HomeMy WebLinkAbout1560 Carini
In Re: Fred Carini, : File Docket: 08-051
Respondent : X-ref: Order No. 1560
: Date Decided: 6/22/10
: Date Mailed: 7/9/10
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Raquel K. Bergen
Nicholas A. Colafella
Mark Volk
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted
an investigation regarding possible violation(s) of the Public Official and Employee Ethics
Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., by the above-named Respondent. At the
commencement of its investigation, the Investigative Division served upon Respondent
written notice of the specific allegations. Upon completion of its investigation, the
Investigative Division issued and served upon Respondent a Findings Report identified as
an “Investigative Complaint.” An Answer was filed and a hearing was requested. A
Stipulation of Findings and a Consent Agreement waiving an evidentiary hearing were
subsequently submitted by the parties to the Commission for consideration. The
Stipulated Findings are set forth as the Findings in this Order. The Consent Agreement
has been approved.
This adjudication of the State Ethics Commission is issued under the Ethics Act and
will be made available as a public document thirty days after the mailing date noted above.
However, reconsideration may be requested. Any reconsideration request must be
received at this Commission within thirty days of the mailing date and must include a
detailed explanation of the reasons as to why reconsideration should be granted in
conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the
finality of this adjudication but will defer its public release pending action on the request by
the Commission.
The files in this case will remain confidential in accordance with the Ethics Act.
Carini, 08-051
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I.ALLEGATIONS:
That Fred Carini, a public official/public employee in his capacity as a Member of
the Council of Carnegie Borough, Allegheny County, violated Sections 1103(a), 1103(f),
1104(a), and 1104(d) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a),
1103(f), 1104(a), and 1104(d), when he used the authority of his public position for a
private pecuniary benefit including, but not limited to, using Borough employees,
equipment, and supplies for personal matters; contracting with the Borough without an
open and public process to repair/service Borough computers; when he failed to reimburse
the Borough for health insurance premiums; and when he failed to file Statements of
Financial Interests for the 2006, 2007, and 2008 calendar years.
II.FINDINGS:
1.Frederick Carini has served as a Council Member for Carnegie Borough, Allegheny
County, since January 2, 2006.
a. Carini served as Vice-President from August 2007 until November 2007.
b. Carini assumed the position of President in November 2007 and served in
that capacity until January 2008.
c. Carnegie Borough’s population as of the 2000 census is 8,389.
2. Carnegie Borough is governed by a six Member Council and Mayor.
a. Council holds workshop meetings on the first Monday of each month.
b. Council holds legislative meetings on the second Monday of each month.
c. Council holds special meetings as necessary.
3. Council Members are compensated $150.00 monthly ($1,800.00 annually) for their
service.
a. Section 1101 of the Borough Code provides that boroughs with a population
of 5,000 or more, but less than 10,000, may set compensation up to a
maximum of $2,500.00 for council members.
b. Attendance at the monthly board meeting is not required to receive the
monthly Council stipend.
4. All members of Council participate in voting on all motions made.
a. The Mayor votes only in the case of a tie.
5. Council’s voting procedures on matters involving a financial expenditure or a
contractual relationship occur in roll call fashion.
a. All other votes taken occur in an aye/nay manner.
b. All objections and abstentions are noted in the minutes regardless of the
method of vote.
6. Council receives bill lists prior to monthly meetings in meeting packets.
a. Bill lists represent invoices not yet paid by the Borough, which are awaiting
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Council action.
7. Council Members are each assigned a Chairperson position, by the Council
President, to oversee a Borough department or community interest.
a. Carini was appointed Chairman of the Borough Department of Public Works
(DPW) in January 2006.
1. Carini oversaw the DPW until January 2008.
b. Carini requested his assignment to the DPW Chairman position.
8. The DPW, which consists of nine employees, completes various projects
throughout the Borough including, but not limited to, maintaining Borough property
by way of performing landscaping/lawn maintenance services (i.e., grass cutting,
weed trimming, etc.).
a. The Borough purchases various pieces of lawn care equipment for use by
the DPW.
9. The lawn care equipment as well as other DPW equipment is stored in a DPW
building located approximately one half mile from the Borough building.
a. The physical address of the DPW building is 1 Glass Street, Carnegie, PA
15106.
b. The DPW received a newly constructed building, completed in 2008, to
house equipment and supplies.
1. Only DPW personnel have access to the new DPW building.
10. Carnegie Borough utilizes Lawn Boy commercial grade lawnmowers with bag
attachments, valued at $769.99 for lawn/property maintenance purposes.
a. Invoice No. 83108 from GIL-CON Tool Company notes two Model No. 22260
Lawn Boy lawn mowers sold to Carnegie Borough on April 14, 2005, for
$699.99 each.
b. The same invoice notes that rear bag kits sold for $70.00 each.
c. The Borough has utilized Lawn Boy commercial grade lawnmowers since at
least 2005.
11. Carnegie Borough utilizes Kawasaki commercial grade weed eaters, valued at
$299.99.
a. Invoice No. 7F482F46 dated June 22, 2008, from Lesco, notes a Kawasaki
KGT27B String Trimmer sold to Carnegie Borough on June 9, 2008, for
$299.99.
b. The Borough was unable to locate an invoice noting the purchase of a
trimmer prior to 2008.
1. The trimmer invoice provided is comparable in model and pricing to
those utilized in 2006.
12. Carini, as the chairperson of the DPW department and a member of Council, had
Carini, 08-051
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regular contact with DPW Working Foreman Keith Hatcher and other DPW
employees.
a. Contact between Carini and members of the DPW occurred both face to face
and via the telephone.
13. Shortly after taking office and being named DPW Chairperson, Carini directed DPW
employees to perform services of a personal nature for him.
a. DPW employees feared Carini as he routinely threatened to furlough the
DPW employees with the least seniority.
