HomeMy WebLinkAbout1442 Complainant AIn Re: Complainant A, File Docket:
Respondent
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Nicholas A. Colafella
ID # 06 -024
LD # 06- 024 -WUA (A &B)
Order No. 1442
6/11/07
6/29/07
The Investigative Division of the State Ethics Commission conducted an
investigation regarding a possible wrongful use of act under the Public Official and
Employee Ethics Act, 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 filed and a hearing was held. The record is complete.
Upon issuance, this adjudication and Order shall constitute the "preliminary
determination" of this Commission as to wrongful use of the Ethics Act. Per the
Commission Regulations at 51 Pa. Code § 25.3(d), this Commission shall notify the
Complainant and the "Subjects" (the persons against whom the original Complaints were
filed) of the Commission's preliminary determination in this case. If no appeal is filed with
this Commission within thirty days after the mailing date noted above, the preliminary
determination will become absolute, will constitute the final determination of this
Commission as to wrongful use of the Ethics Act (51 Pa. Code § 25.4), and will be made
available in redacted form as a public document.
If the final determination of this Commission is that the Complainant has wrongfully
used the Ethics Act, then upon receiving a written request from a Subject, this Commission
shall provide to such Subject the name and address of the Complainant, together with a
copy of the final determination of this Commission. 65 Pa.C.S. § 1110(c).
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.
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 2
I. ALLEGATION:
That Complainant "A," a (private citizen) violated the following provisions of the
State Ethics Act (Act 93 of 1998) when he /she filed, or caused to be filed, a complaint
against Respondent "B" as a Borough "C" [sic] Mayor knowing that the complaint that was
filed was frivolous and without basis and [sic] law and fact.
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.
65 Pa. C. S. §1110(a).
II. FINDINGS:
A. Pleadings
1. The Investigative Division of the State Ethics Commission received a signed, sworn
complaint alleging that an unknown individual 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 April 19, 2006.
3. The preliminary inquiry was completed within sixty days.
4. On June 15, 2006, a letter was forwarded to Complainant "A," by the Investigative
Division of the State Ethics Commission informing him /her that a complaint against
him /her was received by the Investigative Division and that a full investigation was
being commenced.
a. Said letter was forwarded by certified mail, [no.] 7004 2890 0004 1229 2882.
b. The domestic return receipt bore the signature of Complainant "A," with a
delivery date of June 24, 2006.
5. Periodic notice letters were forwarded to Complainant "A" in accordance with the
provisions of the Ethics Law advising him /her of the general status of the
investigation.
6. The Investigative Complaint was mailed to the Respondent on December 1, 2006.
7. Complainant "A" is a private citizen and resident of Borough "D ", County "E."
8. Complainant "A" had been active, along with Individual "F," in protesting actions of
Borough "D" Council they opposed.
a. Complainant "A" frequently attended meetings to voice his /her opinions and
opposition.
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 3
b. Complainant "A" was opposed to council actions relating to [the] hiring of
Borough "D" Mayor Respondent "B" to the position of road supervisor.
c. Complainant "A" also opposed the hiring of Council Person "G" as assistant
secretary- treasurer [sic].
9. Borough "D" records confirm that Respondent "B" was hired as the part -time
supervisor for the road department on [date 1].
10. Complainant "A," a regular attendee at borough council meetings, verbally
challenged council and the solicitor as to the legality of hiring Respondent "B" as
road supervisor while simultaneously serving as Mayor.
a. On at least two occasions Borough "D" Solicitor "H" advised Complainant "A"
that Section 1104 of the Borough Code was not applicable to the hiring of
Respondent "B."
11. Borough "D" meeting minutes confirm Council Person "G" was hired as Assistant
Secretary of the Borough at the [date 3] regular meeting of Borough Council.
a. Complainant "A" was present at the meeting.
b. Complainant "A" questioned the solicitor, is it possible for a council person
to fill in as an assistant secretary, to do the job..."
12. [A] lawsuit [filed by Complainant "A" and Individual "F "] alleged that a violation of
Section 1104 of the Borough Code occurred when Respondent "B" was
compensated as both Mayor and road supervisor.
a. The lawsuit was filed with the Arbitration Division and assigned [Docket
Number 1].
b. [Another] lawsuit filed by Complainant "A" and Individual "F" alleged that a
violation of Section 1104 of the Borough Code occurred when Council
Person "G" was hired as Assistant Secretary.
13. Included as Motion !Hof the Preliminary Objections [filed by Borough Solicitor "H "]
was a Motion to Strike for the following reasons:
III. MOTION TO STRIKE AND DEMURRER PURSUANT TO PA. R.C.P.
1028(a)(4)
Plaintiffs' Complaint is deficient pursuant to PA. R.C.P. 1028(a)(4) for its
failure to state a claim upon which relief may be granted.
Borough Code §1104, 53 P.S. §46104 does not permit elected borough
officials of boroughs with a population of 3,000 or more to serve as an
employee of that borough. [Borough "D's "] population is [number below
3, 000].
For the foregoing reasons, Plaintiffs' Complaint fails to state a cause of
action upon which relief may be granted justifying the entry of a demurrer
pursuant to PA. R.C.P. 1028(a)(4).
