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HomeMy WebLinkAbout973 BonnerIn Re: James Bonner STATE ETHICS COMMISSION 308 FINANCE BUILDING FMARRISBURG, PENNSYLVANIA 17120 File Docket: 94- 023 -C2 Date Decided: 05J040.5 Date Mailed: 05/16/95 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Boyd E. Wolff The Investigative Division of the State Ethics Commissidr,1 - cQn4ngted an investigation regarding a possible violation of thM State Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 et .a, Written notice of the specific allegation(s) was served at the °gommencement of the :investigation. A Findings Report was ist3iilid and served upon completion of the investigation which constituted the Complaint by the Investigation Division. An Answer Wart: filed and a hearing was held. The record is complete. This adjudication cal the Commission is hereby issued which sets forth the iudividtial Allegations, Findings of Fact, Discussion, Conclusions of Law and Order. This adjudication is final and will be made available as a public document fifteen days after issuance. HoiveVet/ reconsideration may be requested which will defer public releas& Of this adjudication pending action on the request by the Commissioh. A request for reconsideration does not affect the finality of this adjudication. A reconsideration request must be received &t this Commission within fifteen days of issuance and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code 521.29(b). The files in this case will remain confidential in accordance with Act 9 of 1989, 65 P.S. 5408(h). Any person who viblates confidentiality of the Ethics Law is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year, 65 P.S. 5409(e). Confidentiality does not preclude discussing this case with an attorney at law. Bonner, 94- 023 -C2 Page 2 I. ALLEGATION: That James Bonner, a public official /public employee, in his capacity aS 8i c'o n.cilman for Wilmerding Borough, Allegheny County, violated provisions of the State Ethics Act (Act 9 of 1989) when he participated in actions of council which resulted in financial benefit to the borough solicitor, who employs his wife: Section 3(e) of Act 9 of 1989 provides: SectiOn..3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. 6403(a). IX. FINDINGS: Section 2. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a ,member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having t a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of -an industry, occupation or other group which includes the - public official or public employee, _a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. 8402. A. PLEADINGS: 1. Ozi April 13, 1994,- the Investigative of the State Ethics Commission - initiated -a preliminary inquiry into allegations that Respondent, James Bonner, violated provisions of the State Ethics At a. The preliminary inquiry was initiated as the result of a sworn COmp1aint. 2. The Executivre Director of the State Ethics Commission Bonaeir:, Page 3 authorized • oa mn"enc ement oaf the preliminary inquiry. 3. Upon' completiiOn of the preliminarin i cy* tom atatter; was reviewed by the Executive Director at the Stat.. Et., cs Cdmdiedied, 4. On Jdae 14, 1994, a letter was forwarded to the. Respon by the ggedueite6 Director of the State Ethic Coam s.¢jo4 informifig Reeppondent of the fact that the 1 v ltiga * Division of the State Ethics Commission was conmte *Cis$ a full investigation of the matter. a. Said letter outlined the nature and scope_ of the allegations and further delineated the appiigahle, sections of the Ethics Law in question. b: Said letter was forwarded return receipt requeste ;. 5. The full investigation was commenced at the direction of the Executive Director of the State Ethics Commission. 6. A 90 day status report was forwarded to the Respondent and Complainant on September 12, 1994. 7 . On November 14, 1994, the Investigative Division of the State Ethics Commission issued the Investigative Complaint and Findings Report to the Respondent. a. Said Findings Report was issued within 360 days of the initiation of the full investigation. 8. James Bonner has served as a Borough Councilman for Wilmerding Borough since 1971. a. Bonner has been the Vice President of the Borough Counci and the Chairman of the Public Works since 1992. b. Bonner served as the President of the Borough Council from approximately 1978 through 1984. 9. James Bonner has been married to Carol Bonner since at least 1973. 10. Carol Bonner has beets employed with the law firm of Bruce Dice & Associates since 1987. Carol Bonner's position with Dice's law firm has been as a paralegal. 