14. Beginning in or about the spring of 2006, Carini directed Hatcher or other DPW
employees to deliver Borough equipment to Carini’s residence for personal use.
a. Carini resides in a rental apartment at [address redacted].
b. Equipment delivered to Carini’s house included lawnmowers and weed
eaters.
c. Carini’s residence is located approximately 0.7 miles from the DPW building.
d. Roundtrip drive time from the DPW building to Carini’s residence is
approximately five minutes.
15. Carini is responsible for lawn maintenance around the structure which houses his
and two other apartments.
a. The property owners offered Carini incentives for assisting with maintenance
of the property in exchange for Carini maintaining the lawn and the front
porch of the structure.
1. Carini’s rent was reduced from $600.00 to $570.00 monthly and
Carini was provided with a second garage at no cost.
aa. The monthly rental fee for the second garage bay was $30.00.
1. The agreement was documented in the most recent
lease between the owner and Carini.
16. Delivery of the Borough equipment to Carini’s property occurred during normal
working hours by DPW employees.
a. Delivery was accomplished utilizing Borough vehicles.
17. Carini would contact Hatcher upon completion of his use of the equipment to
arrange the return of the equipment to the Borough.
a. Carini frequently possessed the Borough equipment for multiple consecutive
days.
b. At times, DPW employees were forced to visit Carini’s home in order to
retrieve the equipment to complete their daily tasks.
18. DPW employees regularly complied with Carini’s demands due to his position on
Borough Council as well as his reputation in the community.
Carini, 08-051
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a. Borough employees were fearful of losing their employment and other
consequences which may be associated with defying Carini’s demands.
b. Carini regularly bragged to DPW employees about physical altercations in
which he engaged.
19. Borough Manager Stephen Vincenti and then Council President Robert Kollar
initially became aware of Carini’s personal use of DPW employees and equipment
on May 27, 2008.
a. DPW workers Hatcher and Richard Ruffennach were discovered at Carini’s
residence dropping off Borough lawn care equipment.
1. Vincenti and Kollar were performing a check on Borough roads when
they observed three employees at Carini’s residence.
20. Vincenti, Kollar and then Vice-President Michael Sarsfield immediately obtained
statements from Hatcher and Ruffennach regarding Carini’s usage of Borough
equipment, employees, and supplies.
a. Hatcher verified during his statement that Carini had directed him to have
DPW employees deliver and retrieve Borough equipment to or from his
residence on multiple occasions since his election to Council in 2006.
b. Carini also directed Hatcher to transport a second lawnmower to his
residence because the initial lawnmower borrowed from the Borough was
malfunctioning.
1. Carini did not attempt to repair the lawnmower; instead he called
DPW employees for a replacement.
c. Vincenti, Kollar, and Sarsfield subsequently obtained statements regarding
Carini’s usage of Borough equipment, employees, and supplies from all
other DPW employees.
21. Vincenti, Kollar, and Sarsfield made the decision to contact Borough Police
regarding the Borough equipment at Carini’s home.
22. On May 27, 2008, Carnegie Police Sergeant Jeffrey Kennedy was dispatched to
Carini’s residence at [address redacted]. Carnegie Borough Police Report No.
2008-04802 documented Sergeant Kennedy’s actions.
a. Carnegie Police Department Report No. 2008-04802 documents a call
dispatched by “Chief’s Orders” at 1:30 p.m. to “retrieve a Lawn Boy Lawn
Mower that belongs to the Borough.”
b. Kennedy was dispatched to escort DPW employee Jim Harty to Carini’s
residence in order to “keep the peace” while Harty obtained the lawn mower.
23. Carini claimed to Sgt. Kennedy several times during Kennedy’s May 27, 2008, visit
that he had possession of the lawnmower in order to repair the choke.
a. The commercial grade Lawn Boy mowers utilized by the Borough do not
have a choke.
b. Borough equipment is regularly serviced by Three Rivers Equipment
Company, located at 118 Lenzner Court, Sewickley, PA 15143; (412) 741-
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3013.
24. Between 2006 and May 2008, Carini personally directed or directed through
Hatcher at least seven Borough employees to deliver or retrieve lawn care
equipment to or from his residence on multiple occasions resulting in time lost to
the Borough.
a. Time loss included time utilized by employees to travel to or from their
specific work location, to or from the DPW building, and to or from Carini’s
residence.
b. Carini performed the actual yard work associated with the use of the
equipment.
c. The lawnmowers and weed eaters all were returned to the Borough after
being used by Carini.
25. Borough employees utilized Borough trucks to deliver and pick up Borough
equipment at Carini’s direction.
a. Carini directed employees to deliver and pick up the equipment even though
he owns a truck capable of transporting the lawn equipment.
b. Carini required DPW employees to bring him Borough lawn care equipment
at least 33 times.
26. Carini utilized the Borough mower and weed eater on at least (16) occasions
between 2006 and May 2008.
27. Carini realized a financial gain when he used his position as Chairman of the DPW
and Borough employees and equipment for the care of his property, and when he
realized a rent reduction as a result of his use of Borough equipment.
28. The DPW employees provide pest control services in the Borough.
a. DPW pest control is limited to public property unless public safety is a
concern.
b. DPW pest control responds to insect, weed, and rodent problems that can
affect both public and private property.
29. DPW employees receive specialized training to assist in their ability to perform a
wide variety of tasks for the Borough.
a. One of the specialized services certain DPW employees are trained to
provide is pest control.
1. DPW employees Butera and Huehn were certified in pest control
while employed at the Borough.
30. In or about August 2007, Carini directed DPW employees Butera and Huehn to
exterminate bees at a residence located outside of the municipal borders of the
Borough.
a. Carini instructed Butera and Huehn to report to a location in neighboring
South Fayette Township belonging to Carini’s then girlfriend.
Carini, 08-051
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b. South Fayette Township is not located within the municipal borders of
Carnegie Borough.
c. South Fayette Township residents do not utilize Carnegie Borough public
services.
31. Carini directed the extermination take place when Butera was receiving workman’s
compensation while recovering from surgery.
a. Butera reported to the Borough building as directed to meet Huehn and to
retrieve the required Borough supplies and equipment necessary to
complete the extermination.
