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HomeMy WebLinkAbout1386In Re: Complainant A 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 Reverend Scott Pilarz ID # 05 -043 LD # 05- 043 -WUA (A &B) Order No. 1386 12/12/05 12/23/05 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 05 -013 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 based upon a lack of probable cause that the Ethics Act had been violated and a finding that certain conduct in question was de minimis in nature. Issues involving the Subject's Statements of Financial Interests were handled administratively. The Subject sought a finding as to wrongful use of the Ethics Act by the Complainant, alleging that the complaint was filed in a grossly negligent manner and was frivolous. An investigative review was conducted as to wrongful use of act, and the Investigative Division submitted a report and recommendation. 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 In Re: Complainant A, Case 05- 043 -WUA (A &B) Page 2 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. In Re: Complainant A, Case 05- 043 -WUA (A &B) Page 3 I. FINDINGS: 1. At all times relevant to this matter, the Subject served as a township secretary /treasurer, but has since resigned from that position. 2. The Complainant filed a sworn complaint with this Commission alleging that the Subject used the aforesaid public positions to hire immediate family members to work for the township and was also involved in paying township funds to family members hired by the township. 3. Following a preliminary inquiry, the investigative proceedings as to the Subject were closed without the initiation of a full investigation, based upon the dual finding that there was a lack of probable cause that the Ethics Act had been violated and that certain conduct in question (signing checks) was de minimis in nature. 4. The Investigative Division's preliminary inquiry as to the Subject together with the investigative review as to wrongful use of act have indicated that: a. The Subject has alleged that the complaint was filed in a grossly negligent manner and was frivolous. (1) The Subject has not alleged that the complaint was made primarily for a purpose other than that of reporting a violation of the Ethics Act. (2) The Subject has not alleged any public disclosure or dissemination by the Complainant of the fact that a complaint was filed with this Commission as to the Subject. b. Due to the informal hiring process used in the township, it would have been difficult for the complainant to distinguish which individuals hired whom. (1) Township hirings were neither conducted at a township meeting nor recorded in township minutes. c. The Subject was the sole signatory on township checks made out to the Subject and to the Subject's immediate family members. (1) The Subject was not aware that the Subject could not sign township checks payable to the Subject or to the Subject's immediate family member(s). (2) During the time period that was reviewed, the Subject's signature was the only signature recognized as the authorizing signature for checks issued from the township bank account. If the checks in question had not been signed by the Subject, they could not have been cashed. (3) d. The Investigative Division determined that the allegation as to the signing of the aforesaid checks had a factual basis. (1) The Investigative Division reported that this allegation was not pursued due to its technical nature. In Re: Complainant A, Case 05- 043 -WUA (A &B) Page 4 II. DISCUSSION: At all times relevant to this matter, the Subject served as a township secretary /treasurer, and as such, the Subject was a public official /public employee subject to the provisions of the Ethics Act. The Complainant filed a complaint with this Commission against the Subject (case number 05 -013) alleging that the Subject used the aforesaid public positions to hire immediate family members to work for the township and was also involved in paying township funds to family members hired by the township. Section 1103(a) of the Ethics Act provides as follows: § 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. "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. 65 Pa.C.S. § 1102. Section 1103(f) of the Ethics Act provides as follows: § 1103. Restricted activities (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his In Re: Complainant A, Case 05- 043 -WUA (A &B) Page 5 spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa. C. S. § 1103(f). Factually, the Investigative Division's preliminary inquiry as to the Subject together with the investigative review as to wrongful use of act have indicated that due to the informal hiring process used in the township, it would have been difficult for the complainant to distinguish which individuals hired whom. The preliminary inquiry further indicated that the Subject was the sole signatory on township checks made out to the Subject and to the Subject's immediate family members. The Investigative Division determined that the allegation as to the signing of such checks had a factual basis. The Investigative Division has reported that this allegation was not pursued due to its technical nature. With the base case closed, the Subject has requested a determination as to wrongful use of act by the Complainant, alleging that the complaint was filed in a grossly negligent manner and was frivolous. The elements of wrongful use of act are set forth in Section 1110 of the Ethics Act: § 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 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 In Re: Complainant A, Case 05- 043 -WUA (A &B) Page 6 (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. Given that there has been no allegation of any public disclosure or dissemination by the Complainant of the fact that a complaint was filed with this Commission as to the Subject, we would only be able to find a wrongful use of act if we determined both that the complaint was frivolous or without probable cause and that it was made primarily for a purpose other than that of reporting a violation of the Ethics Act. It is clear that the essential elements for a wrongful use of act have not been met in this matter, if for no other reason than the fact that there is no basis to conclude that the complaint was made primarily for a purpose other than that of reporting a violation of the Ethics Act. Without that essential element, a wrongful use of act may not be found. Although we need not go any further to dispose of this matter, we also note the following. The Investigative Division determined that the allegation involving the signing of checks had a factual basis. Given the Investigative Division's determination of a factual basis for that allegation, and given that there are numerous precedents of this Commission finding violations of the Ethics Act based upon a public official /public employee signing checks issued to himself /herself, to immediate family members, or to businesses with which such individuals are associated (see, e.q., Gardecki, Order 1311; Trimer, Order 1285; Breneiser, Order 1181; Buler, Order 1180; Kurtz, Order 1116), there would be no basis for finding the complaint to have been frivolous or without probable cause. The essential elements for a wrongful use of act have not been met in this matter. III. CONCLUSIONS OF LAW: 1. At all times relevant to this matter, the Subject served as a township secretary /treasurer, and as such, the Subject was 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 to conclude that the complaint filed against the Subject (case number 05 -013) was 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 to conclude that the complaint filed against the Subject (case number 05 -013) was frivolous, filed in a grossly negligent manner, or without probable cause. In Re: Complainant A, Case 05- 043 -WUA (A &B) Page 7 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 05 -013. In Re: Complainant A File Docket: Date Decided: Date Mailed: ORDER NO. 1386 ID # 05 -043 LD # 05- 043 -WUA (A &B) 12/12/05 12/23/05 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 05 -013. 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