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HomeMy WebLinkAbout1099 FerraroIn Re: Margaret Ferraro STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 - File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Julius Uehlein Louis W. Fryman John J. Bolger Frank M. Brown Susan Mosites Bicket 97- 046 -C2 Order No. 1099 12/15/98 12/29/98 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 el seq., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). 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 waived. The record is complete. A Consent Agreement was submitted by the parties to the Commission for consideration which was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11, Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 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 Chapter 11 of Act 93 of 1998. 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. Confidentiality does not preclude discussing this case with an attorney at law. Ferraro, 97- 046 -C2 Page 2 I. ALLEGATION: That Margaret Ferraro, a public official /public employee, in her capacity as a Member of the Northampton County Council, violated Section 3(f) of the State Ethics Law (Act 9 of 1989) when her spouse entered into a contract with the county, valued at more than $500 without an open and public process, including prior public notice and public disclosure of all proposals considered and contracts awarded. II. FINDINGS: 1. Margaret Ferraro served as a member of Northampton County Council from 1990 through 1997. 2. Northampton County is a Home Rule Charter county. a. Northampton County is governed by council consisting of nine (9) elected council members. 3. Section 202 of the Northampton County Home Rule Charter provides the powers of the county council, in part: 1. To adopt and repeal ordinances; 2. To adopt the budget; 3. To confirm the appointment by the County Executive of the heads of agencies immediately under his direction and supervision; 4. To confirm the appointment of members of authorities, board and commissions; 5. To levy taxes and to determine the subject manner and of taxation; 6. To establish by ordinance procedures to set the fees charged by all agencies in accordance with the law of the United States and Pennsylvania; 7. To adopt, amend, and repeal the administrative code; 8. To require periodic and special reports from elected officials and their subordinates; 9. To determine which officers, agents, and employees, not including elected officials, shall execute and file official bonds and to set the amounts of all official bonds; 10. To accept on behalf of the county any gifts of real property and to provide for the acceptance by any agency on behalf of the county of other gifts; 11. To establish in accordance with this Charter the salaries and wages of all elected officials, officers, and employees; and to set the numbers of officers and employees of each agency; Ferraro, 97- 046 -C2 Page 3 12. To approve any collective bargaining agreements with officers and employees; and 13. To compel the attendance of witnesses and the production of documents and other evidence at investigative hearings, and for that purpose may issue subpoenas, signed by officers of the County Council and served as provided by law. The County Council shall have the power by ordinance to extend its subpoena power to other officials or agencies of the county, but such ordinance shall indicate the specific inquiry and - investigative purposes for which the subpoena power is being extended and the time during which the subpoena power will be held by the official or agency in question. The County Council shall have the power by ordinance to define and punish any contempt relating to the enforcement of such subpoenas. 4. Northampton County's Home Rule Charter provides for the elected county executive to serve as the chief executive and administrative official of the county. a. Duties of the county executive include in part, "the power to direct and supervise the agencies and personnel under him in accordance with this charter, to appoint, promote, transfer, demote, suspend, dismiss, or discipline the officers and employees under his direction and supervision in accordance with this charter." 5. Section 904 of Article IX of the Home Rule Charter provides that each agency, with the exception of the Clerk of Council, Office of Controller and Office of the District Attorney, shall be under the direction and. supervision of the County Executive. 6. Section 908 of Article IX of the Charter established the Office of Solicitor under the direction and supervision of the County Executive. a. The function of the Office of Solicitor is to provide legal counsel to elected officials and all agencies and represent the county in all legal proceedings to which the county is a party. 7. A. L. Brackbill served as the elected county executive of Northampton County from 1994 through 1997. 