14. On [date] 2006 *, the County "E" Court of Common Pleas issued an Order of Court
dismissing Complainant "A's" complaint with prejudice based on the Preliminary
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 4
Objections filed by Solicitor "H."
*[At the hearing in this matter, it was noted that this date should have been [date]
2004. (Tr. at 14 -15). The Complainant receives the benefit of the later averred
date. Bartholomew v. State Ethics Commission, 795 A.2d 1073 (Pa. Cmwlth.
2002).]
15. On or about November 18, 2005, Complainant "A" filed a sworn complaint with the
State Ethics Commission against Borough "D" Mayor Respondent "B."
a. Complainant "A" had the complaint notarized on 10/07/05 by Individual "F."
16. In the complaint Complainant "A" alleged that Respondent "B," in his /her public
position as Mayor of Borough "D," had violated the State Ethics Act when he /she
accepted compensation as the borough road supervisor while simultaneously
serving as borough mayor.
17. Upon review of the complaint the Investigative Division initiated a preliminary
inquiry on December 14, 2005, and assigned case no. 05 -058.
18. On or about January 20, 2006, Complainant "A" filed a complaint with the State
Ethics Commission alleging that Respondent "B" and Council Person "G" violated
provisions of the State Ethics Act.
a. The complaint was assigned complaint no. 27.
b. Complainant "A's" handwritten attachment to the complaint asserted as
follows regarding Respondent "B ":
...
We also have a mayor who holds multiple positions - Mayor, [fire
company officer]- and Boro Road Supervisor at [rate] an hour. Once again I
refer to boro code #1104 which says [he /she] can do the job but cannot as
mayor, be compensated therefor." ... It is wrong from [sic] them to have that
power and work as boro employees on an hourly payroll."
19. The State Ethics Commission Executive Director responded to Complainant "A's"
complaint no. 27 on January 23, 2006, as follows:
...
The information you submitted regarding [Respondent "B "] was previously
submitted by you and is being investigated to case no. 05 -058. Therefore, no
additional investigation will be initiated."
20. Article XI, Section 1104 of the Borough Code, Appointments; Incompatible Offices,
states:
"Unless there is incompatibility in fact, any elective or appointive officer
of the borough shall be eligible to serve on any board, commission,
bureau or other agency created or authorized by statute and may
accept appointments thereunder, but no mayor or councilman shall
receive compensation therefore. No elected borough official of a
borough with a population of 3,000 or more may serve as an employee
of that borough."
21. In an interview with a SEC investigator on 1/23/06, in regard to the complaint
he /she filed against Respondent "B," Complainant "A" confirmed his /her knowledge
of the population of the Borough as less than [number below 3,000]; and that the
solicitor had advised that the hiring of Council Person "G" as Assistant Secretary
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 5
was legal.
a. Complainant "A" alleged that there was a conflict in Respondent "B" holding
the three positions of Mayor, Road Supervisor and [fire company officer].
b. Complainant "A" believed it was inappropriate for Respondent "B" to use
borough personnel and equipment on borough time to perform work on the
[type of memorial] owned by the fire company where Respondent "B"
serves as [fire company officer].
22. The reverse side of the SEC complaint forms filed by Complainant "A" on
November 18, 2005, and January 20, 2006, includes a reprint of Sections 1110 (a)
and 1110(b) of the Ethics Act regarding a wrongful use of the act.
a. Section 1110(a) provides:
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
probable 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.
b. Section 1110(b) provides:
A person who signs a complaint alleging a violation of this act has probable
cause for doing so if he reasonable [sic] 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 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.
** "Frivolous Complaint" - A complaint filed in a grossly negligent manner
without basis in law or fact.
23. Complainant "A" filed three complaints with the State Ethics Commission within a
four month period of time alleging that Respondent "B," Borough "D" Mayor,
violated provisions of the Ethics Act.
a. All four [sic] complaints alleged a conflict for Respondent "B" to hold the
position of mayor and be compensated as borough road supervisor.
b. Complainant "A" filed the complaints even after being advised by the
borough solicitor of specific provisions of the borough code which
authorized the mayor to hold and receive compensation as road supervisor.
c. Complainant "A" also filed a civil action regarding the mayor's simultaneous
service which was dismissed in part, due to the provisions of the borough
code authorizing the holding of both positions.
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 6
B. Testimon
24. Solicitor "H" has served as solicitor of Borough "D" since [month, year].
a. Solicitor "H" testified that there is a specific Section of the Borough Code
that permits borough officials to serve in borough employee positions if the
borough population is less than 3,000.
b. It was the opinion of Solicitor "H" that Council Person "G" could serve as
Borough Assistant Secretary, and Solicitor "H" so indicated at the Borough
"D" Council meeting on [date 3]. (ID 5 -15).
c. Solicitor "H" testified that over a period of time, there were multiple legal
matters and lawsuits that had been filed by either Individual "F," Complainant
"A," or both against the Borough or elected Borough officials. (ID 5 -19; ID 5-
23; ID 5 -26; ID 5 -30; ID 5 -34; ID 5 -38).
d. The lawsuits filed by Individual "F" and Complainant "A" against Borough "D"
under docket numbers [Docket Number 1] and [Docket Number 2] were
consolidated.
e. ID 6 -40 -52 consists of Preliminary Objections and a supporting Brief filed on
behalf of the Borough with respect to the amended complaint filed by
Individual "F" and Complainant "A" under the consolidated cases at [Docket
Number 1] and [Docket Number 2].
f. Based upon Preliminary Objections filed by the Borough, the lawsuits filed by
Individual "F" and Complainant "A" against Borough "D" under [Docket
Number 1] and [Docket Number 2] were dismissed with prejudice by a one -
sentence Court Order, which indicated that the Plaintiffs had not appeared.