1. Butera followed Carini’s directives despite his medical condition out of
fear that failing to comply would result in the loss of his employment.
b. Carini instructed Butera and Huehn to complete the extermination despite
Butera’s medical status with the Borough.
32. Butera utilized his personal vehicle to complete the extermination request, driving a
marked DPW truck outside the municipal borders to avoid detection.
a. Butera’s personal vehicle was driven approximately twenty-four miles in
relation to Carini’s extermination directive.
33. Huehn was on Borough time in both instances that he completed the bee
extermination.
a. The extermination was completed in approximately 1.5 hours on each
occasion.
34. Carini realized a private pecuniary benefit when he directed Borough employees to
use Borough supplies and equipment for the care of his girlfriend’s property.
THE FOLLOWING FINDINGS RELATE TO CARINI CONTRACTING WITH THE
BOROUGH TO REPAIR/SERVICE BOROUGH COMPUTERS WITHOUT AN OPEN AND
PUBLIC PROCESS.
35. Carnegie Borough Administrative and Public Safety personnel utilize desktop
personal computers in the normal course of business.
a. Carnegie Borough does not employ an information technology specialist for
computer related services.
36. Carini is the sole owner/operator of a consulting company, Professional Touch Too,
514 Cubbage Street, Carnegie, PA 15106; (412) 429-5336.
a. Professional Touch Too has been in business at least since January 2006.
b. Professional Touch Too is not incorporated in the Commonwealth of
Pennsylvania.
37. After Carini’s election in 2005, but prior to taking office in January 2006, Carini
provided the Borough with minor computer related services.
a. Carini provided the services to the Borough at no cost.
Carini, 08-051
Page 8
b. Upon taking office, Carini wanted compensated for any computer services he
provided.
38. Carini approached Council President Kollar after taking office and requested that
the Borough utilize Professional Touch Too for maintenance and servicing of
Borough computers.
a. Prior to Carini’s solicitation, Borough computers were serviced on an as-
needed basis by various contractors.
b. The utilization of Professional Touch Too for service and maintenance of
Borough computers was presented at the January 9, 2006, Council meeting.
39. Minutes of the January 9, 2006, Borough Council meeting confirm the following
regarding the award of the contract to Carini’s company:
MOTION BY Councilman Snyder, SECOND BY Councilman Kollar to
issue at his request regarding Mr. Carini’s working on Borough
Computers. Councilman Kollar explained that Councilman Carini has
been working on the Borough computers to bring them up to speed.
Council has agreed that as long as Mr. Carini keeps a detailed log of
work done, he would be compensated for that work. Councilwoman
Freshwater added that Mr. Carini has agreed to $50.00 per job for
computer work. A roll call vote was taken: Councilman Snyder – yes;
Councilman Carini – abstain; Councilwoman Freshwater – yes;
Councilwoman Kelly – yes; Councilman Kollar – yes; MOTION
CARRIED.
40. The Borough did not advertise for bids for a computer service contractor.
a. No other contractors were solicited for quotes.
41. Carini contracted with the Borough even though Section 46404 of the Borough
Code prohibits a Council member from having a personal interest in expenditure of
Borough funds of more than $1,000.00 in any calendar year.
42. Carini was contacted by Borough Manager Vincenti when computer repairs or
servicing was required.
a. Carini submitted bills to the Borough for services provided.
43. Carini submitted invoices totaling $1,674.99 between January 2006 and October
2006 for maintenance work claimed to have been completed on Borough
computers.
a. Carini invoiced services performed on individual computers as separate
“jobs.”
44. Carini charged the Borough for software programs, on a minimum of two occasions,
but did not supply the actual materials purchased (i.e., disks, etc.) to the Borough.
a. On March 27, 2006, the Borough was charged $79.99 for Norton Internet
Security software.
b. On September 30, 2006, the Borough was charged $110.00 for Quicken
software.
Carini, 08-051
Page 9
45. Beginning in August 2006, Carini increased his charges to the Borough to perform
services from the rate of $50.00 per job approved by Council, to $100.00 per job.
a. Council took no action increasing the rate from $50.00 to $100.00.
46. The following reflects Carini’s increase from $50.00 to $100.00 for services
beginning in August 2006:
Date Service Charge Excess
08/31/06 Repair lien webpage $100.00 $50.00
08/31/06 Repair internet – Install explorer $100.00 $50.00
08/31/06 Install office – Ellen $125.00 $75.00
08/31/06 Network 2 computers $140.00 $90.00
09/30/06 Install Quicken - Ellen $55.00 $5.00
09/30/06 Quicken $110.00 $60.00
09/30/06 General internet problem – Ellen $65.00 $15.00
Total $345.00
47. Carini routinely participated in voting to approve monthly bills totaling $1,674.99
which included payments to Professional Touch Too.
48. The Concerned Citizens of Carnegie, a local group of citizens, became aware of
Carini’s contract with Carnegie Borough and sent correspondence to Council and
other Borough officials questioning Carini’s contract and his overcharging the
Borough for computer services.
a. Pursuant to the public inquiry and concerns, Carnegie Borough Council
Solicitor Christina E. McKaveney-Malkin met with Carini regarding the issue.
b. As a result of the meeting between McKaveney-Malkin and Carini, Carini
agreed to refund the Borough in the amount of $985.00, in $100.00 monthly
installments, to begin in March 2007.
49. McKaveney-Malkin sent Carini correspondence dated February 12, 2007, verifying
terms of the verbal agreement reached.
a. The correspondence indicated that the State Ethics Act prohibits a
Councilmember from obtaining payments in excess of $500.00 for services
outside of their council salary.
b. Carini’s projected $985.00 payment was to make his contract $500.00, after
software costs were removed from invoice totals.