11. The law firm of Bruce Dice & Associates has served -as he Wilmerding Borough Solicitor since 1984.. Bonner, 94- 023 -C2 Page 4 12. Officers are appointed by the Wilmerding Borough Coundil every two years at the reorganization meetings. a. The officers include the solicitor;, engineer and secretary b. Officers serve for an indefinite term ;at tWpleadtire of council. • . ., . c. If - no person is appointed to the ' position, the person currently holding the position continued to eQ to €nor indefinite term at the pleasure of Council. 13. Wilmerding Borough Council Reorganization meetings dtincidd with the election or re- election of ' coundil IdAMbets as it result of the municipal elections which take place every twe Years. 14. Minutes gf the following reorganization meetings fbk the Wilmerding aorough Council from 1988 through 1992 i1diaade that council member James Bonner voted in favor of appoin ing Bruce Dice se solicitor. a. January 4, 1988: Roll call: J. R (Zames1 Bonner, present; G. Nests, prteelt; C. Ricl ey,,p,:ces•stt; R. Gojkovich, present; a. Price, pt'esent; E. Dee ihaa,. absent; E. P. Henry, present; E. O'Connell, present. Mayor G. Homitz was also present. Application wan read from Bruce Dice & AS'4iates fot Borough Solicitor. Councilman Michael Volpe. pe. OCapteti we should or seek some resumes for the i3osifaon;- of solicitor and', engineer. We should set up* some adz of job description.. What encompasses the s64-iii-1 d' "'s retainer. Them wars, no second to the motion. Mbtidif by Bonner, second. byr N'esta to hire Brucae Dice' & Associated as borough solicitor. Members voted approval. b. January. 2 ];.9,901: -Roll call: J. (James S_oaner,- present; C. Rich y, present G. } esta, present;- R., Gojkovich, absent; G. Irriae, peeeMbtl k: Volpe , . pre zzt ;; E.. Henry, present;: E".• ci C e pree nt . Applications; were read' for the pos ='tion of bb b$.igh- soaicit . Receltred one. appiiaation' fro Brttc - Dice GI As sociates:. Motiron , byy Ric1±ey, se by Neste, to Beer,, 94 -0 ,-C2 P age 5 appoint BVITcoN Dice & Associates as the borough solicitor. Vaxabetr$ volt-ed approval. c. January 6 1992: Roll call: S'. S?magat, resent ; Q. Richey, preset) G. Nes pre eut;p J'. (! Jamesi) Ennyer, present,. E M Hez y, prsaet�t, M. Volpe,. present; G. Price, pr ►aex Fr p,' , present; Mayor G. Homitz was aloe prese The amendment reads that we hire Bruce, Dice as borough solicitor. Roll call: Steve Shurgot, no C. Richey,, yes; G. Neste yes;. J. (James) Bonner, yes; E. Henry_, yes; M. Volpe, no; G. Price, yes; E. O'Connell, no. Motion passed to hire Bruce Dice as borough solicitor, 5- 3. d. Bonner admits the above but adds the following arguments: (1) Such-conduct already was ruled de minimis by letter of John J. Contino, Executive Director, dated April 27, 1992. (2) Bruce Dice rendered an conflict for Bonner to E. Dice and Associates 594 A. 652. a. February 4, 1992: opinion that there was no vote for the firm of Bruce based upon Dodaro .v. SAC (3) No distinction exists as to an affirmative vote to hire Dice and a negative vote not to hire another person. (4) When Council. President asked if Council wanted to vote on any other solicitor applicants, no motion was made. 15. Minutes of the Wilmerding Borough Council for February 4, 1992, meeting reflect another vote was taken to.appal -at Dice as the borough solicitor because a conflict of interest issue was raised with James Bonner voting to appoint Dice #s solicitor. Roll call: S. Shurgot, absent; C. Richey, present; G. Neste, present J. (James) Bonner, present; E. Henry, present; M. Volpe, present; G. Price, present; E. O'Connell, present. Mayon G. Homitz was also present. Bonner, 94- 023 -C2 Page 6 Mr. O'Connell; we have a motion on the :floor to hire ll Bruce Dice as solicitor. Roll - ca:' S. Shurgot, abstain; C. Richey, yes; G. Nesta, yes; J. (James) Bonner, abstain; E. Henry, yes; M. Volpe, 'no, until we get everything in writing. G. Price, yes; E. O'Connell, yes; Motion to hire Bruce Dice as solicitor passed, 5 -1- 2. Bonner asserts that the above was not a vote to appoint but a vote to reaffirm the vote as to Dice as solicitor. 16. In 1994, Wilmerding Borough accepted applications for the positionq pf secretary, solicitor and engineer. 17. Wilmerding Bprough Council received letters from eight .attorneys interested is the position of borough solicitor. 18. The eight applicants for the position of borough solicitor submitted the following: a. Frank Boles submitted a bid for a flat retainer fee of • $1200.