Stilp v. Contino

• Decision Date: 29 June 2009
• Docket Number: Civil Action No. 1:09-CV-0524.
• Citation: 629 F.Supp.2d 449
• Parties: Gene STILP, Plaintiff v. John J. CONTINO and Thomas W. Corbett, Jr., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

629 F.Supp.2d 449

Gene STILP, Plaintiff v. John J. CONTINO and Thomas W. Corbett, Jr., Defendants.

Civil Action No. 1:09-CV-0524.

United States District Court, M.D. Pennsylvania.

June 29, 2009.

Aaron D. Martin, Hoppe & Martin LLP, South, Kennett Square, PA, for Plaintiff.

MEMORANDUM

CHRISTOPHER C. CONNER, District Judge.

Presently before the court is a motion (Doc. 2) for preliminary injunction filed by plaintiff Gene Stilp ("Stilp"). Stilp seeks to enjoin enforcement of § 1108(k) of the Public Official and Employee Ethics Act, 65 PA. CONS.STAT. § 1108(k), which prohibits disclosure by any person of information relating to an ethics complaint, preliminary inquiry, investigation, hearing, or petition for reconsideration that is pending before the Pennsylvania State Ethics Commission. The court held an evidentiary hearing on the motion on April 1, 2009,¹ after which the parties submitted additional briefing, (see Docs. 18, 20). For the reasons that follow, the motion for preliminary injunction will be granted in part and denied in part.²

I. Factual Background

The Pennsylvania State Ethics Commission ("Commission") is an independent state agency responsible for administration and enforcement of the Public Official and Employee Ethics Act ("Act"). (Doc. 16 at 30.) The Act regulates financial conflicts of interest among public officials at the state and local level. (Id.) Defendant John Contino ("Contino") is the Commission's executive director. (Id. at 29.) He oversees the Commission's enforcement division, which investigates Act violations and ensures that public officials comply with the Act's various financial disclosure requirements. (Id. at 31-33.) Defendant Thomas Corbett, Jr., is Attorney General of the Commonwealth of Pennsylvania. The Attorney General's office is ultimately responsible for criminal enforcement of the Act.³ (Id. at 80-81.)

A. Commission Investigations & Section 1108(k)

In 1978, the Pennsylvania state legislature created the Commission to police financial conflicts of interest that invariably arise to seduce those officials with whom the public places its trust. (See id. at 30); see also 65 PA. CONS.STAT. § 1101.1 ("The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust."). Ethical misconduct investigations are initiated by one of two methods under the Act: (1) a private citizen may file a signed complaint with the Commission under penalty of perjury, or (2) the Commission may commence an investigation upon its own motion. (See Doc. 16 at 33); see also § 1108(a). There are three distinct phases to a Commission investigation. In the first, the Commission preliminarily reviews the complaint to ensure that allegations contained therein are sufficiently detailed to warrant further inquiry.⁴ (See Doc. 16 at 34.) Complaints that fail to meet the threshold requirements are summarily dismissed. (See id. at 62-63.) Satisfaction of the threshold criteria requires the Commission to open a "probable cause period," during which it attempts to gather evidence concerning the allegations. (Id. at 36); see also § 1108(a). If the Commission uncovers probable cause of an ethics violation, a full investigation follows. (Doc. 16 at 36.); see also § 1108(c). In 2008, the Commission received 470 complaints; over 400 were summarily dismissed, seventy-five proceeded to a probable cause period, and the Commission initiated a full investigation in only forty cases. (Doc. 16 at 63.) As Contino explained, "by far the majority of complaints that come in the door do not even meet the threshold requirements." (Id.)

Strict confidentiality provisions govern all stages of the Commission's investigative process. Section 1108(k) of the Act states that "no person shall disclose or acknowledge to any other person any information relating to a complaint, preliminary investigation, hearing or petition for reconsideration which is before the commission." This provision prohibits, inter alia, disclosure of the fact that an ethics complaint has been or will be filed with the Commission.⁵,⁶ (Doc. 16 at 45, 64, 67-69; see also Pl. Hr'g Ex. 4.) The Act's prohibition on disclosure remains in effect during the pendency of the Commission's investigation. § 1108(k). According to Contino, however, § 1108(k) does not bar a complainant from publicizing the substantive allegations underlying his or her complaint as long as there is no reference to initiation of an ethics inquiry. (See Doc. 16 at 45.)