1. Total computer service invoices: $1,674.99
Total software expenses: - $189.99
State Ethics Act contractual limit: - $500.00
Amount to be reimbursed [to] the Borough: = $985.00
50. Between the dates April 5, 2007, and May 2, 2008, Carini made eight payments to
the Borough totaling $448.95, which were applied to amounts owed to the Borough
by Carini for amounts billed in excess of the $500 for computer work.
51. Carini realized a financial gain of $1,036.05 by lobbying for and accepting a no bid
Carini, 08-051
Page 10
contract to service Borough computers, overcharging the Borough for services
rendered, and voting to approve bill lists on which payment to his company,
Professional Touch Too, [was included].
THE FOLLOWING FINDINGS RELATE TO CARINI UTILIZING BOROUGH HEALTH
INSURANCE AND REFUSING TO FULLY REIMBURSE THE BOROUGH FOR THE
SERVICE PROVIDED TO HIM.
52. The Borough utilizes Municipal Employers Insurance Trust (MEIT) to facilitate
health care coverage through insurance provider Highmark Blue Cross Blue Shield,
for all employees and interested Council Members.
a. All Borough employees are represented by unions and have their insurance
premiums negotiated in their respective collective bargaining agreements.
1. Borough employees pay no insurance premium.
b. Borough policy groups consist of the Police policy group and all other
Borough employees.
53. Prior to the October 8, 2007, Borough meeting, Council Members were not specified
as eligible recipients of Borough provided health insurance.
a. Insurance benefits provided by the Borough were made available to full-time
permanent employees only.
54. Carini had insurance coverage from Keystone Health Plan West of Highmark Blue
Cross Blue Shield by way of his wife’s employer until May 31, 2007, when he and
his wife separated.
a. After May 31, 2007, Carini had no health insurance coverage.
55. Sometime prior to September 19, 2007, Carini approached Mary Anne Vittore and
directed her to submit the application.
a. Vittore is the Borough Administrative Secretary.
b. It is not customary for Council Members to approach the Administrative
Secretary to complete such a task as such assignments are the
responsibility of Borough Manager Vincenti.
1. Vittore informed Carini that such requests are completed by the
Borough Manager, who was on vacation.
2. Carini directed her to call Vincenti.
c. Vittore subsequently contacted Vincenti by telephone in Carini’s presence.
1. Initially, Vincenti advised Vittore that he would address the issue
upon his return from vacation.
d. Carini insisted that Vittore submit the application in order to have coverage
effective immediately.
1. Vincenti overheard Carini’s demand of Vittore to submit the
application and authorized her to file the application.
Carini, 08-051
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56. Carini’s application for health insurance coverage through the Borough was
submitted on September 19, 2007.
a. On September 19, 2007, Mary Ann Vittore submitted the application on
behalf of Carini to the Borough’s health insurance provider, MEIT.
b. Carini’s application for coverage was denied by MEIT for the following
reason: “The coverage must be added the first of the month following the
date the coverage was lost. He will have to wait until open enrollment, which
is January through March 2008, to be added to the coverage.”
57. At the subsequent Borough Council meeting held on October 8, 2007, Carini
initiated approval by Council to include Council Members in the Borough health
insurance plan.
a. Minutes of the October 8, 2007, Council meeting confirm the following:
MOTION by Mr. Carini, SECOND by Mr. Kollar to allow Council
members and the Mayor to participate in existing Borough health
insurance plans provided that the individual shall pay 100% of the
associated cost to the Borough for such plan. The payment for each
th
month of insurance shall be made by check by the 15 day of each
previous month. Roll call vote: unanimous. MOTION CARRIED.
b. Carini proposed Council Member participation in the Borough health care
plan because he had no other insurance coverage and had already been
denied by MEIT until the open enrollment beginning in January 2008.
58. Carini initially attempted to have his insurance coverage provided at Borough
expense because of his status as a Council Member.
a. Carini claimed a “loophole” allowed him Borough insurance coverage as an
employee at no charge to him.
b. No such “loophole” existed.
59. Carini’s Borough health insurance coverage was effective October 1, 2007, as a
result of his actions in getting Council to approve Member inclusion in the plan.
a. Carini canceled his coverage on November 30, 2007, effective December 1,
2007.
b. Carini received coverage for the months of: October and November.
60. Carini’s coverage was mistakenly classified in the police employee group at a rate
of $398.40 monthly rather than the Borough employee group at a rate of $378.33.
a. The Borough was charged $398.40 for three months in 2007 and $510.57 for
one month in 2008 for Carini’s coverage, totaling $1,705.77.
1. The Borough was erroneously charged $908.97 for Carini’s coverage,
but was later credited in that amount by Highmark. ($398.40 in
December 2007 + $510.57 in January 2008 = $908.97)
b. Highmark adjusted Carini’s premium to properly reflect his status with the
Borough and recharged the Borough in January at a rate of $378.33 for his
two months of coverage, totaling $756.66.
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Page 12
61. Charges and credits made to the Borough for Carini’s coverage and subsequent
payments made by the Borough for Carini’s coverage totaled $756.66 for October
and November 2007.
62. Carini received health care benefits in October and November 2007 at a cost of
$756.66, but failed to make payments to the Borough as required by the motion
approved by Council on October 8, 2007.
a. Carini made payments totaling $535.14 to the Borough for health insurance
premiums.
63. Carini has not paid Carnegie Borough the outstanding balance of $221.52 for
health care benefits received in 2007.
a. Carini has made no payment to the Borough regarding health care benefits
received since May 2, 2008.
64. Carini realized a financial gain of $221.52 when he utilized his public office to
receive medical insurance from the Borough and failed to pay his premium in full.
65. Carini, in his capacity as a Carnegie Borough Councilman, used the authority of his
public position for his private pecuniary benefit by:
a. Utilizing Borough employees, supplies and equipment to care for his private
property;
b. Lobbying for and securing a no bid, unadvertised contract for computer
repair only to subsequently overcharge the Borough and retain software
programs; and
c. Obtaining health insurance coverage without fully reimbursing the Borough.