(10 per month. Boles indicated these services would include, but not be limited to attendance at the regularly. sc meetings, review legislation, review municipa contracts, labor negotiations, arbitration, secretarial services, litigation. and - render general legal advice tg the governing ' body, including telephone c,onaultations. In addition,. Boles wanted to retain the ability to negotiate a separate agreeme for major uudt*Xisags that would require an excessive amount of la,* services such as bond issues and majior litigati.mn. b Robert Wrataher submitted a bid in the amouizt of $1300.,40 pen mpa matcher_ indicated that there would be no addit,ionali or hourly billing of legal. sees . Wratcher added they items that would not be included in this proposal would include filing feesx,. record costs and stenographer fees. c.. John Finuegan submitted a bid ,to handle the legal matters for $2,000..Q0-) per month. Finnegalt indicated in the only matters which lie would exclude: f7'om this fee would. be any bond issues, which would_ reguixe;. additional work and protracted litigation which- could, result in extensive trial or trial prepara*t,p . d. John- Ga b st- s bm3.trted a bid to- liandlor all, matters for the, borough for a fia rJ . t nine fee of $2', 000.00' per month . Falco. Muscante ofd the. 1 firm-, of Petragliw &' Muscante Bonne 94 n 223, -C2 Bonne, 1 submitted a proposal to handle ally legal services for the borough at $18,000.00 per year prorated for the balance of the year. Musc indicated the retainer would be paid on a monthly basis at a rate of $150Q..00. Musoamt;e added that it was customary the flat retainer fee, would encompass all legal services with the exception: of litigation which is billed separate/you an hourly basis. Bruce Dice submitted a bid of $2500.00 per month. Dt=m indicated this would include all legal service-, including but not limited to boards, commissions, arbitrations, quasi /judicial board, agency board or any law suit through. the Court. of Common Pleas.. Dice added this, fee would also include any case where litigation might arise. Girard: Evashavik submitted a proposal to provide all, legal services for the borough for an annual fiat feet of. $13,000.00. Evashavik requested that he would have the option to approach the council members in the event a matter arises which is very extraordinary. h. Albert Zangrilli submitted .a bid proposal to provifds legal services for a monthly retainer fee of $65:0.00%. Zangr-ill i indicated the retainer covers the provision, of legal advice pertaining to labor contract negotiatis and the preparation of any and all labor contracts. - Zangrilli added the retainer fee does not cover taw actual negotiations themselves. Zangrilli indicated labor arbitration, labor negotiations and law suits are excluded from the retainer and that these legal services would be required. The charge would be $65.00 per-hour. 19. Minutes of theWilmerding,Borough Council meeting- for March, 21, 1994, reflect a motion made to- appoint Girard Evashavik as the borough solicitor was defeated. a. March 21, 1994: Roll call: L. Sites, present; G.-Nesta, present; AL. Tomosky, present; J. (James) Bonner, present; M. Volpe - present; E. O'Connell, present; S. Shurgot, present Mayor G. Horvitz was:also present. Motion by Sites, second by Tomosky to hire Evashavik Solicitor at $13,000.00 a year, roll call: L. Sites:;,. yes; G., Nesta, no; :.A. Tomosky, yes; J. (James) Bonner, no, because it -has been almost ayear since I asked him to do that Van Norman property;• M. Volpe, yes; E.. O'Connell, no; S. Shurgot, no. Motion was-defeated tom hire, Evashavik, 4 to-3. Bonner, 94- 023 -C2 Page 8 20. There were no ether motions made by the Wilmerding Borough Council to appoint any pf the other attorneys who had submitted a bid €Or borough solicitor. a. It is argued by Bonner that no other motions were made by Council and that no Council members - rougbt forward any other names for solicitor. James Bonner voted with the majority on the motion to defeat E rasliavik v.icla resulted in the retention of Bruce ?ice as • solicitor, a. James Boianer' $ vote was necessary to defeat the motion. b. James Bonner spoke out against Evashavik when the motion wits made. c. Bonner was critical of a case (YanNorma t1}at E,vast}av*it shad handled as Solicitor for. the East Allegheny School, Ai strict, • 4. Bonner argues that although his vote indirectly resulted in Dice remaining as solicitor ae per a prior arrangemep.t Council chose not to vote on any other app,; scan s 22. ,fames Bonner »e eyed that Evashavik ,should Aq_t 'he . ,ppointed snaltircc.'t r becauffle Bvashavik •serves as the Sps4od for the Boot .11,114413,wpy faatip01 District and was the attoriey for the 'f aatigi:l � f Wjamending Borough . Hike ',Nipe . 