(ID 6 -53; see, Fact Finding 31 e).
g.
h. Solicitor "H" testified that as Borough road supervisor, Respondent "B" was
considered an employee of the Borough.
J.
Solicitor "H" testified that the position of road supervisor is not a Borough
office.
Solicitor "H" testified that Fire Company "I" ( "Fire Company ") is a completely
separate organization set up outside of the Borough "D" structure.
Solicitor "H" testified that Respondent "B's" position with the Fire Company is
not a Borough office.
k. The population of Borough "D" is less than 3,000.
I. Solicitor "H" testified that Individual "F" and Complainant "A" knew the
population of the Borough was less than 3,000, based upon petitions they
had filed to reduce the size of Council.
25. Robert Caruso is the Deputy Executive Director and Director of Investigations for
the State Ethics Commission.
a. ID 2 -1 -5 consists of a complaint with attachment filed by Complainant "A"
with the State Ethics Commission.
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 7
(1) This complaint was assigned number 315 and was received by the
Investigative Division of the Commission on November 18, 2005.
(2) This complaint was filed against Respondent "B."
(3) By letter dated December 9, 2005, Complainant "A" was informed that
no investigation would be commenced as to this complaint for the
stated reason that the complaint failed to provide sufficient specific
information to allow a determination as to whether these matters
should be further processed. (ID 2 -6).
b. ID 3 -1 -11 consists of a complaint with attachments filed by Complainant "A"
with the State Ethics Commission.
(1) This complaint was assigned number 327 and was received by the
Investigative Division of the Commission on November 18, 2005.
(2) This complaint was filed against Respondent "B."
(3) On December 14, 2005, a preliminary inquiry was opened as to this
complaint and the matter was assigned docket number 05 -058. (ID 3-
13).
(4) By letter dated February 27, 2006, Respondent "B" was notified that
following a preliminary inquiry, a full investigation would not be
commenced based upon a lack of sufficient evidence to support a
finding of probable cause that the Ethics Act had been violated and
based upon the fact that the activity in question appeared to be
permitted under the Borough Code. (ID 3 -14).
(a) A copy of this letter was provided to Complainant "A."
c. ID 4 -1 -16 consists of the third complaint with attachments filed by
Complainant "A" with the State Ethics Commission.
(1) This complaint was assigned number 27 and was received by the
Investigative Division of the Commission on January 20, 2006.
(2) This complaint was filed against Council Person "G" and Respondent
(3)
By letter dated January 23, 2006, Complainant "A" was informed: (1)
that the information submitted as to Respondent "B" had previously
been submitted by Complainant "A" and was being investigated under
case number 05 -058, such that no additional investigation would be
initiated; and (2) that the complaint as to Council Person "G" did not
provide any evidence of a use of the authority of public office by
Council Person "G" and failed to provide sufficient specific information
to allow a determination as to whether the matter should be further
pursued. (ID 4 -17).
26. Complainant "A" is a private citizen and resident of Borough "D." (See, Fact
Finding 7).
a. Complainant "A" testified that he /she and Individual "F" were the Borough
watchdogs and looked out for the public's interests at Borough meetings.
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 8
b. Complainant "A" testified that in response to requests for ordinances or
resolutions authorizing the positions held by Respondent "B" and Council
Person "G," he /she was informed that the documents did not exist.
(1) It was the view of Complainant "A" that in the absence of such
ordinances or resolutions, the positions for which Respondent "B" and
Council Person "G" were being compensated did not exist.
c. Complainant "A" testified that he /she did receive a resolution referring to the
Section of the Borough Code providing for the Assistant Secretary to perform
the duties of the Secretary in the event of the absence or disability of the
Secretary.
d. Complainant "A" testified that the last two employees hired by the Borough
were individuals involved with the Fire Company.
(1) Complainant "A" testified that these positions were filled without being
publicly advertised.
(2) Complainant "A" testified that by giving members of the Fire Company
jobs, Respondent "B" was getting their votes for re- election to office.
e. The Fire Company sells water to people living in Borough "D."
f. Complainant "A" testified that Respondent "B" drove the Fire Company
tanker selling water to residents when he /she was supposed to be working
on Borough time as road supervisor.
(1) Complainant "A" testified that the tanker was damaging the Borough
roads, which had a six -ton weight limit by ordinance.
(a) Complainant "A" testified that the Fire Company profited by
Respondent "B's" failure to enforce the weight -limit ordinance.
(2) Complainant "A" testified that the damage to the Borough roads
caused by the Fire Company tanker had to be repaired at taxpayer
expense.
g.
