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HomeMy WebLinkAbout590-R DodaroMr. Frank Dodaro c/o Joseph M. Stanichak 700 Franklin Avenue Aliquippa, PA 15001 Re: 86 -106 -C Dear Mr. Dodaro: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 590 -R DATE DECIDED: 12/14/87 DATE MAILED: 12/28/87 The Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. On October 20, 1987, a hearing on the matter was conducted and relevant evidence and testimony was presented. 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 member of Ambridge Water Authority, violated Section 3(a) of the Ethics Act which prohibits a public employee's or public official's use of office or confidential information gained through that office to obtain financial gain in that you voted to hire your son for a position with Ambridge Water Authority at authority meetings held on May 13, 1982, June 9, 1983, May 10, 1984 and May 31, 1985. A. Findings: 1. You have served as a member of the Ambridge Water Authority for at least the past seven years. a. You previously served on the Planning Commission, Zoning Commission and Vacancy Committee. 2. Records of the Ambridge Water Authority confirmed that since at least 1971 the Authority has hired employees for a summer employment program. 3. Summer employment listings for the authority disclosed a•Joe Dodaro being employed in 1982, 1983, 1984 and 1985. 4. You admit Joseph James Dodaro, date of birth October 17, 1966 is your son and maintains residence with you. Mr. Frank Dodaro Page 2 5. Minutes of the meetings of the Ambridge Water Authority disclosed the following: a. May 13, 1982: Twenty -eight (28) applications were received for summer employment, including one from Joseph James Dodaro, 117 N. Walnut Street, Ambridge, PA. Motion by you, seconded Smetanka that the following persons be hired from June 14, 1982 through August 27, 1982 at the rate of $4.25 /hour: Joseph Dodaro, Peter Melyk, Richard Levato, John Serak, Richard DeSalle, James Iorfido, Douglas Heitzenrater, Curtis Kiddy, Mark Mikulich, Lone Mesko and Richard Larrick. An attempt to amend the motion to include two additional persons was defeated. You voted to defeat the amendment. Roll call vote on the motion: AYES: Modrovich, Dodaro, Smetanka and Sangermano NAYS: Twocimak b. June 9, 1983: Motion Casello, seconded by you that the following persons be hired effective June 13, 1983 at the rate of $4,00 /hour: Nine names were listed including Joseph Dodaro. Roll call vote: AYES: Modrovich, Dodaro, Casello NAYS: Smetanka Citizens: Citizens question if authority is hiring under the CETA Program. You state the authority will be hiring under the Summer Youth Employment Program on the "Position Request Form" to be signed by the chairman and the local collective bargaining agent. Smetanka stated the money could be better spent elsewhere. You stated that the personnel are hired for approxifiately fifty (50) days, but the board could decide at any time to terminate the program. c. May 10, 1984: Motion by you, seconded by Sangermano that Joseph James Dodaro and James V. Iorfido be hired beginning June 4, 1984 to August 17, 1984 at the rate of $4.00 /hour, this being within the units of the budget. Mr. Frank Dodaro Page 3 You stated you would go along with it as long as the budgeted funds last. Motion you, seconded by Modrovich that the summer workers continue in thei r present empl oyment not to exceed the budgeted figure. Roll call vote: AYES: Stubbins, Modrovich, Dodaro, Sangermano NAYS: Smetanka Smetanka stated that he is voting no because we did not need them from the beginning. NOTE: The three summer employees retained are the sons of authority members Modrovich and Dodaro and then Ambridge Borough Councilman Edward Iorfido. Roll call vote: AYES: Sangermano, Stubbins, Dodaro, Modrovich NAYS: Smetanka d. May 31, 1985: Chairman Sangermano stated funds were provided in the budget to hire five people for fifty days at $4.00 /hour. Following discussion, motion Stubbins, seconded by Modrovich to hire James V. Iorfido, Joseph James Dodaro, Daniel Modrovich and John Serak as summer help from June 3, 1985 through August 9, 1985 fifty (50) days at $4.00 /hour, and an additional person, whoever Mr. Smetanka selects. Roll call vote: AYES: Stubbins, Dodaro, Modrovich Sangermano NAYS: Smetanka e. August 3, 1985: Correspondence from George Abraham, President, Local Union #1051, AFSCME read which stated Local 1051 has no objection to the three summer workers (Dodaro, Iorfido, Modrovich) currently in the employ of the authority to continue working under the current wages and conditions through the remainder of the month of August. Mr. Frank Dodaro Page 4 f. October 10, 1985: "ITEM NO. 10" TO: AMBRIDGE WATER AUTHORITY FROM: GEORGE ABRAHAM, PRESIDENT, UNION LOCAL x1051 AFSCME RE: Current labor agreement states that the employer must make a decision on the status of summer employees at the end of 120 day period. Mr. Stubbins stated that he went along on the first recommendation of the board and summer is now long gone. The authority is faced with a deficit and the board should take appropriate action to do what we have to do. We are looking at 200 to 250% rate increase. Mr. Stubbins moved seconded by Mr. Smetanka that all summer help be terminated. The motion was passed on roll call vote as follows: AYES: MESSRS: Stubbins, Smetanka and Sangermano. NAYS: Modrovich and Dodaro. Mr. Dodaro stated that there is truth to what Mr. Stubbins says, but the summer help was originally hired for 50 work days and Mr. Stubbins agreed. Then it was extended to the end of August and then a motion was adopted not to exceed the $10,000.00 budget figure. He disagrees with Mr. Abraham because in summer help, the 120 consecutive work days don't exist. He understands a grievance is being made. Mr. Stubbins stated that the board hired a summer help full -time and increased the wages to $8.00 per hour to incur more cost to the authority. The board is in no position to do more hiring. Mr. Sangermano, sitting as a member of the body, stated that we should get our heads together. We have been asked to wait for the union meeting, and he is not in favor of laying off 5, 6 or 7 people. He would like to recommend that effective Monday morning, the managers, secretaries, clerks, and all personnel go on a 4 day per week until the end of the year until we recoup what we are losing. Mr. Sangermano then moved, seconded by Mr. Stubbins, that all personnel go on 4 days per week to recoup what we are losing and with no lay -offs until the end of the year and with no days off.: The motion was defeated on roll call vote as follows: Mr. Frank Dodaro Page 5 AYES: MESSRS: Stubbins, Sangermano. NAYS: Dodaro, Smetanka and Modrovich g. October 17, 1985: The chair stated that the purpose of this meeting is to discuss and take action on matters concerning the personnel of the Ambridge Water Authority and on matters related to their employment. You reported on the meeting held last night with the bargaining unit, which they requested. The question discussed was what could be done to help resolve the problem the authority will be facing with the loss of Armco. The union asked that they not take any action tonight, to leave the door open and to continue negotiations. For a starter, the union would relinquish the 4% increase for 1986. They admitted we have a problem. Mr. Stubbins also attended the meeting. You continued that you would bring back the report to the board and will continue to negotiate. You will not surrender any management rights under the agreement. If we take any action tonight, the door w i l l be closed and they will withdraw the offer. You added that it is almost impossible to resolve the problem in one meeting, or tonight; it is a problem for next year. Mr. Stubbins stated that the 4% withdrawal is only if there is no layoffs or no hiring. They will fight the board on a four day work week, and they did recommend that we may be acting hastily and should check all areas before we jump the gun. Mr. Stubbins did recommend a ten per cent reduction of salary. You felt that we should take no action tonight and he wants to continue to negotiate. Mr. Stubbins and he are not satisfied with the 4% and are after other things besides the 4% withdrawal. Mr. Stubbins then made a motion, seconded by you, that we direct the engineer to see if we can operate on two shifts per day or seven hour day, how many hours per year or whatever. The motion put to a roll call vote was passed as follows: AYES: MESSRS: Stubbins, Modrovich, Dodaro and Sangermano. NAYS: None ABSENT: Smetanka. Mr. Frank Dodaro Page 6 6. You provided the following information to an Ethics Commission investigator on February 25, 1987: a. Your son Joseph J. Dodaro began working for the authority at age fifteen. b. You may have made the motions to hire your son. c. You take the position that it was your son, not you, who was enriched by this position. You stated that your son had his own bank account and used the funds received for college expenses. d. You stated that you were never the deciding vote in the hiring process and the vote was always for a group of applicants, not just your son. e. You admitted the authority never advertised the vacancies for summer empl oyme nt . f. You stated the solicitor attended the meetings and never advised you not to vote. You state that you did not willfully, intentionally or knowingly violate the Ethics Act. 7. By correspondence dated May 20, 1986, Authority Solicitor Robert Taylor provided the following information: a. Joey Dodaro was hired as summer help al ong with other individuals for work during the summer months by the Ambridge Water Authority. b. Joey Dodaro was not hired as a regular member of the Ambridge Water Authority, either in a permanent position or a temporary nor part -time position. He was hired only as summer help, and as such, his hiring, along with other summer help, did not fall under the wage guidelines as per the Labor Agreement. He was hired for periods not to exceed the 90 -day period over the summer months. c. The said Joey Dodaro is now attending Community College of Allegheny County and lives at home. He is majoring in business administration and he has paid his own way through college through his earnings and salaries and also, he has separate tax returns as can be provided. His summer help did not benefit his parents, his father, Frank Dodaro, Board Member of the Ambridge Water Authority. d. Joey Dodaro was hired as summer help on May 13, 1982 along with 12 other individuals by the Ambridge Water Authority. Frank Dodaro's vote was not the deciding vote on the Board of Directors' of the Ambridge Water Authority. Vote 4 to 1 Mr. Frank Dodaro Page 7 e. Joey Dodaro was hired on June 13, 1983 as summer help along with 9 other individuals by the Ambridge Water Authority and Frank Dodaro's vote as a member of the Board of Directors' of the Ambridge Water Authority was not the deciding vote. Vote 3 to 1, 1 absent. f. Joey Dodaro was hired as summer help in 1984 by the Ambridge Water Authority along with two other individuals and Frank Dodaro's vote as a member of the Board of Directors' of the Ambridge Water Authority was not the deciding vote. Vote 4 to 1. g. Joey Dodaro was hired on May 31, 1985 as summer help by the Ambridge Water Authority along with five other individuals and Frank Dodaro's vote as a member of the Ambridge Water Authority was not the deciding vote. Vote 4 to 1. 8, Wage and Tax Statements (W -2 forms) obtained from Joseph Dodaro, Authority Business Manager, disclose the following wages paid to Joseph Doda ro. a. 1982 - $1,836.00 b. 1983 - 1,328.00 c. 1984 - 1,726.00 d. 1985 - 1,888.00 9. At a hearing before the Ethics Commission, you testified as follows: a. You stated that you voted to hire your son because you wanted him to know what it was like to work for a living and earn money. b. You also stated that it was the practice of the authority members to take one or two "picks" for the summer employment positions. c. You testified that you voted for the appointment of your son because you wanted to vote for him because he was your son. d. You further testified that the solicitor, after reviewing the meeting minutes, never informed you that there was a possible violation of the Ethics Act or that there was a conflict of interest. e. It was stated by you that all the boys who were hired for summer employment performed their work and created no trouble or problems. f. You also stated that it was the practice in Ambridge for public officials to have certain people come in and state that they wanted jobs for their children and that it was also the practice to hire relatives or members of one's immediate family. Mr. Frank Dodaro Page 8 g. You admitted that you voted to hire both the son of Mr. Modrovich and Mr. Iorfido who voted to hire your son. h. You stated that now that you know that there is an Ethics Commission, you clear matters with the solicitor who is directed to get rulings from the Ethics Commission. B. Discussion: As a member of the Ambridge Water Authority, you are a "public official" as that term is defined in the State Ethics Act. Accordingly, your conduct must conform to the requirements of the Ethics Act and the restrictions therein are applicable to you. Section 3(a) of the Ethics Act provides: 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). The Ethics Act defines "immediate family" as including: Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Factually, you voted for the employment of your son with the Ambridge Water Authority for four separate periods of employment. The positions were not advertised and you voted for your son as part of a group of applicants. It is also noted that on October 10, 1985 when a motion was presented to terminate summer help, you voted against the motion. You stated that you were not advised by the solicitor to abstain from voting and further your vote was not the deciding vote to employ your son. Your son resided with you and was a minor during the 1982, 1983, and 1984 periods of employment, but was of majority during the 1985 period of employment. This Commission has addressed cases with similar facts and issues. In O'Reilly /Johnston, 83 -012, this Commission opined that the hiring of a son who was neither a minor nor a dependent required the public official to abstain in the hiring process of his son. This Commission concluded that, although there was no 3(a) violation in that case, the appearance of a conflict with the public trust was created. Per. Frank Dodaro Page 9 In Rockovich, 356 -R, this Commission considered the question of whether the mayor of a borough violated section 3(a) and 3(c) of the Ethics Act when he voted both to appoint his wife as building inspector and also voted against limiting her salary. This Commission found that financial gain was realized when the mayor voted against limiting the salary of his wife, and consequently, directed the mayor to remit that financial gain to the borough. Similarly, in Rupinski, 338, this Commission found that the voting by a borough councilman on the hiring of his son as an employee of the street department created the appearance of a conflict of interest, even though there was no 3(a) violation, being that the son was neither a minor nor a dependent. In the instant situation, your son was a minor dependent for his periods of employment for the years 1982, 1983, and 1984 but was of majority for 1985. You should have abstained from voting on the employment of your son for all four periods of employment in question. Clearly, your actions in 1982, 1983 and 1984 were in violation of the State Ethics Act, as you used your position as a member of the Ambridge Water Authority to obtain empl oyment for your mi nor dependent son. The State Ethics Act provides as follows: Section 9. Penalties. (a) Any person who violates the provisions of Section 3(a) and (b) is guilty of a felony and shall be fined not more than $10,000 or imprisoned for not more than five years, or be both fined and imprisoned. 65 P.S. 409(a). Section 9. Penalties. (c) Any person who obtains financial gain from violating any provision of this act, in addition to any other penalty provided by law, shall pay into the State Treasury a sum of money equal to three times the financial gain resulting from such violation. 65 P.S. 409(c). The Act further authorizes the State Ethics Commission to make recommendations to law enforcement officials for criminal prosecution arising out of violations of the law. In McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct, 529, 466 A.2d 283, (1982), the Commonwealth Court of Pennsylvania also confirmed the authority of the State Ethics Commission to require an official who obtained a financial gain in violation of the Act to make restitution of such gain and, thereafter, recommend no further action. Mr. Frank Dodaro Page 10 The foregoing principle was recently reaffirmed by the Pennsylvania Commonwealth Court in Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). In the cited case, the Court held inter alia that a township supervisor violated Section 3(a) of the Ethics Act when he received a salary for the position of secretary /treasurer which had not been set by the auditors. The Court, in affirming the Order of the Ethics Commission which required a restitution of the financial gain, noted on page 539 of its Opinion: "Section 7 of the Ethics Act instructs the Commission to investigate situations where there is a reasonable belief that financial conflict may exist, and if conflict is found, to require the offender to remove himself from the conflict without gain." This result is appropriate in the instant situation. Your son received a total of $4,890.00 daring the years 1982 through and including 1984. This gain was received as a direct result of your violation of the Act. It is argued, however, that there can be no 3(a) violation in this instance because the action of voting for your son was not purportedly willful, intentional or knowingly in contradiction to Section 3(a). Decisional law established that the element of intent is not a prerequisite to a 3(a) violation. See Yocabet, supra, wherein the precise same argument was made and rejected by the Court: "Petitioner next argues that since it was not his intention to use his office to obtain financial gain, he could not be in violation of Section 3(a) of the Ethics Act. This argument does not withstand analysis. * * * Accordingly, the Commission did not err in determining Petitioner violated Section 3(a), even if he did not lntend'to." Id. p. 539. You further assert that there can be no violation because your votes in the three years in issue were not the deciding votes. However, this Commission in McCaigue, No. 392, specifically rejected the foregoing argument because there must be an abstention in voting or participating in any matter wherein the public official has a private interest. It is also argued that there was no advice from the solicitor stating that your vote would be improper. It has been held that even if a solicitor gives an opinion that a certain course of conduct is proper, such advice is unavailing regarding potential violations of the Ethics Act. See McCutcheon, supra. A fortiori, since the solicitor gave no opinion, whatsoever, in this case, there can be no argument in this regard. Mr. Frank Dodaro Page 11 Lastly, you state that your son retained the money he earned while working for the authority for his educational expenses. It is quite obvious that this money which your son retained for working is equivalent to an equal amount of money which you now would not have to provide for his education. Thus, your son, being a member of your "immediate family" was directly enriched and you were also indirectly enriched because you now do not have to commit part of your financial resources to your son's education. Under these circumstances, you clearly violated Section 3(a) of the Ethics Act. C. Conclusion and Order: 1. As a member of the Ambridge Water Authority, you are a public official as that term is defined in the State Ethics Act. 2. You violated Section 3(a) of the State Ethics Act when you used your public office to appoint your minor dependent son to a position of employment with the authority in 1982, 1983 and 1984. Such actions were a use of public office to obtain a financial gain for a member of your immediate family. 3. The financial gain received, as a result of your actions, totaled $4,890.00. 4. You are hereby ordered to make restitution in that amount within thirty (30) days of the date of this order. That amount should be forwarded to the State Ethics Commission, made payable to the Ambridge Water Authority. 5. Failure to comply with the terms and conditions of this order will result in a referral of this matter to the appropriate law enforcement authority for further review and consideration for either civil or criminal action. 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 . 5 business days after service (defined as mailing). 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). The confidentiality provision does not restrict respondents consultation with legal counsel. By the Commission, G. Sieber Pancoast Chai man