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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