Complainant "A" did not include in his /her complaints an allegation
that Respondent "B" drove the Fire Company tanker selling water to
residents when he /she was supposed to be working on Borough time
as road supervisor.
(a) Complainant "A" testified that he /she did not have proof for
such an allegation, as he /she and Individual "F" were not able
to access the necessary logs.
Complainant "A" testified that Respondent "B" used the Borough truck and
road crew at taxpayer expense to do work on the [type of memorial] on
property owned by the Fire Company.
h. Complainant "A" testified that when the last lawsuit filed by Complainant "A"
and Individual "F" against Respondent "B" was dismissed with prejudice, the
only avenue remaining was the Ethics Commission.
(3)
(1) Complainant "A" testified that Complainant "A" and Individual "F" had
been found to have no standing to bring their charges forward in
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 9
C. Documents
27. ID 2 -1 -5 consists of a complaint with attachment filed by Complainant "A" with the
State Ethics Commission.
a. This complaint was assigned number 315 and was received by the
Investigative Division of the Commission on November 18, 2005.
b. This complaint was filed against Respondent "B."
c. The complaint alleges that Respondent "B" used his /her position as Borough
"D" Mayor to have a Councilperson sell [sponsor items] for a private [type of
memorial] owned by a fire company where the Mayor also serves as [fire
company officer].
d. The complaint alleges that Respondent "B" and a Councilperson misued
their Borough positions by getting involved in a fund raising event for a
memorial owned by the fire company where the Mayor serves as [fire
company officer].
e. The complaint alleges that Respondent "B" used a Borough truck and
personnel to move the [sponsor items] and material to the memorial owned
by the fire company where the Mayor serves as [fire company officer].
(1) The complaint avers that Borough equipment and personnel should
not have been used on private property for a private memorial.
f. The complaint alleges that it is improper for Respondent "B" to
simultaneously hold the positions of Mayor, road supervisor, and [fire
company officer].
By letter dated December 9, 2005, Complainant "A" was informed that no
investigation would be commenced as to this complaint for the stated reason
that the complaint failed to provide sufficient specific information to allow a
determination as to whether these matters should be further processed. (ID
2 -6).
g.
litigation.
28. ID 3 -1 -11 consists of a complaint with attachments filed by Complainant "A" with the
State Ethics Commission.
a. This complaint was assigned number 327 and was received by the
Investigative Division of the Commission on November 18, 2005.
b. This complaint was filed against Respondent "B."
c. This complaint alleges improper simultaneous service by Respondent "B" as
Mayor, compensated road supervisor, and [fire company officer].
d. The complaint cites the Borough Code as prohibiting a mayor from being
compensated for holding another borough office.
e. The complaint notes the potential for someone holding all three of the
aforesaid positions to veto ordinances including the annual tax ordinance if
he /she feels there is not enough money given to the fire company or to the
road department.
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 10
f. On December 14, 2005, a preliminary inquiry was opened as to this
complaint and the matter was assigned docket number 05 -058. (ID 3 -13).
By letter dated February 27, 2006, Respondent "B" was notified that
following a preliminary inquiry, a full investigation would not be commenced
based upon a lack of sufficient evidence to support a finding of probable
cause that the Ethics Act had been violated and based upon the fact that the
activity in question appeared to be permitted under the Borough Code. (ID
3 -14).
g.
29. ID 4 -1 -16 consists of the third complaint with attachments filed by Complainant "A"
with the State Ethics Commission.
a. This complaint was assigned number 27 and was received by the
Investigative Division of the Commission on January 20, 2006.
b. This complaint was filed against Council Person "G" and Respondent "B."
c. With regard to Council Person "G," the complaint objects to the procedure by
which Council Person "G" was elected to a four -year seat without resigning
his /her two -year seat.
d. With regard to Council Person "G," the complaint alleges that as a Council
Person holding the position of Borough Assistant Secretary, Council Person
"G" receives compensation in the latter position contrary to the Borough
Code.
e. With regard to Respondent "B," the complaint alleges simultaneous service
by Respondent "B" as Mayor, compensated road supervisor, and [fire
company officer].
(1) The complaint alleges that as Mayor, Respondent "B" is prohibited
under the Borough Code from being compensated as road supervisor.
f. By letter dated January 23, 2006, Complainant "A" was informed: (1) that
the information submitted as to Respondent "B" had previously been
submitted by Complainant "A" and was being investigated under case
number 05 -058, such that no additional investigation would be initiated; and
(2) that the complaint as to Council Person "G" did not provide any evidence
of a use of the authority of public office by Council Person "G" and failed to
provide sufficient specific information to allow a determination as to whether
the matter should be further pursued. (ID 4 -17).
30. ID 5 -1 -38 consists of certified copies of Borough "D" Council meeting minutes for
Regular Council Meetings held the following dates: [date 1]; [date 2]; [date 3]; [date
4]; [date 5]; [date 6]; [date 7]; [date 8]; and [date 9].
a. The Borough "D" Council meeting minutes for the Regular Council Meeting
on [date 1 ] include approval of a motion to hire Respondent "B" as the part -
time supervisor for the road department at [rate] per hour. (ID 5 -4).
b. The Borough "D" Council meeting minutes for the Regular Council Meeting
on [date 2] included commentary by Individual "F" that Council would be
voting on a multi -year agreement with the Road Department and a question
of whether the agreement would include the Mayor /Road Department
Supervisor. (ID 5 -6).