Eight exceptions to the confidentiality provision are set forth in the Act, permitting disclosure when: (1) the Commission has issued a final order, (2) the Commission conducts a public hearing on the matter, (3) a complainant is seeking the advice of counsel, (4) a complainant is appealing from a Commission order, (5) the purpose of the disclosure is to communicate with Commission staff in furtherance of an investigation, (6) a complainant is consulting with or responding to a request from law enforcement officials, (7) a complainant is testifying under oath before a governmental body, and (8) the subject of the complaint discloses the information. § 1108(k)(1)-(8).⁷ Violation of § 1108(k) is a crime punishable by a fine of not more than $1000 and a period of imprisonment no greater than one year. § 1109(e).

B. Stilp's Conduct

Stilp is a private citizen who describes himself as "one of the leading critics of the [Pennsylvania] state legislature." (Doc. 16 at 7.) For the past several years, he has organized demonstrations protesting what he characterizes as government waste, and has initiated multiple lawsuits challenging legislative activities.⁸ (Id. at 5-8.) In November 2007, Stilp became aware of allegations that Representative William DeWeese's⁹ office was improperly using state tax revenues to fund political polling projects. (See id. at 9.) Concluding that these allegations were "something the ethics commission should investigate," Stilp completed a form complaint, wherein he demanded an inquiry into the purported misconduct.¹⁰ (See id. at 9-12; Pl. Hr'g Ex 1.) Before he filed the complaint, however, Stilp issued a press release headlined, "STATE ETHICS COMMISSION WILL BE ASKED TO INVESTIGATE POLITICAL NATURE OF $290,000 POLLING CONTRACT." (See Doc. 16 at 12-14; Pl. Hr'g Ex. 1.) A copy of Stilp's signed, notarized, but unfiled complaint was attached to the press release. (See Pl. Hr'g Ex. 1.) Hours after issuing the release, Stilp formally filed his complaint with the Commission. (Doc. 16 at 14.)

The Commission sent a letter to Stilp the following day, indicating that the complaint "failed to provide sufficient specific information to make a determination as to whether or not this matter should be pursued as an investigation." (Pl. Hr'g Ex. 2.) The letter further explained that the complaint "failed to identify a specific individual about whom [Stilp] was complaining." (Id.) As a result, the Commission summarily dismissed Stilp's complaint approximately twenty-four hours after it was filed. (Id.)

On January 31, 2008, Stilp received a letter from Contino on behalf of the Commission. (Pl. Hr'g Ex. 3.) This correspondence stated that the Commission was commencing an investigation into Stilp's disclosure to the media that he intended to file the November 2007 complaint against Representative DeWeese.¹¹ (Id.) The letter described criminal penalties applicable to Stilp's conduct, indicated that the Commission may issue subpoenas to compel witness attendance and document production, and advised that representation by counsel was appropriate. (See id.) The Commission thereafter began its investigation, which continued through October 2008. (See id.; see also Doc. 16 at 19-21.)

On October 16, 2008, Stilp entered into a consent decree with the Commission, under the terms of which he admitted to violating § 1108(k) of the Act and acceded to pay a $500 fine. (Pl. Hr'g Ex. 5.) The Commission agreed to forego additional criminal sanctions. (See id.) In its final order concluding the investigation, the Commission explained:

"[Stilp] believed that distributing the complaint prior to [its] filing . . . would not breach the confidentiality provisions of the Ethics Act. However, we have held that the prohibition of Section 1108(k) of the Ethics Act encompasses a complaint that will be pending before this Commission. . . . Accordingly, we hold that a violation of Section 1108(k) of the Ethics Act occurred when [Stilp] disclosed or acknowledged to other persons information relating to a complaint he was filing or filed against a public official with the Commission."

(Id. (emphasis in original)). Stilp complied with the terms of the decree, but has expressed the desire to file one or more complaints with the Commission in the future, and to disclose publicly his filing thereof. (See Doc. 16 at 25-27.) Stilp explained that he is wary of pursuing this course of conduct, however, "because of the ethics commission reaction if I was to publicize [the complaint] before I filed." (Id. at 26.)

C. Procedural History

On March 20, 2009, Stilp commenced the instant action by filing a complaint and moving for a preliminary injunction. (See Docs. 1, 2.) Stilp claims that § 1108(k) of the Act violates the First Amendment on its face and as applied to the above-described circumstances. The court heard testimony and received evidence on the motion for preliminary injunction on April 1, 2009, (see Doc. 16), and supplemental briefing followed, (see Docs. 18, 20). The motion has now been fully briefed and is ripe for disposition.

II. Discussion

The requirements for preliminary injunctive relief are well settled. The moving party must establish that: (1) there is a reasonable probability of success on the merits, (2) irreparable injury will result without injunctive relief, (3) granting the...