a complaint was filed without
probable cause and made primarily for a purpose other than that of reporting an Ethics Act
violation; or (3) if a person who filed a complaint publicly disclosed or caused to be
disclosed that a complaint against another person was filed with this Commission.
The issues before us are whether Stewart violated Section 1108(k), Section
1110(a)(1), or Section 1110(a)(2) of the Ethics Act as to the allegation that he filed a
complaint with the Investigative Division of the State Ethics Commission regarding the
conduct of Crahalla, and subsequently disclosed or caused to be disclosed the existence
of that inquiry and when the complaint was filed for reasons other than reporting a violation
of the Ethics Act.
Having noted the issues and applicable law, we shall now summarize the facts
pertaining to this case. Given Stewart's failure to file an Answer to the Investigative
Complaint, the facts as averred by the Investigative Complaint are deemed admitted by
Stewart. 65 Pa. C. S. § 1108(e); 51 Pa. Code § 21.5(k).
Factually, Stewart was employed as a Legislative Assistant for Crahalla from
approximately January 2003 until January 2005. Stewart actively assisted Crahalla with
campaign and fundraising activities throughout his term of employment from January 2003
to the November 2004 General Election. From September 28, 2004, through October 26,
2004, one -half of Stewart's salary as a Legislative Assistant for Crahalla was paid for by
the House Republican Campaign Committee. Per the Findings, deemed admitted by
Stewart, this enabled Stewart to participate in campaign related activities during normal
business hours of Crahalla's district office in the weeks leading up to the November
general election.
Crahalla terminated Stewart's employment on or about January 3, 2005, after
Crahalla became aware of irregularities as to her campaign funds.
Stewart was aware in early January 2005 that investigators for the Montgomery
County District Attorney were reviewing allegations of missing funds from Crahalla
accounts. Stewart was eventually charged criminally by the Montgomery County District
Attorney for misappropriating Crahalla campaign funds. Stewart was charged on June 16,
2005, with Theft, Theft by Deception, Receiving Stolen Property, Forgery, Tampering with
Records and Securing Execution of Documents by Deceit.
On April 28, 2005, Stewart placed in the mail to this Commission a complaint
against Crahalla, alleging that Crahalla violated the Ethics Act. The basis for the
complaint was Crahalla's alleged use of staff (Stewart and another legislative assistant)
and district office facilities for campaign purposes. (See, Finding 13). Later that same
day, at 6:55 p.m., Stewart distributed a press release announcing that he had filed a
complaint against Crahalla with the State Ethics Commission. The press release was
distributed to the Montgomery County Times Herald and Associated Press. The press
release was issued to an individual named Steve Saviello who operates a political website.
Saviello e- mailed the release to another individual.
Stewart also provided to the Montgomery County Times Herald and Associated
Press copies of the complaint against Crahalla that he had mailed to this Commission.
Stewart's press release and issuance of the complaint to the media resulted in a series of
news articles relating to the complaint appearing in a number of newspapers, as detailed in
Finding 21.
This Commission received Stewart's complaint against Crahalla on May 2, 2005.
The complaint alleged that Crahalla had violated provisions of the Ethics Act as detailed in
Finding 13.
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Page 11
During a taped statement taken on July 6, 2005, Stewart admitted to an investigator
from this Commission that he disclosed information relating to the Crahalla complaint
consistent with information contained in his April 28, 2005, press release and subsequent
news articles. Stewart acknowledged that he provided to the press copies of the complaint
that he had filed with this Commission. Stewart confirmed that this occurred after he
mailed the complaint form to this Commission.
Having summarized the facts as deemed admitted by Stewart, we must now
determine whether the actions of Stewart violated Sections 1108(k), 1110(a)(1) or
1110(a)(2) of the Ethics Act. Based upon our review of the record, we find that there is
clear and convincing proof to support certain violations of the Ethics Act under the
allegations.
Clear and convincing evidence is "testimony that is so `clear, direct, weighty, and
convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of
the truth of the precise facts in issue." In Re: Charles E.D.M., 550 Pa. 595, 601, 708 A.2d
88, 91 (1998) (Citation omitted).