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 11
(1) Individual "F" was informed that the agreement would include the
Mayor /Road Department Supervisor. (ID 5 -6).
(2) A resolution was adopted authorizing the proper Borough officials to
sign the agreement with the Road Department. (ID 5 -9).
c. The Borough "D" Council meeting minutes for the Regular Council Meeting
on [date 3] include approval of a motion to adopt a resolution naming
Council Person "G" as Assistant Secretary at the current rate." (ID 5 -15).
(1) Complainant "A" questioned if a Councilperson could hold this
position, and Solicitor "H" stated that according to the Borough Code,
this was allowed. (ID 5 -15).
(2) Council Person "G" abstained from the vote. (ID 5 -15).
d. The Borough "D" Council meeting minutes for the Regular Council Meeting
on [date 4] include a Solicitor's report in which Solicitor "H" stated that a
Judge had dismissed a complaint from Individual "F" and Complainant "A"
about the Mayor and ordinance enforcement. (ID 5 -19).
(1) The minutes also refer to another meeting with a Judge regarding
issues raised by Individual "F" and Complainant "A." (ID 5 -19).
(2) The minutes refer to an October 20, 2003, executive session at which
four lawsuits filed by Individual "F" and Complainant "A" were
discussed, including three lawsuits against the Borough and one
lawsuit against Respondent "B." (ID 5 -19).
e. Council Person "G" prepared all of the Borough meeting minutes in evidence
commencing with the minutes for the Regular Council Meeting on [date 3] --
when Council Person "G" was first appointed Assistant Secretary -- forward.
(ID 5 -16, ID 5 -19, ID 5 -23, ID 5 -26, ID 5 -30, ID 5 -34, ID 5 -38).
31. ID 6 -1 -54 consists of copies of dockets and various filings in two lawsuits filed by
Individual "F" and Complainant "A" against Borough "D" under [Docket Number 1]
and [Docket Number 2].
a. ID 6 -22 -26 consists of the Complaint filed by Individual "F" and Complainant
"A" against Borough "D" under [Docket Number 1], which complaint
pertained, inter alia, to Council Person "G" serving as the Borough's
compensated Assistant Secretary (ID 6 -24).
b. ID 6 -3 -7 consists of the Complaint filed by Individual "F" and Complainant
"A" against Borough "D" under [Docket Number 2], which complaint
pertained to Respondent "B" serving as Mayor and being compensated for
the position of Borough road supervisor. (ID 6 -5).
c. These lawsuits under [Docket Number 1] and [Docket Number 2] were
consolidated.
d. ID 6 -40 -52 consists of Preliminary Objections and a supporting Brief filed on
behalf of the Borough with respect to the amended complaint filed by
Individual "F" and Complainant "A" under the consolidated cases at [Docket
Number 1] and [Docket Number 2].
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 12
(1) The Preliminary Objections included assertions of Plaintiffs' lack of
standing; the permissibility under the Borough Code of elected
borough officials serving as borough employees where the population
of the borough is less than 3,000; and the permissibility under the
Borough Code of Council Person "G's" service as Borough Assistant
Secretary. (ID 6- 40 -45).
(2) The Brief includes the following statement: "Further, to the extent that
the Borough has improperly compensated the Assistant Secretary,
this issue could be addressed and resolved through the audit
procedures pursuant to the Borough Code." (ID 6 -47; ID 6 -50).
e. Based upon the Preliminary Objections filed by the Borough, the lawsuits
filed by Individual "F" and Complainant "A" against Borough "D" under
[Docket Number 1 ] and [Docket Number 2] were dismissed with prejudice by
a one - sentence Court Order. (ID 6 -53).
(1)
(2)
The Order indicated that the Plaintiffs had not appeared. (ID 6 -53).
From the face of the Order (ID 6 -53), it cannot be determined whether
the Order was issued based upon lack of standing or any other
particular Preliminary Objection.
32. ID 8 -1 consists of a copy of 53 P.S. § 46104, which provides, in pertinent part, as
follows:
§ 46104. Appointments; incompatible offices
Unless there is incompatibility in fact, any elective or
appointive officer of the borough shall be eligible to serve on any
board, commission, bureau or other agency created by or for the
borough, or any borough office created or authorized by statute and
may accept appointments thereunder, but no mayor or member of
council shall receive compensation therefor. No elected borough
official of a borough with a population of 3,000 or more may serve as
an employe of that borough....
53 P.S. § 46104.
33. ID 8 -2 consists of a copy of 53 P.S. § 46112, which provides as follows:
§ 46112. Assistant secretary
Every borough council may, by resolution, appoint an assistant
secretary who shall, in the absence or disability of the secretary,
perform the duties and exercise the powers of the secretary. The
assistant secretary may be appointed from the membership of the
borough council, but shall not be any other officer thereof.
