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HomeMy WebLinkAbout06-596 CONFIDENTIAL ADVICEADVICE OF COUNSEL November 3, 2006 06 -596 This responds to your letter of October 12, 2006, by which you requested a confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would prohibit an individual from disclosing to a law enforcement agency that the individual had filed a complaint with the State Ethics Commission against a public official /public employee when: (1) the public official /public employee physically assaulted the individual after the complaint was filed; (2) the assault possibly occurred as a result of the public official's /public employee's belief that the individual had filed a complaint against him with the State Ethics Commission; (3) the individual thereafter filed a complaint with regard to the assault with the law enforcement agency; and (4) an investigator from the law enforcement agency subsequently asked the individual why the public official /public employee might have assaulted him. Facts: You filed a complaint with the State Ethics Commission against a public official /public employee. Subsequently, that person physically assaulted you. It is your view that the assault occurred because the person believed that you had filed a complaint against him with the State Ethics Commission. Thereafter, you filed a complaint with regard to the assault with Law Enforcement Agency A. When an investigator from Law Enforcement Agency A asked you several times why the person might have assaulted you, you told the investigator that you were not allowed to tell him why. You express your belief that this caused you to lose credibility with the investigating officer. You seek guidance as to whether you would transgress the Ethics Act if you would divulge to Law Enforcement Agency A that you had filed a complaint with the State Ethics Commission against the public official /public employee prior to the occurrence of the assault. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an Confidential Advice, 06 -596 November 3, 2006 Page 2 independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. As a resident of Pennsylvania, you are subject to Section 1108(k) of the Ethics Act, which governs the confidentiality of investigations by the State Ethics Commission. Section 1108(k) of the Ethics Act provides as follows: § 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; filing an appeal from a commission order; 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 by the law enforcement official or agency; 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) (Emphasis added). On its face, Section 1108(k)(6) of the Ethics Act permits the disclosure of confidential matters before the Commission when the matters pertain to consulting with a law enforcement official or agency for the purpose of initiating, participating in or (3) (4) (5) (7) Confidential Advice, 06 -596 November 3, 2006 Page 3 responding to an investigation by the law enforcement official or agency. It is noted that Section 1108(k)(6) does not restrict the disclosure of confidential Commission matters only to situations where the investigation by the law enforcement official or agency is directly related to the underlying circumstances that serve as the basis for the matters before the Commission. In applying the above provisions of the Ethics Act to the facts that you have submitted, you are advised as follows. Section 1108(k)(6) of the Ethics Act would permit you to disclose to an investigator from Law Enforcement Agency A that you had filed a complaint with the State Ethics Commission against the public official /public employee who assaulted you, when the disclosure would be for the purpose of participating in or responding to that law enforcement agency's investigation into the assault. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation, or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a resident of Pennsylvania, you are subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., that govern the confidentiality of investigations by the State Ethics Commission. Section 1108(k) of the Ethics Act provides that 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 p etition for reconsideration which is before the Commission. However, Section 1108(k)(6) of the Ethics Act permits the disclosure of confidential matters before the Commission when the matters pertain to consulting with a law enforcement official or agency for the purpose of initiating, participating in or responding to an investigation by the law enforcement official or agency. Section 1108(k)(j) of the Ethics Act would permit you to disclose to an investigator from Law Enforcement Agency A that you had filed a complaint with the State Ethics Commission against the public official /public employee who assaulted you, when the disclosure would be for the purpose of participating in or responding to that law enforcement agency's investigation into the assault. Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787 - 0806). Failure to Confidential Advice, 06 -596 November 3, 2006 Page 4 file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel