HomeMy WebLinkAbout288 McDonoughMr. John McDonough
780 E. Drinker Street
Dunmore, PA 18512
RE: No. 82 -93 -C
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF COMMISSION
March 19, 1984
Order No. 288
Dear Mr. McDonough:
The State Ethics Commission has received a complaint regarding you and a
possible violation of Act 170 of 1978. The Commission has now completed its
investigation. The individual allegations, conclusions and findings on which
those conclusions are based are as follows:
I. Allegation: That you, a School Director, used your office or confidential
information gained from that office to have the School District use vending
machines of your employers, that the vendor was changed when you changed your
employment and the machines of your new employer were used and that this
violates Section 3(a) of the Act in that you used your office or confidential
information for personal financial gain.
A. Findings:
1. You are a School Director for the Dunmore Area School District and
are subject to the Ethics Act.
2. You had been an employee of Maloney Enterprises for nearly 30 years
aild terminated your employment with them on September 8, 1982.
3. You are an employee of J & E Vending Company. This Company is owned
by Mr. James Summa of Dunmore, Pennsylvania.
a. You became a full -time employee for this firm in approximately
June, 1982.
b. From April, 1982, until becoming a full -time employee, you
assisted Mr. Summa in repairing his machines.
c. You were not an officer, or director of J & E Vending and do
not hold stock in the Company.
4. Prior to Labor Day, 1982, a number of vendors had machines installed
in the Dunmore Area School District.
Mr, John McDonough March 19, 1984
Page 2
a. Maloney Enterprises removed their machines from the School
District shortly after the end of June 1982. They had had machines in the
District for a number of years.
. b. Keystone Coca Cola Bottling Company removed its machines
shortly after Labor Day, 1982. They had provided vending machines to the
School District for a number of years.
c. American Amusement Machine Corporation of Scranton,
Pennsylvania, also removed their machines approximately Labor Day, 1982.
5. J & E Vending Company installed their vending machines in the
Dunmore School District on or about Labor Day, 1982.
a. About the end of July, 1982, Mr. Summa, owner of J & E Vending
Company, contacted Mr. Frank Flaherty, President of the School Board of the
Dunmore Area School District, about installing his vending machines in the
School District.
directors.
b. Mr. Summa also solicited the approval of other school
c. Mr. Flaherty made the decision to have J & E Vending Machines
replace those of all other vendors and told the janitor to inform the other
vendors to remove their machines.
1. At that time Mr. Flaherty stated that he believed you
were employed by Maloney Enterprises and he was not aware of your employment
with J & E Vending.
2. Mr. Flaherty stated his reason for approving the change
was to keep the business in the Dunmore Area.
6. On September 20, 1982, at the School Board meeting the School Board
considered the installation of vending machines in the School District.
7., Mr. Rowlanas made a motion; seconded by Mr. Colangelo, that the "J &
E Vending Co. owned by James Summa, Dunmore, Pennsylvania, be authorized to
provide vending services in the Dunmore School District consistent with
agreeable contracts as approved."
b. There was no discussion or explanation of the fact that J & E
Machines had been installed at the District approximately two weeks prior to
this meeting and authorization.
c. The motion was approved 6 - 2 with one abstention. You were
present and voted in favor of the motion.
Mr.. John McDonough
Page 3
d. There is no record in the School Board minutes of that meeting
that you disclosed your employment with J & E Vending Co.
e. On October 6, 1982, Mr. Joseph P. Coviello, Solicitor for the
School District, in a letter to Mr. Joseph Kalinowski, also a member of the
School Board, stated that he had told the Board that a conflict did not and
could not exist in this case because no money was being expended by the
District and no funds were coming into the District's general fund. He noted
that Mr. McDonough was an employee of J & E Vending Co. and he would not see a
conflict even if money were received by J & E from the School District. Mr.
Coviello did not say when he first gave this opinion to the Board.
8. There is no evidence that bids or proposals by other vending
companies were sought or presented to the Board before or during the September
22, 1982 meeting.
a. The School Board had never solicited bids for the installation
of vending machines.
b. The School Board had never entered into any contracts with any
vendor.
c. The vendors made agreements with the Student Activity Faculty
Advisor on the percentage of revenue to be given to the Student Activity
Fund.
d. The School Board did not make or enter into a contract for J &
E Vending Company and there is no explanation for the language in the motion
which authorized J & E Vending Company to install machines "consistent with
agreeable contracts as approved."
9. Other than your vote at the September 22, 1982 meeting to approve
the installation of J & E Vending Co. machines, there is no evidence that you
used your office or confidential information to have J & E Vending Co.
machines installed in the Dunmore Area School District.
B. Discussion:
Section 3. Restricted activities.
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
Mr. John McDonough March 19 , 1984
Page 4
Section 2. Definitions.
"Business with which he is associated." Any business in
which the person or a member of the person's immediate
family is a director, officer, owner, employee or holder
of stock. 65 P.S. 402.
There is no dispute that you were an employee of J & E Vending Co. on
September 22, 1982, and that you voted for the installation of that firm's
vending machines in the Dunmore Area School District.
J & E Vending Co. was a business with which you were associated as an
employee and your vote constituted the use of your office to obtain financial
gain for that business. We find that you violated Section 3(a) of the Ethics
Act. However, there are circumstances which mitigate against referring this
case to the appropriate law enforcement officials for prosecution. There is
no evidence that you used your office except for your vote on September 22.
In addition, there is no evidence that you used your office to influence Mr.
Flaherty, President of the School Board, to have J & E Vending Co. machines
installed in the District in September. It also appears that the Solicitor
had given an oral opinion that you could vote without a conflict. Although we
will not refer this matter to a law enforcement official for prosecution, you
must comply with the requirements of the Ethics Act in your future actions as
a public official. Sections of the Act that are particularly important are
3(a), (b) and (c); these sections state the following:
Section 3. Restricted activities.
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
(b) No person shall offer or give to a public official or
public employee or candidate for public office or a member
of his immediate family or a business with which he is
associated, and no public official or public employee or
candidate for public office shall solicit or accept,
anything of value, including a gift, loan, political
contribution, reward, or promise of future employment
based on any understanding that the vote, official action,
or judgment of the public official or public employee or
candidate for public office would be influenced thereby.
65 P.S. 403(b).
Mr. John McDonough March 19, 1984
Page 5
(c) No public official or public employee or a member of
his immediate family or any business in which the person
or a member of the person's immediate family is a
director, officer, owner or holder of stock exceeding 5%
of the equity at fair market value of the business shall
enter into any contract valued at $500 or more with a
governmental body 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. Any contract made in
violation of this subsection shall be voidable by a court
of competent jurisdiction if the suit is commenced within
90 days of making of the contract. 65 P.S. 403(c)
C. Conclusion: You violated Section 3(a) of the Ethics Act when you voted,
as found above, to approve the installation of vending machines owned by a
Company with which you were employed. However, we will take no further action
because there is no evidence to believe that your violation of the Act was
intentional and willful. You must abide by the provisions of the Ethics Act
in your future conduct as a public official.
Our files in this case will remain confidential in accordance with Section
8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will
be made available as a public document 15 days after service (defined as
mailing) unless you file documentation with the Commission which justifies
reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code
2.38. During this 15 -day period, no one, including the Respondent unless he
waives his right to challenge this Order, may violate this confidentiality by
releasing, discussing or circulating this Order.
Any person who violates the confidentiality of a Commission proceeding is
guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned
for not more than one year or both, see 65 P.S. 409(e).
EMS /rdp
By the Commission,
aul J. with
Chairman