THE FOLLOWING FINDINGS RELATE TO CARINI FAILING TO FILE STATEMENTS OF
FINANCIAL INTERESTS FOR THE 2006, 2007, AND 2008 CALENDAR YEARS.
st
66. Carini is required to file Statements of Financial Interests by May 1 annually in his
position as a Carnegie Borough Councilman.
67. Statements of Financial Interests for Carnegie Borough public officials are
distributed by the Borough Manager.
a. Forms were annually distributed to Carini for [completion].
b. Completed forms are returned to the Borough Manager and maintained in
the Borough building.
68. A Statement of Financial Interests compliance review for Carnegie Borough was
conducted by the Investigative Division on August 4, 2008, and confirmed the
following regarding Statements of Financial Interests on file for Carini for calendar
years 2005 to 2007:
Calendar Year Date Filed
2005 None Filed
2006 None Filed
2007 None Filed
Carini, 08-051
Page 13
a. No Statements of Financial Interests for the 2005, 2006, or 2007 calendar
years were on file for Carini with Carnegie Borough.
b. As of August 12, 2009, the Borough of Carnegie had no calendar year 2008
Statement of Financial Interests on file from Carini.
1. A Statement of Financial Interests for calendar year 2008 was
required to be filed by May 1, 2009.
Carini, 08-051
Page 14
III.DISCUSSION:
As a Council Member for Carnegie Borough (“Borough”), Allegheny County, since
January 2, 2006, Respondent Fred Carini (hereinafter also referred to as “Respondent,”
“Respondent Carini,” and “Carini”) has been a public official subject to the provisions of the
Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq.
The allegations are that Respondent Carini violated Sections 1103(a), 1103(f),
1104(a), and 1104(d) of the Ethics Act when he: (1) used the authority of his public
position for a private pecuniary benefit including, but not limited to, using Borough
employees, equipment, and supplies for personal matters; (2) contracted with the Borough
without an open and public process to repair/service Borough computers; (3) failed to
reimburse the Borough for health insurance premiums; and (4) failed to file Statements of
Financial Interests (“SFIs”) for the 2006, 2007, and 2008 calendar years.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a)Conflict of interest.—
No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
The term "conflict of interest" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest."
Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
family is associated. The term does not include an action
having a de minimis economic impact or which affects to the
same degree a class consisting of the general public or a
subclass consisting of an industry, occupation or other group
which includes the public official or public employee, a
member of his immediate family or a business with which he or
a member of his immediate family is associated.
65 Pa.C.S. § 1102.
Section 1103(a) of the Ethics Act prohibits a public official/public employee from
using the authority of public office/employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public official/public
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
Section 1103(f) of the Ethics Act imposes certain restrictions as to contracting:
§ 1103. Restricted activities
(f)Contract.—
No public official or public employee or
Carini, 08-051
Page 15
his spouse or child or any business in which the person or his
spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with which
the public official or public employee is associated or any
subcontract valued at $500 or more with any person who has
been awarded a contract with the governmental body with
which the public official or public employee is associated,
unless the contract has been awarded through an open and
public process, including prior public notice and subsequent
public disclosure of all proposals considered and contracts
awarded. In such a case, the public official or public employee
shall not have any supervisory or overall responsibility for the
implementation or administration of the contract. Any contract
or subcontract made in violation of this subsection shall be
voidable by a court of competent jurisdiction if the suit is
commenced within 90 days of the making of the contract or
subcontract.
65 Pa.C.S. § 1103(f).
Section 1103(f) of the Ethics Act provides in part that no public official/public
employee or his spouse or child or business with which the public official/public employee
or his spouse or child is associated may enter into a contract with his governmental body
valued at five hundred dollars or more or any subcontract valued at five hundred dollars or
more with any person who has been awarded a contract with the governmental body with
which the public official/public employee is associated unless the contract is awarded
through an open and public process including prior public notice and subsequent public
disclosure of all proposals considered and contracts awarded.
Section 1104(a) of the Ethics Act provides that each public official/public employee
must file a Statement of Financial Interests for the preceding calendar year, each year that
he holds the position and the year after he leaves it.
Section 1104(d) of the Ethics Act provides that no public official shall be allowed to
take the oath of office, enter or continue upon his duties, or receive compensation from
public funds unless he has filed a Statement of Financial Interests as required by the
Ethics Act.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are set forth above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
Background:
Carini has served as a Borough Council Member since January 2, 2006. Carini
served as Vice-President of Borough Council from August 2007 until November 2007.
Carini served as President of Borough Council from November 2007 until January 2008.
In January 2006, at Carini’s request, Carini was appointed by the then Council
President to serve as the Chairman overseeing the Borough’s Department of Public Works
(“DPW”). Shortly after taking office and being named DPW Chairman, Carini directed
DPW employees to perform services of a personal nature for him. Carini routinely
threatened to furlough the DPW employees with the least seniority. DPW employees
feared Carini and complied with his demands.
As set forth more fully below, Carini, in his capacity as a Borough Councilman, used
the authority of his public position for his private pecuniary benefit by: (1) utilizing Borough
Carini, 08-051
Page 16
employees, supplies and equipment for personal purposes; (2) advocating for and
securing a no bid, unadvertised contract for computer service/repairs and subsequently
overcharging the Borough and retaining software programs for which the Borough paid;
and (3) obtaining health insurance coverage through the Borough without fully reimbursing
the Borough.
Carini’s use of Borough employees to transport Borough equipment for private lawn care:
Beginning in or about the spring of 2006, Carini directed DPW Working Foreman
Keith Hatcher (“Hatcher”) or other DPW employees to deliver Borough equipment
including lawn mowers and weed eaters to the rental property where Carini resides
(“Rental Property”), for his personal use. Carini has an agreement with his landlords
whereby Carini performs lawn maintenance at the Rental Property in exchange for a $30
per month reduction in rent and free use of a second garage valued at an additional
$30.00 per month.