23. •..Canal acq near bele rno !pecuniary •interest in the ,law firm of Brice B. ; _ice ,Associates. _ 24.. 'Caro. ,Bomar ;ids • permitted -to swot Qn :mactl:tt. er-s t 7.ving Wilmer ing :BoX.Pugh . 2'5 Carat Bonner ii.13 - primarily pi] for personal : injury cases. 26 W -2 Wage 'Tax :Sta of ilirucge -E. Dice t o Associates ssociates indicate the - compensation :carol :Bowler : receiv -ed from 1991 through 1993: a.. 1:5fi7, s 42, 413 .00 - b. 119.52 c. 1 43,4 f.9'0'0 ,1166 '27. " ay°ro]ll .records of _aruce -g. --Di -cue •& sagcia - tom -inch ca a 423e Bonner, 94- 023 -C2 Page 9 April 2,000.00 May 2,000.00 1,572.00 June 2,000.00 Total: $14,000.04 $4,5 28. Carol Bonner had a reduction in salary effective April 1, 1994. a. Rene Dice, wife of Bruce Dice, indicated an austerity program was started with the law firm in order to curtail some of their costs. 29 Records of Wilmerding Borough indicate the following compensation Bruce Dice received from Wilmerding Borough as borough solicitor from 1991 through 1993. a. 1991 - $33,479.28 compensation Carol Bonner has received for 1994: Month Gross Pay Contingency Peep January $2,666.68 $1,197.00 February 2,666.68 March 2,666.68 1,761.30 b. 1992 - $38,749.75 c. 1993 - $36,651.29 . Records of Wilmerding Borough for 1994 indicate Bruce Dice has received $23,782.21 as borough solicitor through September 30, 1994. 31. Bruce Dice has charged the borough a monthly retainer fee of $100.00 per month and an hourly rate of $70.00 an hour. a. It is stated by Bonner that Dice submitted an application to Council to change his fee arrangements which was rejected thereby continuing Dice as solicitor under the prior contract terms. 32. Bonner proffers the following defenses /new matter. a. When a prior complaint was filed against Bonner for voting with the majority for Dice, John J. Contino, Executive Director, issued a letter dated April 27, 1992 that the activity was de minimis and that a conflict did not include an action having a de minims economic impact. b. If voting to hire Dice was de minimis, then voting against hiring a different solicitor is de minimis_ Bonner, 94- 023 -C2 Page 10 c. If the negative vote is not de minimis, then Bonner relied on the April 27, 1992 letter to his detriment. d. When no contract was awarded to Evashavik as solicitor, Dice continued to serve as solicitor. under a prior contract. e. The Ethics Law allows a public official to participate as to a contract in which a spouse has an interest provided: (1) All solicitor proposals were reviewed at public meetings so as to satisfy the above requirements. (2) The contracting requirements of the Ethics Law have been met. B. TESTIMONY AND EXHIBITS 33. Robert Caruso is the Deputy Executive Director of the State Ethics Commission. a. Investigations are initiated by sworn complaint or own motion by the Executive Director. b. No member of the State Ethics Commission is involved in the investigative process. (1) The Executive Director has authority to approve the institution of a preliminary inquiry oz.; full investigation. - c. The instant case was instituted through the receipt of a sworn complaint. (1} The photocopy of the complaint which an e xhibit is redacted to protect the identity of the complainant. . A. preliminary investigation was previously_ instituted against Bonner relating to Bonner voting in`favor of a motion to hire the solicitor who employs Bonner's, wife. • • (1) Since the vote was 7 to 1 to Dire, the Investigative Division believed the act inn had a de minimis economic impact. (2.) That preliminary inquiry was closed for the reason noted in subfinding d(1) . e. The difference between the first and second investigation was that the vote was 7 to 1 in the first instance and 4 Ho a .r 94- 4023 ..C2 Page 1I to 3 in the second. The 1994 vote by Bonner' was not a vote to hire Dice but a vote not to hire Evashavik. Dic'e's firm would receive a retainer if hired which ddns`tit.ttes an economic impact. e. The spouse of Bonner has no ownership interest in lice and Associates. '3`4: Geraldine Homitz is the Mayor of Wilmerding Borough in Allegheny County. a. When there is a tie vote by council, the mayor may vote to break the tie or the matter may be deferred from 5 to 10 