53 P.S. § 46112.
III. DISCUSSION:
Complainant "A" is a private citizen who filed complaints with this Commission
against Respondent "B," Mayor of Borough "D" ( "Borough "), and Council Person "G," a
Member of Borough Council. As a Complainant, Complainant "A" is subject to the wrongful
use of act provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), and
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 13
particularly 65 Pa.C.S. § 1110(a)(1).
The allegation before us is that Complainant "A" violated Section 1110(a)(1) of the
Ethics Act when he /she filed, or caused to be filed, a complaint against Respondent "B"
knowing that the complaint that was filed was frivolous and without basis in law and fact.
Section 1110(a)(1) of the Ethics Act provides that a wrongful use of the Ethics Act
occurs: (1) if a complaint was frivolous; or (2) if a complaint was filed without probable
cause and was made primarily for a purpose other than reporting an Ethics Act violation.
See, 65 Pa.C.S. § 1110(a)(1); 51 Pa. Code § 25.1(1) -(2); In Re: Ms. A, Order 1056.
The term "frivolous complaint" is defined in the Ethics Act as "[a] complaint filed in a
grossly negligent manner without basis in law or fact." 65 Pa.C.S. § 1102. This
Commission's Regulations define the term "gross negligence" as "[t]he failure to perform a
manifest duty in reckless disregard of the consequences or a gross want of care and
regard for the rights of others as to justify the presumption of willfulness and wantonness."
51 Pa. Code § 11.1.
The criteria pertaining to probable cause are set forth in the Ethics Act as follows:
Section 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).
Factually, Complainant "A" considers himself /herself a watchdog of Borough "D"
government. Complainant "A" and Individual "F" have been active in protesting certain
actions of Borough "D" Council. Complainant "A" and Individual "F" have filed multiple
lawsuits against the Borough or Borough officials.
Borough "D" records confirm that Respondent "B" was hired as the part -time
supervisor for the Borough road department on [date 1]. Complainant "A" challenged the
legality of hiring Respondent "B" as road supervisor while Respondent "B" simultaneously
served as Mayor.
The Borough Code provides, in pertinent part, as follows:
§ 46104. Appointments; incompatible offices
Unless there is incompatibility in fact, any elective or
appointive officer of the borough shall be eligible to serve on any
board, commission, bureau or other agency created by or for the
borough, or any borough office created or authorized by statute and
may accept appointments thereunder, but no mayor or member of
council shall receive compensation therefor. No elected borough
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 14
official of a borough with a population of 3,000 or more may serve as
an employe of that borough....
53 P.S. § 46104 (Emphasis added).
The evidence before us establishes that the population of the Borough is less than
3,000 and that at all times relevant to this matter, Complainant "A" has been aware of that
fact. On at least two occasions, Borough Solicitor "H" advised Complainant "A" that
Section 1104 of the Borough Code was not applicable to the hiring of Respondent "B."
During the time period relevant to this case, in addition to serving as Borough Mayor
and Borough road supervisor, Respondent "B" has also served as [fire company officer] of
Fire Company "I" ( "Fire Company "). Solicitor "H" testified that the Fire Company is a
completely separate organization set up outside of the Borough "D" structure.
Borough "D" meeting minutes confirm that Council Person "G" was hired as
Assistant Secretary of the Borough at the [date 3] regular meeting of Borough Council.
Complainant "A" was present at the meeting. Complainant "A" asked the solicitor whether
it would be possible for a council person to fill in as an assistant secretary.
The Borough Code provides, in pertinent part, as follows:
§ 46112. Assistant secretary
Every borough council may, by resolution, appoint an assistant
secretary who shall, in the absence or disability of the secretary,
perform the duties and exercise the powers of the secretary. The
assistant secretary may be appointed from the membership of the
borough council, but shall not be any other officer thereof.
53 P.S. § 46112.
Prior to filing complaints with this Commission, Complainant "A" and Individual "F"
filed lawsuits under [Docket Number 1] and [Docket Number 2] alleging violations of the
Borough Code with respect to Respondent "B's" simultaneous service as Mayor and
compensated road supervisor and Council Person "G's" service as the Borough's
compensated Assistant Secretary. These lawsuits were consolidated. Preliminary
Objections and a supporting Brief were filed on behalf of the Borough. The Preliminary
Objections included assertions of Plaintiffs' lack of standing; the permissibility under the
Borough Code of elected borough officials serving as borough employees where the
population of the borough is less than 3,000; and the permissibility under the Borough
Code of Council Person "G's" service as Borough Assistant Secretary. ID 6- 40 -45. The
Brief included a statement that could have been construed as supporting Plaintiffs' position
regarding Council Person "G."
Based upon the Preliminary Objections, the aforesaid lawsuits were dismissed with
prejudice by a one - sentence Court Order, which indicated that the Plaintiffs had not
appeared. (ID 6 -53). From the face of the Order (ID 6 -53), it cannot be determined
whether the Order was issued based upon lack of standing or any other particular
Preliminary Objection.
It was Complainant "A's" testimony that it had been determined that he /she and
Individual "F" lacked standing to file such lawsuits. Per admitted Fact Finding 23 c, the
dismissal was partially due to the provisions of the Borough Code authorizing Respondent
"B" to simultaneously hold both positions as Borough mayor and road supervisor. The
court filings within the record before us do not include any analysis by the Court on the
merits of Complainant "A's" and Individual "F's" substantive claims in these lawsuits.