Between 2006 and May 2008, Carini required DPW employees to bring Borough
lawn care equipment to him at least 33 times. Upon completion of his use of the
equipment, Carini would contact Hatcher to arrange the return of the equipment to the
Borough. Borough employees utilized Borough time and Borough trucks to transport
Borough equipment for Carini’s use at the Rental Property. Carini frequently possessed
the Borough equipment for multiple consecutive days. At times, DPW employees were
forced to go to the Rental Property in order to retrieve the equipment to complete their
daily tasks.
On May 27, 2008, the Borough Manager and then Council President became aware
of Carini’s personal use of DPW employees and equipment. Statements were obtained
from all DPW employees regarding Carini’s use of Borough equipment, employees, and
supplies.
On May 27, 2008, Borough Police Sergeant Jeffrey Kennedy was dispatched to
escort a DPW employee to the Rental Property while the employee obtained a lawn mower
belonging to the Borough. Carini claimed to Sergeant Kennedy that he had possession of
the lawn mower in order to repair the choke. The lawn mower was not equipped with a
choke.
The parties have stipulated that Carini realized a financial gain when he used his
position as Chairman of the DPW and Borough employees and equipment for the care of
the Rental Property, and when he realized a rent reduction as a result of his use of
Borough equipment.
Carini’s use of Borough employees to perform private pest control services:
DPW employees provide pest control services in the Borough. DPW pest control is
limited to public property unless public safety is a concern.
In or about August 2007, Carini directed DPW employees Butera and Huehn to
exterminate bees at a residence located in South Fayette Township, outside of the
municipal borders of the Borough. South Fayette Township residents do not utilize
Borough public services. The residence was owned by Carini’s then girlfriend.
Carini directed Butera and Huehn to complete the extermination at a time when
Butera was receiving workman’s compensation while recovering from surgery. Butera
reported to the Borough building as directed to meet Huehn and to retrieve the required
Borough supplies and equipment necessary to complete the extermination. Butera
followed Carini’s directives despite his medical condition, out of fear that failing to comply
would result in the loss of his employment. Huehn was on Borough time in both instances
Carini, 08-051
Page 17
that he completed the bee extermination. The extermination was completed in
approximately 1.5 hours on each occasion.
The parties have stipulated that Carini realized a private pecuniary benefit when he
directed Borough employees to use Borough supplies and equipment for the care of his
girlfriend’s property.
Carini’s contracting with the Borough without an open and public process:
Carini is the sole owner/operator of a consulting company named “Professional
Touch Too.” After Carini’s election in 2005, but prior to taking office in January 2006,
Carini provided the Borough with minor computer related services at no cost. After taking
office in January 2006, Carini approached the then Council President and requested that
the Borough utilize Professional Touch Too for maintenance and servicing of Borough
computers.
At the January 9, 2006, Borough Council meeting, Council voted to compensate
Carini for work on Borough computers at the rate of $50.00 per job, subject to Carini
keeping a detailed log of the work done. Carini abstained from the vote. The Borough did
not advertise for bids for a computer service contractor. No other contractors were
solicited for quotes.
Carini contracted with the Borough even though Section 46404 of the Borough
Code prohibits a council member from having a personal interest in a contract for
expenditure of borough funds of more than $1,000.00 in any calendar year. See, 53 P.S. §
46404.
Carini submitted invoices totaling $1,674.99 between January 2006 and October
2006 for maintenance work claimed to have been completed on Borough computers.
Carini invoiced services performed on individual computers as separate “jobs.” On at least
two occasions, Carini charged the Borough for software programs but did not supply to the
Borough the actual materials purchased. Additionally, beginning in August 2006, Carini
increased his charges to the Borough from $50.00 per job to $100.00 per job, without
authorization by Borough Council.
Carini routinely participated in voting to approve monthly bills that included
payments to his business, Professional Touch Too.
Between April 2007 and May 2008, as a result of public inquiry regarding Carini’s
contract and his overcharging the Borough for computer services, Carini refunded a
portion of what he had been paid by the Borough.
The parties have stipulated that Carini realized a financial gain of $1,036.05 by
advocating for and accepting a no bid contract to service Borough computers,
overcharging the Borough for services rendered, and voting to approve bill lists on which
payment to his company, Professional Touch Too, was included.
Carini’s failure to fully reimburse the Borough for health insurance:
In 2007, after losing health insurance coverage through his spouse, Carini directed
Borough staff to submit an application for Carini to receive health insurance coverage
through the Borough’s health insurance provider. The application was submitted on
September 19, 2007. At that time, Borough Council Members were not specified as
eligible recipients of Borough provided health insurance. Carini’s application for coverage
was denied for the stated reason that Carini would have to wait until the open enrollment
beginning in January 2008.
Carini, 08-051
Page 18
Subsequently, at a Borough Council meeting on October 8, 2007, Carini initiated
approval by Council to include Council Members in the Borough health insurance plan.
After unsuccessfully attempting to have his insurance coverage provided at Borough
expense, Carini made a motion and participated in the unanimous vote of Council to allow
Council Members and the Mayor to participate in existing Borough health insurance plans
at their own expense. As a result of Carini’s aforesaid actions, Carini received health
insurance coverage through the Borough’s provider for the months of October and
November, 2007. Carini canceled his coverage on November 30, 2007, effective
December 1, 2007.
The cost of the health care benefits that Carini received in October and November
2007 was $756.66. Carini paid the Borough only $535.14 for his health insurance
premiums. Carini has not paid the Borough the outstanding balance of $221.52.
The parties have stipulated that Carini realized a financial gain of $221.52 when he
utilized his public office to receive medical insurance from the Borough and failed to pay
his premium in full.
Carini’s failure to file SFIs with the Borough for calendar years 2006, 2007, and 2008:
st
As a Borough Councilman, Carini is required to file SFIs by May 1 annually. An
SFI compliance review for the Borough was conducted by the Investigative Division on
August 4, 2008, and confirmed that no SFIs were on file for Carini with the Borough for the
2005, 2006, or 2007 calendar years. As of August 12, 2009, there was no SFI on file for
Carini with the Borough for the 2008 calendar year.