We shall first consider whether a violation of Section 1108(k) of the Ethics Act
occurred in this case. As noted above, Section 1108(k) of the Ethics Act provides in part
that no person shall disclose or acknowledge to any other person any information relating
to a complaint, preliminary inquiry, investigation, hearing or reconsideration petition which
is before this Commission. Factually, Stewart disclosed and acknowledged to other
persons, including Saviello and persons at the Montgomery County Times Herald and
Associated Press, information relating to the complaint against Crahalla that Stewart had
forwarded to this Commission. That information included a press release announcing that
Stewart had filed a complaint against Crahalla with this Commission. Additionally, Stewart
provided to the Montgomery County Times Herald and Associated Press copies of the
aforesaid complaint. At the time of such disclosures, Stewart had already placed the
complaint in the mail to this Commission, which complaint was received by this
Commission. The phraseology of Section 1108(k) encompasses a complaint that is
pending or will be pending before this Commission. Rittenbaugh, Order 1074. To hold
otherwise would lead to an absurd result that Section 1108(k) could be nullified by simply
timing the filing of a complaint. Id. We find that there is clear and convincing proof that
Stewart violated Section 1108(k of the Ethics Act when he breached confidentiality by
disclosing or acknowledging to Saviello and persons at the Montgomery County Times
Herald and Associated Press information relating to the complaint against Crahalla that he
filed with this Commission. See, Rittenbaugh, supra; Neary, Order No. 613 -R.
We shall now consider whether the Findings establish a wrongful use of act
pursuant to Section 1110(a)(1) of the Ethics Act. Pursuant to Section 1110(a)(1), a
wrongful use of occurs: (1) if a complaint was frivolous; or (2) if a complaint was filed
without probable cause and made primarily for a purpose other than that of reporting an
Ethics Act violation.
Based upon the Findings before us, we do not find Stewart's complaint against
Crahalla to have been frivolous. In order for a complaint to be frivolous, it must be filed in
a grossly negligent manner without basis in law or fact. 65 Pa.C.S. § 1102. That standard
has not been met in this case. We note that there are Commission precedents holding
that the use of governmental staff, equipment, supplies and facilities for campaign
purposes will support a violation of Section 1103(a) of the Ethics Act. See, e.q., Habay,
Orders 1313, 1313 -R; Lynch, Orders 1334, 1334 -R. Of course, the outcome of a particular
case will depend upon an application of the law to the unique facts of that case. There
may be instances where an outside source pays for the use of governmental staff,
equipment, supplies or facilities. There may be instances where a use of governmental
staff, equipment, supplies or facilities occurs, but the economic impact is de minimis. See,
Confidential Opinion, 05 -001. The factual and legal nuances of a given case will affect its
Stewart, 05- 017 -WUA (A &B)
Page 12
outcome, and a complainant is not held to the impossible standard of predicting that
outcome in advance.
Likewise, the facts before us fail to establish by clear and convincing proof that the
filing of the complaint by Stewart was done without probable cause and primarily for a
purpose other than that of reporting an Ethics Act violation. With regard to probable
cause, the Ethics Act provides:
§ 1110. Wrongful use of chapter
(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(b). Per the Findings before us, Stewart performed campaign - related
activities for Crahalla during normal business hours at Crahalla's district office. Based
upon this Commission's precedents, Stewart could reasonably believe that his complaint
against Crahalla might be valid. We note that the Findings do not enable us to determine
whether Stewart was even aware that from September 28, 2004, through October 26,
2004, one -half of his salary as a Legislative Assistant for Representative Crahalla was
paid for by the House Republican Campaign Committee. The Findings do not establish
whether such payment(s) by the House Republican Campaign Committee were paid
directly to Stewart or were reimbursed to the Commonwealth, or whether Stewart had any
knowledge of them. Based upon the limited information before us, there is a lack of clear
and convincing proof that Stewart's complaint was filed without probable cause.
Therefore, we need not address Stewart's primary purpose for filing the complaint.
We find that Stewart did not violate Section 1110(a)(1) of the Ethics Act as to the
filing of his complaint against Crahalla with this Commission, in that the complaint was not
frivolous and there is a lack of clear and convincing proof that the complaint was filed
without probable cause.