8. Northampton County does not employ a full -time solicitor. a. The county utilizes the services of approximately four attorneys on a part-time basis. b. The county solicitor's office normally does not handle legal matters relating to land acquisition or bridge construction. 9. The county executive hires county solicitors without the approval of the county council pursuant to Section 908 of the Charter. a. As a standard practice in Northampton County, the county executive has hired all attorneys. Ferraro, 97- 046 -C2 Page 4 10. The county executive hires all outside legal services without council action. a. Outside counsel is obtained for county projects where the expenses are going to be reimbursed from liquid fuel funds. b. Payments for outside legal services rendered are authorized directly by the county executive without council approval. 11. During 1995 and 1996 County Executive Brackbill engaged the legal services of Dominic Ferraro, Esquire, for county projects involving land acquisitions for county parks and bridge construction. a. The nature of this work was beyond the scope normally performed by the county part-time solicitors. b. Dominic Ferraro had previously discussed getting legal work from the county with Brackbill. 12. Dominic Ferraro, Esquire, is the husband of Northampton County Council Member Margaret Ferraro. a. Dominic Ferraro, Esquire, operates a law practice at 124 South Main Street, Nazareth, PA. 13. Brackbill did not advertise for bids or proposals for the outside legal services provided by Ferraro. 14. The contract awarded to Ferraro was not awarded through an open and public process. a. The contract was awarded Dominic Ferraro. 15. There were no other proposals contract. by Brackbill following a discussion with considered prior to the award of this 16 .There was no public disclosure of the contract awarded. a. The procedure followed in the hiring of Dominic Ferraro by the County Executive was apparently consistent with past custom and practice related to the retaining of legal counsel in Northampton County. 17. The hiring of Dominic Ferraro, Esquire, by Brackbill to provide outside legal services for the county did not go before county council for approval. 18. Dominic Ferraro, Esquire, did not have any formal written employment contract with Northampton County. a. Dominic Ferraro, Esquire, had a verbal agreement with County Executive Brackbill. b. No minimum or maximum legal fees to be paid Ferraro was set. Ferraro, 97- 046 -C2 Page 5 19. Margaret Ferraro did not participate in the hiring of her husband Dominic Ferraro to provide legal services for County Executive Brackbill. a. No vote of council was taken for his appointment. 20. During 1995, the nature of Dominic Ferraro's legal services involved the acquisition of three (3) separate parcels of land for county parks. a. Dominic Ferraro was issued three (3) payments totaling $2,255.00 for this work. (See Finding No. 22). b. These payments were made from the county's park and recreation fund. c. Payments were authorized by County Executive Brackbill. d. Council approval was not required. 21. During 1996 the nature of Dominic Ferraro's legal services involved aspects of potential land acquisition for county bridge #43 reconstruction. a. Dominic Ferraro was issued seven (7) payments totaling $3,676.25 for this work. (See Finding No. 22). b. These payments were made from the county's liquid fuels fund. c. Payments were authorized by Brackbill. d. Council approval was not required. 22. Ten payments totaling $5,931.25 were made by the County to Ferraro for legal services he provided the county. Dominic Date Origin Project Amount April 1995 Parks and Rec. Horwith Purch. $ 500.00 .October 1995 Parks and Rec. Cramer Purch. $ 780.00 December 1995 Parks and Rec. Smyth Purch. $ 975.00 May 8, 1996 Liquid Fuels Bridge #43 $ 531.25 July 2, 1996 Liquid Fuels Bridge #43 $ 722.50 Aug. 14, 1996 Liquid Fuels Bridge #43 $ 170.00 Sept. 13, 1996 Liquid Fuels Bridge #43 $1,338.75 Oct. 10, 1996 Liquid Fuels Bridge #43 $ 170.00 Dec. 12, 1996 Liquid Fuels Bridge #43 $ 170.00 April 10, 1996 Liquid Fuels Bridge #43 $ 573.75 Total $5,931.25 23. Payments issued by Northampton County to Dominic Ferraro, Esquire, did not go before council for approval. a. Payments were authorized by County Executive. Brackbill. 