Having highlighted the Stipulated Findings and issues before us, we shall now apply
the Ethics Act to determine the proper disposition of this case.
The parties' Consent Agreement sets forth a proposed resolution of the allegations
as follows:
3. The Investigative Division will recommend the following in
relation to the above allegations:
A. That a violation of Section 1103(a) of the Public
Official and Employee Ethics Act, 65 Pa.C.S.
§1103(a) occurred in relation to Mr. Carini’s use
of Borough employees, equipment, and supplies
for personal use.
B. That a violation of Section 1103(f) of the Public
Official and Employee Ethics Act, 65 Pa.C.S.
§1103(f) occurred when Mr. Carini contracted
with the Borough without an open and public
process to provide repair services to Borough
computers.
C. That a violation of Section 1104(a) of the Public
Official and Employee Ethics Act, 65 Pa.C.S.
§1104(a) occurred in relation to Mr. Carini’s
failure to file Statements of Financial Interests
for the 2006, 2007, and 2008 calendar years.
D. That a violation of Section 1103(a) of the Public
Official and Employee Ethics Act, 65 Pa.C.S.
§1103(a) occurred when Mr. Carini failed to
Carini, 08-051
Page 19
reimburse the Borough for health insurance
premiums.
4. Carini agrees to make payment in the amount of $1,500.00 in
settlement of this matter payable to the Borough of Carnegie
and forwarded to the Pennsylvania State Ethics Commission
within thirty (30) days of the issuance of the final adjudication
in this matter.
5. Carini agrees to file Statements of Financial Interests with
Carnegie Borough, through the Pennsylvania State Ethics
Commission, for calendar years 2006, 2007, and 2008 within
thirty (30) days of the issuance of the final adjudication in this
matter.
6. Carini agrees, subject to paragraph seven (7) below, that he
will neither seek nor hold any position of public office or of
public employment in the Commonwealth of Pennsylvania at
any time.
7. The foregoing is not intended to prohibit Carini from rendering
services to any governmental body as an independent
contractor (either directly or through subcontractors).
8. The Investigative Division will recommend that the State Ethics
Commission take no further action in this matter; and make no
specific recommendations to any law enforcement or other
authority to take action in this matter. Such, however, does
not prohibit the Commission from initiating appropriate
enforcement actions in the event of Respondent's failure to
comply with this agreement or the Commission's order or
cooperating with any other authority who may so choose to
review this matter further.
Consent Agreement, at 1-2.
In considering the Consent Agreement, we agree with the parties that a violation of
Section 1103(a) of the Ethics Act occurred in relation to Carini’s use of Borough
employees, equipment, and supplies for personal purposes. From the spring of 2006 to
May 2008--a period of approximately two years--Carini used the authority of his public
position as a Borough Council Member and Chairman of the DPW to direct DPW
employees to transport Borough equipment for Carini’s personal use at the Rental
Property. This enabled Carini to perform lawn maintenance at the Rental Property without
the necessity of obtaining or transporting equipment at his own expense. By performing
lawn maintenance at the Rental Property using Borough equipment, Carini received from
his landlords a rent reduction and free use of a second garage, valued at a total of $60.00
per month. Additionally, Carini directed Borough employees to perform bee extermination
at his girlfriend’s property, which was located outside of the Borough.
It is axiomatic that the use of government staff, time, equipment, facilities, or
property for non-governmental purposes—including business, personal, or political
purposes—may form the basis for a violation of Section 1103(a) of the Ethics Act. See,
Confidential Opinion, 05-001; see, Debias, Order 1539, 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). See also, Pierce, Order
Carini, 08-051
Page 20
1449; Cobb, Order 1354; Cagno, Order 1204; cf., Rembold, Order 1417; Koser, Order
1351; Farley, Order 1096.
We conclude that the recommendation of the parties is the correct result, and
accordingly, we hold that a violation of Section 1103(a) of the Ethics Act occurred in
relation to Carini’s use of Borough employees, equipment, and supplies for personal
purposes.
We further accept the recommendation of the parties for a finding that a violation of
Section 1103(f) of the Ethics Act occurred when Carini contracted with the Borough without
an open and public process to provide repair services to Borough computers.
Based upon the stipulations of the parties, in 2006, Carini advocated for and
accepted a no bid contract to service Borough computers. The Borough did not advertise
for bids for a computer service contractor. No other contractors were solicited for quotes.
Rather, the contract was awarded directly to Carini without an open and public process.
The value of the contract was in excess of $500.00.
Accordingly, we hold that a violation of Section 1103(f) of the Ethics Act occurred
when Carini contracted with the Borough without an open and public process to provide
repair services to Borough computers.
The parties have agreed to a finding that a violation of Section 1103(a) of the Ethics
Act occurred when Carini failed to reimburse the Borough for health insurance premiums.
Carini used the authority of his public office as a Borough Council Member when, at
a Borough Council meeting on October 8, 2007, he initiated approval by Council to include
Council Members in the Borough health insurance plan. After unsuccessfully attempting to
have his insurance coverage provided at Borough expense, Carini made a motion and
participated in the unanimous vote of Council to allow Council Members and the Mayor to
participate in existing Borough health insurance plans at their own expense. As a result of
Carini’s aforesaid actions, Carini received health insurance coverage through the
Borough’s provider for the months of October and November, 2007. Carini only partially
reimbursed the Borough for his health insurance premiums. Carini has not paid the
Borough the outstanding balance of $221.52. The parties have stipulated that Carini
realized a financial gain of $221.52 when he utilized his public office to receive medical
insurance from the Borough and failed to pay his premium in full.
We are mindful of the judicial decision in Bixler v. State Ethics Commission, 847
A.2d 785 (Pa. Commw. Ct. 2004) (holding that a net profit in the amount of $561.77
resulting from business transactions between a township supervisor’s employer and the
township would fall within the “de minimis” exclusion to the definition of “conflict of
interest”). If the parties had not determined to enter into a Consent Agreement, we could
have been presented with issues as to whether, under the circumstances of this case,
Bixler would apply as to this particular private pecuniary benefit received by Respondent.
