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HomeMy WebLinkAbout84-538 BloomMr. Irving L. Bloom, Esquire County Solicitor Office of the County Solicitor 102 Courthouse Square Greensburg, PA 15601 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 March 20, 1984 ADVICE OF COUNSEL RE: Westmoreland Manor, Ronette Corporation, Emery DiDonato Dear Mr. Bloom: 84 -538 This responds to your letter of February 16, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask what duties and responsibilities the County Commissioners have under the Ethics Act with regard to past employees forming a corporation, contracting with the County, and the impact of the proposed resignation of a member of the County nursing home staff who will be employed by a certain corporation. Facts: You are writing on behalf of the County of Westmoreland and its Commissioners, hereinafter the County. You provide a background of the circumstances which you wish us to address. Specifically, you indicate that in June, 1982, an individual, Annette Cerilli, hereinafter Cerilli, who worked as the Assistant Director of Finance and who also worked with admissions at Westmoreland Manor, a geriatric hospital operated by the County, resigned from her County post. At that same time another individual, Ronald Gigliotti, hereinafter Gigliotti, also resigned from his position as Director of Finance at Westmoreland Manor. While employed by the County at Westmoreland Manor, both Cerilli and Gigliotti had jobs that involved discretionary exercise of judgment. Following their resignations, Cerilli and Gigliotti incorporated an entity known as Ronette Corporation, hereinafter Ronette or the Corporation. On June 29, 1982, a contract was proposed between Ronette Corporation and Westmoreland Manor. You have provided us with copies of the contract and that information is incorporated herein by reference. The individual who was then Director of Westmoreland Manor, Emery DiDonato, hereinafter, DiDonato, and you as Solicitor, reviewed the contract and were concerned with DiDonato's authority to sign the contract without the joinder or affirmative approval of State Ethics Commission f 308 Finance Building • Harrisburg, Pennsylvania Mr. Irving L. Bloom, Esquire March 20, 1984 Page 2 the County Commissioners. Following your research of the matter, you opined that DiDonato, through his status and job description, had the power to execute the contract. However, you felt that such a basic change in procedure at Westmoreland Manor should be reviewed by the County Commissioners even though such a review was not legally necessary, In accordance with this opinion, you and DiDonato met with County Commissioners and explained the full legal basis for the contract and indicated that on an administrative level the contract would be financially benefical to the County. The Commissioners reviewed the matter and DiDonato signed the contract on August 1, 1982. You indicate that following this contracting procedure, several other employees of Westmoreland Manor resigned their County employment to assume employment with Ronette Corporation. Specifically, on September 1, 1983, Richard Cunningham resigned as Director of Purchasing for Westmoreland Manor and accepted employment with Ronette. Thereafter, DiDonato resigned on November 30, 1983, with such resignation to be effective December 31, 1983, so that he could accept employment with Ronette Corporation. However, at the request of the County Commissioners, DiDonato, agreed to stay on as Executive (Director of Westmoreland Manor until any ethical questions concerning his resignation and re.- employment with Ronette could be reviewed. We should note that DiDonato has recently presented a request for Advice on his own behalf to the State Ethics Commission which is docketed with this Commission at 84-038. However, while DiDonato has requested advice as to his duties and responsibilities under the Ethics Act, you present three questions as to the County's duties and responsibilities, if any, with respect to the above - outlined factual situation. Specifically, you ask: 1. What action, if any, should the County Commissioners take regarding past employees who formed Ronette and are transacting business with Westmoreland Manor on a contract with the County. 2. What action, if any, should Westmoreland County take regarding former employees who have become employed by Ronette and are working on the contract between Ronette and the County. 3. What action, if any, should Westmoreland County take regarding the proposed resignation of DiDonato and his proposed employment with Ronette. Discussion: Each of your clients, the County Commissioners of Westmoreland County, are to be considered "public officials" as that term is defined in the State Ethics Act. See Section 2 of the State Ethics Act, 65 P.S. 402. As such, their conduct must conform to the requirements of the State Ethics Act. Your questions, however, appear to center around the responsibility of the County Commissioners as a whole with respect to the Ethics Act and the former employees of Westmoreland Manor, the contract between Ronette and Westmoreland County, and the pending resignation of another employee of Westmoreland Manor, DiDonato, and his proposed employment with Ronette. Mr. Irving L. Bloom, Esquire March 20, 1984 Page 3 We will address the basic question of the duties and responsibilities of the County Commissioners with respect to these past employees and the contract with Ronette first. The Ethics Act does not contain any explicit section or provision which imposes upon the County Commissioners, a responsibility to administer, oversee, or enforce the provisions of the Ethics Act with respect to the conduct of past employees. It should be noted that the Ethics Act does address and regulate the conduct of "former public employees" in Section 3(e) of the Ethics Act, 65 P.S. 403(e). However, absent some specific provision in the Ethics Act which would require the County Commissioners to take action regarding the conduct of these "former public employees" as that conduct may be regulated by Section 3(e) of the Ethics Act, the County Commissioners, as individuals, are not required to undertake any "action" in this regard. Likewise, the fact that the County is contracting with or transacting business with Ronette, a corporation formed by "former public employees" does not give rise to any duty or obligation on the part of the County Commissioners under the Ethics Act. The above statement is made with the recognition that while there is no legal obligation on the part of the County Commissioners under the Ethics Act to insure that the conduct of former public employees conforms to the requirements of the Act, the County Commissioners and other citizens may, if they believe that the Ethics Act has been violated, refer this information to the State Ethics Commission in the form of a written, sworn complaint. Under the State Ethics Act, if a sworn complaint is received, the Ethics Commission is required to undertake a confidential investigation. See Section 8(a) of the Ethics Act, 65 P.S. 408(a). Finally, you ask what action, if any, the County Commissioners should take regarding the resignation of DiDonato and his proposed employment with Ronette. In this regard, I refer you to the Advice which we have recently issued to DiDonato which outlines the scope of his restrictions under the State Ethics Act vis -a -vis the "governmental body ", the County, with which he had been associated while employed at Westmoreland Manor. This Advice indicates the scope of permitted and prohibited activities and should be observed by DiDonato. However, in response to your specific question as to what action, if any, the County Commissioner should take regarding the proposed resignation and re- employment of DiDonato, I refer again to the fact that the Ethics Act contains no specific provision which imposes a positive or legal responsibility upon the County Commissioners with regard to oversight or enforcement of Section 3(e) of the Ethics Act or any other provision thereof. Consequently, while you should be alert to the duties and responsibilities of DiDonato and the restrictions on his conduct within the first year after he resigns from his post at Westmoreland Manor, the County Commissioners are under no legal obligation to enforce the provisions of the State Ethics Act. However, once again, should the County Commissioners or any other citizen become aware of any potential or alleged violation of the Ethics Act, such information can be referred to us as set forth in the Ethics Act. Mr. Irving L. Bloom, Esquire March 20, 1984 Page 4 Conclusion: The County Commissioners are not required, by the Ethics Act, to take action regarding the conduct of "former public employees ", the contract between Ronette and the County, or the proposed employment by Ronette of DiDonato as set forth and discussed above. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. SSC /rdp This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. cc: E. J. DiDonato Andrew J. Gleason, Esquire Sincerely, andra S. ,'ristianson General Counsel