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HomeMy WebLinkAbout1401 Complainant AIn Re: Complainant A and Mr. B : 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 # 06 -014 LD # 06- 014 -WUA (A &B) Order No. 1401 5/31/06 6/12/06 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 04 -042 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 so informed the Complainant and the Subject. Thereafter, the Subject sought a finding as to wrongful use of the Ethics Act by the Complainant, alleging that the information provided to this Commission was frivolous and that the complaint was initiated without probable cause and primarily for a purpose other than reporting a violation of the Ethics Act. The Subject also asserted a confidentiality violation by the individual referred to herein as Mr. B, who the Subject believed to be the Complainant. The Investigative Division conducted a preliminary inquiry as to wrongful use of act and submitted a report and recommendation 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 that 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 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 In Re: Complainant A and Mr. B, Case 06- 014 -WUA (A &B) Page 2 evidence. 51 Pa. Code § 25.4(b)(2). This Commission will then make a final determination. I. FINDINGS: 1. At all times relevant to this matter, the Subject has served as a Lieutenant or Chief of Police for a Pennsylvania Township of the Second Class. 2. The Complainant filed a sworn complaint with this Commission against the Subject, and the Investigative Division initiated a preliminary inquiry. 3. The preliminary inquiry as to the Subject focused upon the Subject's use, for personal purposes, of the Township police vehicle assigned to him. 4. The Investigative Division's preliminary inquiry as to the Subject indicated that: a. There was confirmation that the Subject used the Township police vehicle assigned to him to attend a Penn State football game in State College, Pennsylvania. b. There was information indicating that the Subject might also have taken the Township police vehicle assigned to him on vacation for one week in August 2003 at a South Carolina beach location. 5. Following the preliminary inquiry, the investigative proceedings as to the Subject were closed based upon a determination that there was insufficient information to support a finding of probable cause that the Ethics Act had been violated. 6. The Subject has alleged that the information provided to this Commission was frivolous and that the complaint was initiated without probable cause and primarily for a purpose other than reporting a violation of the Ethics Act. 7 The Investigative Division is of the view that the complaint against the Subject was not frivolous or without probable cause. 8. The Investigative Division is of the view that the complaint against the Subject had a basis in law and fact. 9. The Investigative Division has indicated that it exercised its prosecutorial discretion to not further pursue the matter against the Subject because: (a) other individuals in the Township had similarly used Township equipment for non - Township purposes; and (b) the Township had no applicable policy in existence at that time but subsequently remedied the situation by enacting a policy prohibiting the utilization of Township equipment for such purposes. 10. The Subject has also asserted a wrongful use of act based upon an alleged breach of confidentiality by the individual referred to herein as Mr. B, who the Subject believes to be the Complainant. a. The Subject has asserted that Mr. B made certain public comments to the Township Board of Supervisors regarding Mr. B's possession of Ethics complaint forms. 11. The Investigative Division's investigative review as to the alleged breach of confidentiality by Mr. B has indicated that: In Re: Complainant A and Mr. B, Case 06- 014 -WUA (A &B) Page 3 a. The information submitted by the Subject's counsel in support of the Subject's position does not contain any references by Mr. B regarding an Ethics complaint or investigation as to the Subject. (1) The Subject's Counsel has submitted meeting minutes for a June 14, 2004, meeting of the Township Board of Supervisors, which minutes state that Mr. B was here with Ethics complaint forms that he is filing with the state re: [Mr. C] and [Mr. D]," and that Mr. B stated that [Mr. C] had not filed an Ethics form by [date] with the township. (a) Neither of the individuals referred to herein as Mr. C and Mr. D is the Subject. (2) The meeting minutes indicate further discussion regarding Mr. D failing to list income on his Ethics form. The meeting minutes indicate that Mr. B later questioned whether the Subject had used one of the police cars to go to a Penn State game. (a) The question was not answered and no reference was made to an Ethics complaint or investigation. b. The Subject's attorney has acknowledged that he was not aware of any specific confidentiality breaches during the preliminary inquiry into the allegations against the Subject. (3) II. DISCUSSION: At all times relevant to this matter, the Subject has served as a Lieutenant or Chief of Police for a Pennsylvania Township of the Second Class (the "Township "), and as such, the Subject has been 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 04 -042), and the Investigative Division opened a preliminary inquiry. The preliminary inquiry focused upon the Subject's use for personal purposes of the Township police vehicle assigned to him. We note that the use of government staff, time, equipment, facilities, or property for non - governmental purposes — including business, personal, or political purposes —is generally prohibited and may form the basis for a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a). See, e.q., Confidential Opinion, 05 -001; Heck, Order 1251, Holt, Order 1153 (business purposes); Moore, Order 1317, Meduka, Order 1277, Sullivan, Order 1245, Dovidio, Order 1202 (personal purposes); Habay, Order 1313, Livingston, Order 1030, Rockefeller, Order 1004, Freind, Order 800 (political purposes). This Commission has long held that government offices, facilities, equipment, and personnel are to be used for governmental purposes and not for private, business or campaign /re- election activities. See, Smythe, Order 1121; Rakowsky, Order 943; Eck, Order 787; Freind, supra; Ferlo, Opinion 97 -005. Recently, we have found violations