HomeMy WebLinkAbout339 BagnoniMr. Mario S. Bagnoni
Erie City Council
4505 Peach Street
Erie, PA 16509
Re: No. 83 -141 -C
—2 4 : C
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
September 28, 1984
Order No. 339
Dear Mr. Bagnoni :
The State Ethics Commission has received a complaint regarding you and a
possible violation of kt 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:
That you violated the confidentiality of a Commission investigation of
Mr. Robert E. Glowacki when you made public statements or information
available to the public about this investigation thereby violating Section
9(e) of the Ethics kt, 65 P.S. 409(e).
A. Findings:
1. You served as an Erie City Councilmember from at least September, 1982
until June 28, 1984 and as such are subject to the State Ethics Act.
2. On October 19, 1982, the State Ethics Commission received a sworn
complaint alleging that Councilmember Robert Glowacki had violated the Ethics
Act.
a. The complaint, received on October 19, 1982, was sworn to on October
15, 1982.
Mario Bagnoni
Page 2
September 28, 1984
b. The complaint was typed in the Erie City Clerk's office; personnel in
this office often type letters on City stationery for City Councilmembers.
3. On October 16, 1982 an article appeared in the Erie Daily Times stating
that a complaint against Councilmember Glowacki had been filed with the State
Ethics Commission. It included the following:
a. Some of the details of the complaint.
b. That you ordered City Clerk James Klemm to file the complaint.
4. In this case, letters from the State Ethics Commission notifying the
complainant and respondent that the Commission was commencing an investigation
were mailed on October 29, 1982.
a. These are standard letters required by law.
b. These letters state that the investigation is confidential and that
both parties are bound by that confidentiality requirement.
5. The first contacts by the State Ethics Commission with anyone, except by
the letters mentioned in the previous finding, were made in November of 1982.
In addition, the State Ethics Commission Investigator also notifies all
persons who are interviewed or provide information with respect to an
investigation that confidentiality is required.
6. On November 8, 1982 you had a letter to the State Ethics Commission
prepared. It included the following:
a. An attached list of all properties for which Mr. Robert E. Glowacki,
City Council President, had filed assessment appeals with the Erie County
Board of Assessments.
b. Your request that the information be filed with the State Ethics
Commission investigation.
c. This letter was received in the State Ethics Commission office on
November 12, 1982.
7. A copy of this letter of November 8, 1982 was maintained in a
miscellaneous correspondence file in the Erie City Clerk's office. This is
not a private file and all Councilmembers have access to it.
8. At an Erie City Council meeting, you made a motion that the City ask the
County Board of Assessment to "remand all appeals filed by Robert Glowacki to
the Erie County Courts for an impartial ruling."
Mario Bagnoni September 28, 1984
Page 3
9. At another Erie City Council meeting, you made remarks about Mr.
Glowacki's assessment company, including the fact that he had "got a reduction
of 3.6 million dollars" in assessments and had "netted $129,914.28."
B. Discussion: Section 8(a) of the Ethics Act states:
Section 8. Investigations by the Commission.
(a) Upon a complaint signed under penalty of
perjury by any person or upon its own motion,
the commission shall investigate any alleged
violation of this act. All commission
proceedings and records relating to an
investigation shall be confidential until a
final determination is made by the commission.
The executive director shall notify any person
under investigation by the commission of the
investigation and of the nature of the alleged
violation within five days of the commencement
of the investigation. Within 15 days of the
filing of a sworn complaint by a person
alleging a violation, and every 30 days
thereafter until the matter is terminated, the
executive director shall notify the
complainant of the action taken to date by the
commission together with the reasons for such
action or nonaction. 65 P.S. 408(a).
Section 8(a) requires that all Commission proceedings and records
relating to an investigation shall be confidential until a final determination
is made by the Commission. This confidentiality requirement applies to the
fact that the Commission is conducting an investigation. It does not apply to
the issue being investigated. To extend the prohibition of Section 8(a) to
the issue under investigation would give any person who filed a sworn
complaint and the State Ethics Commission the authority to affect public
discussion and knowledge of issues which are relevant to the effectiveness and
efficiency of governmental operations and citizens' rights to know what their
government is doing. In some cases, such an extensive, pervasive prohibition
could possibly inhibit First Amendment rights of free speech. That is far
beyond our reach and we will confine our discussion and decision here to
whether the confidentiality of the existence of our investigation was broken.
Mario Bagnoni
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September 28, 1984
In accordance with Commission regulations, a Commission investigation
does not commence until a sworn complaint is received, reviewed, a
determination made that the activities and persons involved in the complaint
are within the Commission's jurisdiction and that the complaint contains
sufficient information to warrant commencement of a formal investigation. See
- 1 Pa. Code 2.32. Within five days of commencing an investigation, the
Commission notifies the respondent and complainant that an investigation is
being undertaken and that they are bound by the confidentiality requirements
of Section 8(a). There is no reasonable basis to assume that the parties
involved in an investigation know about their obligations under the Ethics Act
until we have provided them with this notification.
In the Glowacki case, the letter notifying the respondent and complainant
that we were commencing an investigation and that they were bound by the
confidentiality requirements was mailed on October 29, 1982 and we assume
received a few days later.
The motions and remarks you made at Council meetings did not violate the
confidentiality requirements of Section 8(a) because there was no disclosure
of our investigation. The newspaper article of October 16th appeared before
our notification letters to the complainant and the respondent and before any
contact with any person who might have provided information. Under these
circumstances, we find insufficient evidence to conclude that you violated
Section 3(a) of the Ethics Act because we have no evidence that you were aware
of confidentiality requirements or that you released information to the
newspaper despite knowledge of these requirements.
The only action or document for which we find you were responsible and
which made our investigation known had occurred after the complainant and
respondent had been notified of the confidentiality requirements of the Ethics
Act was your November 8, 1982 letter. There is no evidence that the letter
was made available to the general public or processed in a manner in which it
would normally reach the public. According to our information, it was filed
in a place which was accessible only to Councilmembers and workers in the City
Clerk's office.
However, we are disturbed by the careless handling and filing of a
document relating to an investigation after persons involved were informed of
the confidentiality requirements in our Act. At this stage of an
investigation, it is important that confidentiality is maintained and
reasonable to expect that the parties involved will take steps to maintain
that confidentiality. The November 8th letter was signed by you and you were
responsible for the processing and filing. Unfortunately, you displayed a
disturbing lack of concern by having this letter filed in a miscellaneous file
which was available to other Councilmembers, staff in the City Clerk's office,
and possibly other County employees. We cannot discern whether or not this
Mario Bagnoni
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HBC /jc
September 28, 1984
action was deliberate but we are certain that your imprudence created an
unnecessary opportunity to breach the confidentiality which our investigations
require and the respondent has a right to expect. While there is insufficient
evidence to conclude that you violated Section 8(a) of the Ethics Act, we must
express our dismay and strong disapproval of your handling of the November 8,
1982 documents. A public official with your responsibilities and experience
is expected to use better judgement.
C. Conclusion: We find insufficient evidence to conclude that you violated
Section 8(a) of the Ethics Act and will take no further action on this matter.
However, we must express our strong disapproval of your handling of documents
which did pertain to an investigation of the Ethics Commission and our
expectation that you avoid similar actions in the future.
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 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).
By the Co
rber
Chairman
nner