We shall now consider whether the Findings establish a wrongful use of act
pursuant to Section 1110(a)(2) of the Ethics Act. Pursuant to Section 1110(a)(2), a
wrongful use of act occurs if a complainant publicly discloses or causes to be disclosed
that a complaint against a person was filed with this Commission. Public disclosure
requires the divulging of the complaint to two or more people. Rittenbaugh, supra; In Re:
Ms. A, Order 1056. Stewart directly disclosed confidential information relating to the filing
of the complaint to Saviello, who operates a political website, and to persons at the
Montgomery County Times Herald and Associated Press. There were also further
disclosures, which Stewart caused, consisting of the publication of various newspaper
articles referencing the fact that Stewart had filed a complaint against Crahalla with this
Commission. Finding 21. Since such disclosures were made to more than one person,
they were public disclosures under Section 1110(a)(2). The actions by Stewart in
disclosing this confidential information to Saviello and multiple news organizations publicly
disclosed and caused to be further disclosed the complaint Stewart filed against Crahalla.
Hence, the first criterion of Section 1110(a)(2) has been met.
Stewart, 05- 017 -WUA (A &B)
Page 13
As to the second criterion, the complaint had been placed in the mail to this
Commission at the time of such public disclosures by Stewart. Additionally, Section
1110(a)(2), when read in conjunction with the Rules of Statutory Construction, 1 Pa.C.S. §
1902, makes it clear that a violation can occur even if the complaint is received at the
Commission after public disclosure is made. See, Rittenbaugh, supra. We find that
Stewart violated Section 1110(a)(2) of the Ethics Act when he publicly disclosed or caused
to be disclosed that a complaint against Crahalla had been filed with the State Ethics
Commission.
Chief Counsel is directed to release a non - redacted copy of this Order at such time
when this determination becomes a public document.
Stewart, 05- 017 -WUA (A &B)
Page 14
IV. CONCLUSIONS OF LAW:
1. James T. Stewart (hereinafter "Stewart "), as a private citizen who filed a complaint
with this Commission ggainst Jacqueline Crahalla ( "Crahalla "), State
Representative for the 150 Legislative District, is a Complainant subject to the
confidentiality and wrongful use of act provisions of the Public Official and
Employee Ethics Act ( "Ethics Act "), and specifically 65 Pa.C.S. §§ 1108(k),
1110(a)(1)- (a)(2).
2. Stewart violated Section 1108(k) of the Ethics Act when he breached confidentiality
as to the aforesaid complaint he filed against Crahalla.
3. Stewart did not violate Section 1110(a)(1) of the Ethics Act as to his filing of a
complaint against Crahalla with the State Ethics Commission, in that the complaint
was not frivolous and there is a lack of clear and convincing proof that the complaint
was filed without probable cause.
4. Stewart violated Section 1110(a)(2) of the Ethics Act when he publicly disclosed or
caused to be disclosed that a complaint against Crahalla had been filed with the
State Ethics Commission.
In Re: James T. Stewart
ORDER NO. 1393
File Docket: 05- 017 -WUA (A &B)
Date Decided: 2/23/06
Date Mailed: 3/13/06
1 James T. Stewart (hereinafter "Stewart "), a private citizen who filed a complaint with
this Corrimission against Jacqueline Crahalla ( "Crahalla "), State Representative for
the 150 Legislative District, violated Section 1108(k) of the Public Official and
Employee Ethics Act ( "Ethics Act ") when he breached confidentiality as to the
aforesaid complaint he filed against Crahalla.
2. Stewart did not violate Section 1110(a)(1) of the Ethics Act as to his filing of a
complaint against Crahalla with the State Ethics Commission, in that the complaint
was not frivolous and there is a lack of clear and convincing proof that the complaint
was filed without probable cause.
3. Stewart violated Section 1110(a)(2) of the Ethics Act when he publicly disclosed or
caused to be disclosed that a complaint against Crahalla had been filed with the
State Ethics Commission.
4. Chief Counsel is directed to release a non - redacted copy of this Order at such time
when this determination becomes a public document.
BY THE COMMISSION,
Louis W. Fryman, Chair