HomeMy WebLinkAbout1346 Complainant AIn 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
ID # 04 -038
LD # 04- 038 -WUA (A &B)
Order No. 1346
9/20/04
10/1/04
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 -059 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 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 Complainant acted without probable cause and in a grossly negligent manner, and
that the complaint was not filed for the purpose of reporting a violation of the Ethics Act.
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
In Re: Complainant A, Case 04- 038 -WUA (A &B)
Page 2
determination.
In Re: Complainant A, Case 04- 038 -WUA (A &B)
Page 3
I. FINDINGS:
1. At all times relevant to this matter, the Subject has served as executive director of a
state agency.
2. The Complainant filed a sworn complaint with this Commission alleging that the
Subject failed to disclose on Statement(s) of Financial Interests the receipt of a
certain gift valued in excess of $250.
3. Following a preliminary inquiry, the investigative proceedings as to the Subject were
closed based upon a finding that there was insufficient evidence to establish
probable cause that the Ethics Act had been violated.
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. There has been no allegation of any public disclosure by the Complainant of
this Commission's proceedings as to the Subject.
b. Although the Subject was not specifically provided with the gift in question
for his own use, he was in possession of two such gifts of like kind at some
point in time, specifically: (1) he arranged for a subordinate employee to
deliver one such gift to a former official /employee of his agency; and (2) he
had constructive possession of another such gift provided to another public
official of the agency after it was converted to a donation to the agency.
c. An objective observer could have reasonably concluded that the Subject did
receive something of value that should have been reported on his
Statement(s) of Financial Interests.
d. The fact that the Subject did not personally retain such gifts was not a fact
that could easily be determined by the Complainant, but rather, required
specific investigative steps and efforts for verification.
II. DISCUSSION:
At all times relevant to this matter, the Subject has served as executive director of a
state agency, 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 03 -059) alleging that the Subject failed to disclose on Statement(s) of Financial
Interests the receipt of a certain gift valued in excess of $250. Section 1105(b)(6) of the
Ethics Act requires filers to disclosure on their Statements of Financial Interests the name
and address of the source and the amount of any gift(s) valued in the aggregate at $250 or
more and the circumstances of each gift:
§ 1105. Statement of financial interests
(b) Required information. - -The statement shall include the
following information for the prior calendar year with regard to
the person required to file the statement:
(6) The name and address of the source and the amount of
In Re: Complainant A, Case 04- 038 -WUA (A &B)
Page 4
any gift or gifts valued in the aggregate at $250 or more and
the circumstances of each gift. This paragraph shall not apply
to a gift or gifts received from a spouse, parent, parent by
marriage, sibling, child, grandchild, other family member or
friend when the circumstances make it clear that the motivation
for the action was a personal or family relationship. However,
for the purposes of this paragraph, the term "friend" shall not
include a registered lobbyist or an employee of a registered
lobbyist.
65 Pa.C.S. § 1105(b)(6).
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 although the
Subject was not specifically provided with the gift in question for his own use, he was in
possession of two such gifts of like kind at some point in time, as detailed in the Findings
above. An objective observer could have reasonably concluded that the Subject did
receive something of value that should have been reported on his Statement(s) of
Financial Interests. Furthermore, the fact that the Subject did not personally retain such
gifts was not a fact that could easily be determined by the Complainant, but rather,
required specific investigative steps and efforts for verification.
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 Complainant acted without
probable cause and in a grossly negligent manner.
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
65 Pa.C.S. §§ 1110(a), (b).
(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.
In Re: Complainant A, Case 04- 038 -WUA (A &B)
Page 5
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 by the Complainant of this Commission's proceedings as to the Subject, we may
only find a wrongful use of act if we determine 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.
It is our preliminary determination that under the facts and circumstances presented
in this case, specifically, that: (1) an objective observer could have reasonably concluded
that the Subject did receive something of value that should have been reported on his
Statement(s) of Financial Interests; and (2) the fact that disclosure was not required could
only be determined following investigative work, there is no basis for concluding that the
complaint was frivolous or without probable cause.
Given the above, 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.
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 has served as executive director of a
state agency, 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 -059) was
frivolous or without probable cause.
3. 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 -059.
In Re: Complainant A
File Docket: ID # 04 -038
LD # 04- 038 -WUA (A &B)
Date Decided: 9/20/04
Date Mailed: 10/1/04
ORDER NO. 1346
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 -059.
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