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 15
It was Complainant "A's" testimony that when the last lawsuit filed by Complainant
"A" and Individual "F" against Respondent "B" was dismissed with prejudice, this
Commission was the only avenue available to Complainant "A."
On November 18, 2005, Complainant "A" filed two complaints with this Commission
against Respondent "B" as detailed in Fact Findings 27 -28.
On January 20, 2006, Complainant "A" filed a complaint with this Commission
against both Council Person "G" and Respondent "B," as detailed in Fact Finding 29.
The Complaint filed against Respondent "B" in evidence as ID 2 -1 -5 alleged, inter
alia, that it is improper for Respondent "B" to simultaneously hold the positions of Mayor,
road supervisor, and [fire company officer]. The Complaint further alleged that
Respondent "B" used a Borough truck and personnel to move [sponsor items] and material
to the memorial owned by the fire company where the Mayor serves as [fire company
officer]. By letter dated December 9, 2005, Complainant "A" was informed that no
investigation would be commenced as to this complaint for the stated reason that the
complaint failed to provide sufficient specific information to allow a determination as to
whether the matters referenced in the complaint should be further processed. (ID 2 -6).
The Complaint filed against Respondent "B" in evidence as ID 3 -1 -11 alleged
improper simultaneous service by Respondent "B" as Mayor, compensated road
supervisor, and [fire company officer]. The complaint cited the Borough Code as
prohibiting a mayor from being compensated for holding another borough office. The
complaint noted the potential for someone holding all three of the aforesaid positions to
veto ordinances including the annual tax ordinance if he /she would feel there was not
enough money given to the fire company or to the road department. On December 14,
2005, a preliminary inquiry was opened as to this complaint and the matter was assigned
docket number 05 -058. (ID 3 -13). By letter dated February 27, 2006, Respondent "B" was
notified that following a preliminary inquiry, a full investigation would not be commenced
based upon a lack of sufficient evidence to support a finding of probable cause that the
Ethics Act had been violated and based upon the fact that the activity in question
appeared to be permitted under the Borough Code. (ID 3 -14). A copy of this letter was
provided to Complainant "A."
The January 20, 2006, Complaint filed against both Council Person "G" and
Respondent "B" (ID 4 -1 -16) alleged, inter alia, that as a Council Person holding the
position of Borough Assistant Secretary, Council Person "G" received compensation in the
latter position contrary to the Borough Code. With regard to Respondent "B," the
complaint alleged simultaneous service by Respondent "B" as Mayor, compensated road
supervisor, and [fire company officer]. The complaint alleged that as Mayor, Respondent
"B" was prohibited under the Borough Code from being compensated as road supervisor.
By letter dated January 23, 2006, Complainant "A" was informed: (1) that the information
submitted as to Respondent "B" had previously been submitted by Complainant "A" and
was being investigated under case number 05 -058, such that no additional investigation
would be initiated; and (2) that the complaint as to Council Person "G" did not provide any
evidence of a use of the authority of public office by Council Person "G" and failed to
provide sufficient specific information to allow a determination as to whether the matter
should be further pursued. (ID 4 -17).
The reverse side of the SEC complaint forms filed by Complainant "A" with this
Commission included a reprint of Sections 1110(a) and 1110(b) of the Ethics Act
regarding wrongful use of the Ethics Act.
Both parties have filed briefs. The Investigative Division contends that
Complainant "A" filed complaints with this Commission knowing that his /her position had
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 16
little basis. The Complainant contends that the Borough never created the positions of
road supervisor and Assistant Secretary; that the Borough Code prohibits Council Person
"G" and Respondent "B" from being compensated in such positions; and that Borough
resources have been used for the benefit of the fire company. The Complainant also
notes Advice of Counsel [number], which addressed certain conflict of interest questions
posed under the Ethics Act as to Council Person "G," but which expressly did not address
the Borough Code.
Having highlighted the facts, we must now determine whether Complainant "A"
wrongfully used the Ethics Act when he /she filed the three aforesaid complaints with this
Commission.
A violation of the Ethics Act must be based upon clear and convincing proof. 65
Pa.C.S. § 1108(g). Clear and convincing proof 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 (Pa. 1998) (Citation omitted).
In Yakin, Order 999, we interpreted the Ethics Act's definition of the term "frivolous
complaint" as follows:
Id. at 14 -15.
As to probable cause, we stated:
Within the meaning of the Ethics Law, we find that
probable cause is a reasonable ground of suspicion which is
supported by circumstances sufficient to warrant an ordinary
prudent person in the same situation to believe that the
individual against whom the complaint was filed violated the
Ethics Law.
Id. at 15.
Id.
We determine that the Ethics Law's definition of
"frivolous complaint," i.e., "A complaint filed in a grossly
negligent manner without basis in law or fact," means a
complaint which is filed based upon mere suspicion or
speculation and an indisputably meritless legal theory, and
which has been filed with substantially more than ordinary
carelessness, inadvertence, laxity or indifference, and a
reckless disregard for the consequences.
We further stated:
The standard is stringent. It was meant to be stringent.