However, given: (1) that the parties have entered into a comprehensive Consent
Agreement; and (2) the parties are in agreement that the finding of the aforesaid violation
of Section 1103(a) would be appropriate as part of an overall settlement of this case, we
shall accept the parties’ proposed disposition. We note that this determination in this case
based upon the agreement of the parties should not be considered as precedent for other
cases, which would be determined based upon their own facts and circumstances.
We hold that a violation of Section 1103(a) of the Ethics Act occurred when Carini
failed to reimburse the Borough for health insurance premiums.
Carini, 08-051
Page 21
Finally, we hold that a violation of Section 1104(a) of the Ethics Act occurred in
relation to Carini’s failure to file SFIs for the 2006, 2007, and 2008 calendar years. We
note that the Consent Agreement does not address the filing of an SFI for calendar year
2005. However, we accept the Consent Agreement submitted by the parties as a proper
disposition for this case based upon the totality of the facts and circumstances.
As part of the Consent Agreement, Respondent Carini has agreed to make payment
in the amount of $1,500.00 payable to the Borough of Carnegie and forwarded to this
Commission within thirty (30) days of the issuance of the final adjudication in this matter.
Respondent has further agreed to file SFIs for calendar years 2006, 2007, and 2008
with the Borough through this Commission, within thirty (30) days of the issuance of the
final adjudication in this matter.
Finally, Carini has agreed that he will neither seek nor hold any position of public
office or of public employment in the Commonwealth of Pennsylvania at any time. The
parties have agreed that this is not intended to prohibit Carini from rendering services to
any governmental body as an independent contractor (either directly or through
subcontractors). We note, however, that by operation of law, the parties’ aforesaid
agreement is subject to the following exception. Upon termination of service as a Borough
Council Member, Carini would become a “former public official” subject to the restrictions
of Section 1103(g) of the Ethics Act, 65 Pa.C.S. § 1103(g). Such restrictions, which would
apply for the first year following Carini’s termination of service as a Borough Council
Member, would prohibit Carini from contracting with the Borough/Borough Council or
otherwise representing a person before Borough Council, with promised or actual
compensation, on any matter before Borough Council, including but not limited to
contract(s) with the Borough/Borough Council. See, e.g., Shaub, Order 1242; Confidential
Opinion, 97-008; Confidential Opinion, 93-005.
Per the Consent Agreement of the parties, Carini is directed to make payment in the
amount of $1,500.00 payable to the Borough of Carnegie and forwarded to this
th
Commission by no later than the thirtieth (30) day after the mailing date of this
adjudication and Order.
Carini is directed to file SFIs for calendar years 2006, 2007, and 2008 with the
th
Borough through this Commission, by no later than the thirtieth (30) day after the mailing
date of this adjudication and Order.
Per the Consent Agreement of the parties, Carini is directed that he is to neither
seek nor hold any position of public office or of public employment in the Commonwealth of
Pennsylvania at any time. This is not intended to prohibit Carini from rendering services to
a governmental body as an independent contractor (either directly or through
subcontractors), except to the extent such conduct would be prohibited by Section 1103(g)
of the Ethics Act.
Compliance with the foregoing will result in the closing of this case with no further
action by this Commission. Noncompliance will result in the institution of an order
enforcement action.
IV.CONCLUSIONS OF LAW:
1. As a Council Member for Carnegie Borough (“Borough”), Allegheny County, since
January 2, 2006, Respondent Fred Carini (“Carini”) has been a public official
subject to the provisions of the Public Official and Employee Ethics Act (“Ethics
Act”), 65 Pa.C.S. § 1101 et seq.
2. Carini violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation
Carini, 08-051
Page 22
to his use of Borough employees, equipment, and supplies for personal purposes.
3. A violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred when
Carini contracted with the Borough without an open and public process to provide
repair services to Borough computers.
4. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred
when Carini failed to reimburse the Borough for health insurance premiums.
5. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred in
relation to Carini’s failure to file Statements of Financial Interests for the 2006,
2007, and 2008 calendar years.
In Re: Fred Carini, : File Docket: 08-051
Respondent : Date Decided: 6/22/10
: Date Mailed: 7/9/10
ORDER NO. 1560
1. As a Council Member for Carnegie Borough (“Borough”), Allegheny County, Fred
Carini (“Carini”) violated Section 1103(a) of the Public Official and Employee Ethics
Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), in relation to his use of Borough
employees, equipment, and supplies for personal purposes.
2. A violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred when
Carini contracted with the Borough without an open and public process to provide
repair services to Borough computers.
3. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred
when Carini failed to reimburse the Borough for health insurance premiums.
4. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred in
relation to Carini’s failure to file Statements of Financial Interests (“SFIs”) for the
2006, 2007, and 2008 calendar years.
5. Per the Consent Agreement of the parties, Carini is directed to make payment in the
amount of $1,500.00 payable to the Borough of Carnegie and forwarded to the
th
Pennsylvania State Ethics Commission by no later than the thirtieth (30) day after
the mailing date of this Order.
6. Carini is directed to file SFIs for calendar years 2006, 2007, and 2008 with the
Borough through the Pennsylvania State Ethics Commission, by no later than the
th
thirtieth (30) day after the mailing date of this Order.
7. Per the Consent Agreement of the parties, Carini is directed that he is to neither
seek nor hold any position of public office or of public employment in the
Commonwealth of Pennsylvania at any time. This is not intended to prohibit Carini
from rendering services to a governmental body as an independent contractor
(either directly or through subcontractors), except to the extent such conduct would
be prohibited by Section 1103(g) of the Ethics Act.
8. Compliance with Paragraphs 5, 6, and 7 of this Order will result in the closing of this
case with no further action by this Commission.
a. Non-compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
___________________________
Louis W. Fryman, Chair