of Section 1103(a) of the Ethics Act by a township supervisor who went grocery shopping during township work hours using a township vehicle, Marhefka, Order 1388, and by another township supervisor who used his township's high -lift, trimmer /mower, and other equipment for personal purposes, Mook, Order 1356. In Re: Complainant A and Mr. B, Case 06- 014 -WUA (A &B) Page 4 In the instant matter, the Investigative Division's preliminary inquiry as to the Subject indicated that there was confirmation that the Subject used the Township police vehicle assigned to him to attend a Penn State football game in State College, Pennsylvania, and that there was information indicating that the Subject might also have taken the Township police vehicle assigned to him on vacation for one week in August 2003 at a South Carolina beach location. Although the Investigative Division concluded that the complaint against the Subject was not frivolous or without probable cause, but rather, had a basis in law and fact, the Investigative Division exercised its prosecutorial discretion in not further pursuing the matter against the Subject because: (a) other individuals in the Township had similarly used Township equipment for non - Township purposes; and (b) the Township had no applicable policy in existence at that time but subsequently remedied the situation by enacting a policy prohibiting the utilization of Township equipment for such purposes. The base case having been closed, the Subject has now requested a determination as to wrongful use of act by the Complainant, alleging that the information provided to this Commission was frivolous and that the complaint was filed without probable cause and primarily for a purpose other than reporting a violation of the Ethics Act. The Subject has also asserted a wrongful use of act based upon an alleged breach of confidentiality by the individual referred to herein as Mr. B, who the Subject believes to be the Complainant. The information submitted by the Subject's counsel in support of the Subject's position does not contain any references by Mr. B regarding an Ethics complaint or investigation as to the Subject. The Subject has asserted that Mr. B made certain public comments to the Township Board of Supervisors regarding Mr. B's possession of Ethics complaint forms. The Subject's Counsel has submitted meeting minutes for a June 14, 2004, meeting of the Township Board of Supervisors, which minutes state that Mr. B was here with Ethics complaint forms that he is filing with the state re: [Mr. C] and [Mr. D]," and that Mr. B stated that [Mr. C] had not filed an Ethics form by [date] with the township. Neither of the individuals referred to herein as Mr. C and Mr. D is the Subject. The meeting minutes indicate further discussion regarding Mr. D failing to list income on his Ethics form. The meeting minutes indicate that Mr. B later questioned whether the Subject had used one of the police cars to go to a Penn State game. The question was not answered and no reference was made to an Ethics complaint or investigation. 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 In Re: Complainant A and Mr. B, Case 06- 014 -WUA (A &B) Page 5 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. In applying the above provisions to the facts and circumstances presented in this case, it is the preliminary determination of this Commission that there has been no wrongful use of the Ethics Act established in this matter. First, in light of the precedents of this Commission, the fact that the Subject used, for personal purposes, the Township police vehicle assigned to him necessitates the conclusion that the complaint against the Subject had a basis in law and fact and was neither frivolous nor without probable cause. Given that conclusion, we need not and do not address whether the complaint was made primarily for a purpose other than that of reporting a violation of the Ethics Act. We shall now address the Subject's allegation of wrongful use of the Ethics Act based upon an alleged breach of confidentiality by Mr. B. Section 1110 of the Ethics Act pertaining to wrongful use of the act applies exclusively to complainants. The Subject has asserted that Mr. B was the Complainant in case number 04 -042. Without addressing the identity of the Complainant, we find that there is insufficient evidence to support a wrongful use of the Ethics Act based upon an alleged breach of confidentiality by Mr. B. There is no evidence whatsoever that Mr. B publicly disclosed or caused to be disclosed that a complaint against the Subject had been filed with this Commission. As for alleged references to other individuals, the sweeping assertion in the meeting minutes that Mr. B was here with Ethics complaint forms that he is filing with the state re: [Mr. C] and [Mr. D]," is an insufficient basis upon which to reach any conclusions or find any violations of the Ethics Act based upon what, if anything, Mr. B actually said. The essential elements for a wrongful use of the Ethics Act have not been established in this matter. III. CONCLUSIONS OF LAW: 1. At all times relevant to this matter, the Subject has served as a Lieutenant or Chief of Police for a Pennsylvania Township of the Second Class (the "Township "), and as such, the Subject has been a public official /public employee subject to the provisions of the Ethics Act. In Re: Complainant A and Mr. B, Case 06- 014 -WUA (A &B) Page 6 2. Under the facts and circumstances presented in this matter, there is no basis for concluding that the complaint filed against the Subject at case number 04 -042 was frivolous or without probable cause. 3. Without addressing the identity of the Complainant, there is insufficient evidence to support a wrongful use of the Ethics Act based upon an alleged breach of confidentiality by Mr. B. 4. The essential elements for a wrongful use of the Ethics Act have not been established in this matter. In Re: Complainant A and Mr. B : File Docket: Date Decided: Date Mailed: ORDER NO. 1401 ID # 06 -014 LD # 06- 014 -WUA (A &B) 5/31/06 6/12/06 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 04 -042. 2. Without addressing the identity of the Complainant, it is the preliminary determination of this Commission that there is insufficient evidence to support a wrongful use of the Ethics Act based upon an alleged breach of confidentiality by Mr. B. 3. 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