In drafting this provision, the Legislature was necessarily
mindful of the chilling effect which wrongful use of Act cases
would bring to the filing of complaints with this Commission.
The Legislature clearly intended that findings of wrongful use of
Act be restricted to egregious situations.
We determine that the stringent standard for establishing a wrongful use of act
under Section 1110(a)(1) of the Ethics Act has not been met in this case.
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 17
We initially note that in the litigation under [Docket Number 1 ] and [Docket Number
2], which preceded the filing of complaints with this Commission, the Complainant did not
receive a judicial analysis of the merits of Complainant's claims.
Additionally, each complaint subsequently filed with this Commission contained
some factual basis and a legal theory that was not indisputably meritless.
The Complaints filed against Respondent "B" alleged, inter alia, that: (1) it was
improper for Respondent "B" to simultaneously hold the positions of Mayor, compensated
road supervisor, and [fire company officer]; and (2) that Respondent "B" used a Borough
truck and personnel to move [sponsor items] and material to the memorial owned by the
fire company where the Mayor serves as [fire company officer]. As to the former, a
reasonably prudent person might not grasp the nuances of legal distinctions between
positions of employment and offices. As to the latter, there are numerous Commission
precedents holding 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. See, e.q., 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.
The Complaint filed against both Respondent "B" and Council Person "G" alleged,
inter alia, that as a Council Person holding the position of Borough Assistant Secretary,
Council Person "G" received compensation in the latter position contrary to the Borough
Code. Given: that 53 P.S. § 46104 on its face prohibits a borough council person from
being compensated for holding another borough office; that 53 P.S. § 46112 provides that
"[t]he assistant secretary may be appointed from the membership of the borough council,
but shall not be any other officer thereof "; and that a statement in a brief filed on behalf of
the Borough in the aforesaid litigation could have been construed to support the
Complainant's position, we find that the Complainant's legal theory was not indisputably
meritless.
Additionally, we determine that based upon all of the above, the complaints were
supported by circumstances sufficient to warrant an ordinary prudent person in the same
situation to believe that the individuals against whom the complaints were filed had
violated the Ethics Act, and that the complaints were not filed primarily for a purpose other
than reporting a violation of the Ethics Act. We find that the Complainant was sincere in
his /her perceived role as a Borough watchdog, and that he /she believed the Ethics Act
afforded a basis for his /her complaints.
Based upon the above analysis, we find no wrongful use of act as to the three
particular complaints before us for review.
However, we strongly caution the Complainant that this Commission is not a filing
location for every grievance a Borough citizen might have against Borough government.
The Complainant would do well to seek legal advice as to the merits of his /her claims prior
to filing any future complaints with this Commission.
IV. CONCLUSIONS OF LAW:
1. Complainant "A," a private citizen and resident of Borough "D" who on November
18, 2005, and January 20, 2006, filed certain complaints with this Commission
against Respondent "B," Mayor of Borough "D" ( "Borough "), and Council Person
Complainant A, 06 -024
ID # 06 -024; LD # 06- 024 -WUA (A &B)
Page 18
"G," a Member of Borough Council, is a Complainant subject to the wrongful use of
act provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), and
specifically Section 1110(a)(1) of the Ethics Act, 65 Pa.C.S. § 1110(a)(1).
2. Complainant "A" did not violate Section 1110(a)(1) of the Ethics Act as to the filing
of a frivolous complaint with this Commission in that the aforesaid complaints filed
by Complainant "A" were not filed in a grossly negligent manner without basis in law
or fact.
3. Complainant "A" did not violate Section 1110(a)(1) of the Ethics Act as to the filing
of a complaint without probable cause and primarily for a purpose other than that of
reporting a violation of the Ethics Act, in that the complaints were supported by
circumstances sufficient to warrant an ordinary prudent person in the same situation
to believe that the individuals against whom the complaints were filed had violated
the Ethics Act, and the complaints were not filed primarily for a purpose other than
that of reporting a violation of the Ethics Act.
In Re: Complainant "A,"
Respondent
File Docket: ID # 06 -024
LD # 06- 024 -WUA (A &B)
Date Decided: 6/11/07
Date Mailed: 6/29/07
ORDER NO. 1442
1 Complainant "A," a private citizen and resident of Borough "D" who on November
18, 2005, and January 20, 2006, filed certain complaints with this Commission
against Respondent "B," Mayor of Borough "D" ( "Borough "), and Council Person
," a Member of Borough Council, did not violate Section 1110(a)(1) of the Ethics
Act as to the filing of a frivolous complaint with this Commission in that the
aforesaid complaints filed by Complainant "A" were not filed in a grossly negligent
manner without basis in law or fact.
2. Complainant "A" did not violate Section 1110(a)(1) of the Ethics Act as to the filing
of a complaint without probable cause and primarily for a purpose other than that of
reporting a violation of the Ethics Act, in that the complaints were supported by
circumstances sufficient to warrant an ordinary prudent person in the same situation
to believe that the individuals against whom the complaints were filed had violated
the Ethics Act, and the complaints were not filed primarily for a purpose other than
that of reporting a violation of the Ethics Act.
BY THE COMMISSION,
Louis W. Fryman, Chair