24. The services of Dominic Ferraro, Esquire, were discontinued in 1996. Ferraro, 97- 046 -C2 Page 6 25. There is no evidence linking Margaret Ferraro to decisions regarding either the hiring or the payment of her husband, Dominic Ferraro, by the County of Northampton. III. DISCUSSION: At all times relevant to this matter, the Respondent, Margaret Ferraro, hereinafter Ferraro, was a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, et seq. /Act 93 of 1998, Chapter 11. The issue is whether Ferraro violated Section 1103(f) of the Ethics Act when her spouse entered into a contract valued at more than $500 to provide legal services to the County in 1995 and 1996, without an open and public process. Section 1103. Restricted activities. (f) Contract. - -No public official or public employee or 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. Section 1103(f), Act 93 of 1998, Chapter 11. Section 1 103(f) of the Ethics Act specifically provides in part that no public official /public employee or spouse or child or business with which he or the 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 is openeand public process including prior public notice and subsequent public Having noted the issues and applicable law, we shall now summarize the relevant facts. Ferraro served as a Member of Northampton County Council from 1990 through 1997. Since Northampton County operates through a Home Rule Charter, it is governed by a Council consisting of nine members. There is also an elected County executive who serves as the chief executive and administrative official in the County, with duties to direct and supervise agencies and personnel under him in accordance with the Charter. Ferraro, 97- 046 -C2 Page 7 Since Northampton County does not employ a full -time solicitor, it utilizes the services of four part-time attorneys. The County Executive hires the County solicitors without the approval of County Council pursuant to the Home Rule Charter. In 1995 and 1996, the County Executive engaged the legal services of Dominic Ferraro for County projects involving land acquisitions which were beyond the scope of legal matters performed by the County part-time solicitors. Dominic Ferraro, the spouse of Ferraro, had previously discussed obtaining legal work from the County Executive. - The County Executive did not advertise for bids or proposals for the outside legal services provided by Dominic Ferraro. Hence, the contract to Dominic Ferraro was not awarded through an open and public process. There was no written agreement as to the employment contract for Dominic Ferraro, but merely a verbal agreement between Dominic Ferraro and the County Executive. Ferraro did not participate in the hiring of her spouse, Dominic, to provide legal services for the County. Utilizing Dominic Ferraro for legal services was not considered by the County Council and no vote was taken by Council as to his appointment or payment for his services. In 1995, Dominic Ferraro performed legal services for which he was paid $255 . by the County. In 1996, Dominic Ferraro also provided legal services and received payment of $3676.25. In both instances, the payments to Dominic Ferraro were authorized by the County Executive. The total fees received by Dominic Ferraro amounted to $5931.25. The services of Dominic Ferraro were discontinued in 1996. There is no evidence linking Ferraro to decisions regarding either the hiring of her spouse or payments to her spouse for performing services for Northampton County. Having summarized the above relevant facts, we must now determine whether the actions of Ferraro violated Section 1 103(f) of the Ethics Act. • In a Consent Agreement, the Investigative Division has stated that it has made a complete and thorough investigation of this case and found no evidence to demonstrate a violation of Section 1103(f). Recognizing that the Investigative Division has prosecutorial discretion, we will accordingly defer to such discretion and conclude that there is no violation in this case based upon the investigation and recommendation of the Investigative Division. We find that Ferraro did not violate Section 1103(f) of the Ethics Act regarding the award of a contract to her spouse to provide legal services to the County, based upon the evidence produced by the Investigative Division and Consent Agreement of the parties. We will take no further action in this case which is closed. We believe that the Consent Agreement is the proper disposition for this case based upon our review as reflected in the above analysis. Our decision is based upon and limited to the particular facts and circumstances of this case. IV. CONCLUSIONS OF LAW: 1. Ferraro, as a Council Member in Northampton County, was a public official subject to the provisions of Act 9 of 1989. 2. Based upon the evidence produced in the investigation and as per a consent agreement of the parties, Ferraro did not violate Section 1103(f) of the Ethics Act regarding the award of a contract to her spouse to provide legal services to the county. In Re: Margaret Ferraro ORDER NO. 1099 File Docket: 97- 046 -C2 Date Decided: 12/15/98 Date Mailed: 12/29/98 1. Based upon the evidence produced in the investigation and as per a consent agreement of the parties, Ferraro, as a Council Member in Northampton County, did not violate Section _1103(f) of the Ethics Act regarding the award of a contract to her spouse to provide legal services to the county. BY THE COMMISSION, caxuwE DANEEN E. REESE, CHAIR