days. (1) If a tie vote is deferred and if council does not resolve the tie, the mayor votes to break the tie. (2) As to. any tie for solicitor, Homitz would not vote for Dice. b. In. March, 1994, the issue of borough solicitor was considered. (4) (5) (1 (2) (3) A vote was taken to hire Evashavik. (a) The vote was 4 to 3 not to hire Evashavik. (b) As a result of the vote, Dice was retained as solicitor. Die could be removed at anytime as solicitor. Homitz reviewed all of the solicitor applications to obtain information in case she would have to Vote to break a tie. If . there were no agreement as to a Dice would be retained. If another attorney would be voted Dice would no longer be solicitor. new solicitor, as solicitor, c. Bonner was accused in the newspaper by Homitz of cheating her out of a vote as to the solicitor. d. Several. years earlier, Dice represented two counci1meiisbers in a lawsuit against Homitz. Bonner, 94- 023 -C2 Page 12 (1) Homitz was required to pay approximately 8900%00 to the Borough in expenses as to other litigation. e. If there were a tie vote to hire the solicitor, flomitz believed that Council could discuss Bonner's connectibn to Dice and Councilmember Volpe's ooanection to Evashavik. 35. James Bonner is a supervisor in the :,Property Assessment Department in Allegheny County. a. Bonner has been a Wilmerding Borough Councilmem'ber• a1 to 1971 or 1972. b. Dice became solicitor in early, 1984. c. Bonner voted to retain Dice as solicitor. (1) On one occasion Dice did not vote for Dice. d. Prior to the nomination of Evashavik in 1994, no one had been placed in nomination for solicitor to replace pieta. e. A reorganizational meeting occurs every two years at the borough. (1) The positions of solicitor, seCretary, etc. were reestablished. (2) Appointees serve at the pleasure of council. f. In 1994, proposals were received from eight attorneys bidding on the position of borough solicitor, (1) A motion was made to retain Evashavik for solicitor. (a) Bonner voted against hiring Evashavik, (1) Evashavik was the scliditir far East Allegheny School nisttict and Wilmerding Borough was part of that school district. (2) Evashavik represents Mr. Volpe on issuet against the Borough, g. In a January, 1995 meeting, a vote wan taken to retain Evashavik as solicitor. (1) Bonner voted no for' the reasons in subfindifg f(1) (a). Aggggr 54- x023' -C2 Page 13 h. Dice hired Bo3e4 s wife in 1987 on a part -time basis. (1) At a social dinner, Bice e asked about Bonner's' wife who was terminated at '(Tes'tinghc se Airbroke. (a) When Bonner advised that his wife was working and going to school to obtafn a paralegal certification, Dice stated that he was locking for a paralegal and that he would like to talk to Bonner's Wri. f e . (2) Bonner did not approach Dice to hire his wife. 1. Bonner and his spouse have been married 21 year jointly owning their home and at least one bank account. (1) Bonner's spouse's paycheck is prahably deposited in their joint bank account. (2) Bonner's spouse helps in support of the household and daily financial matters. Wilmerding Borough pays for legal services rendered. k. Bonner had no further discussions with Dice after Dice asked Bonner to have his spouse contact Dice. 1. In January, 1995, . Bonner voted to accept a proposal of Dice for a flat fee of $20,000.00 per year for legal services. (1) The vote was 4 -3. (2) The vote reduced the salary of Dice whose fees generally were in excess of $30,000.60 per year. m. As to the prior investigation, Bonner states that the issue was a conflict as to his voting to hire Dice who is the employer of Bonner's spouse. (1) When Bonner received the letter advising of the termination of the investigation, on a de miiniris basis, Bonner states that he was exonerated. (a) Banner states that he concluded that he could vote. (b) Bonner received nothing further from the State Ethics Commission between the April 27, 1992 letter and the Grote in March, 1994. Bonner, 94- 023 -C2 Page 14 36. Carol Jo Bonner is the spouse of Bonner. a. Carol Bonner is employed by lice and Associates as a paralegal since 1987. b. Carol Bonner has an associate degree as a paralegal. c. Bonner told his wife that when he had dinner With Dice, Dice asked how Bonner's wife was doing. (1) When Bonner told Dice that Carol Bonner was in a paralegal program, Dice said he Vass looking fair a paralegal. (a) Dice told Bonner that Dice lika to talk to Carol Bonner after she gbt her paralegal certification. d. When Carol Bonner was hired part-time she knew Dice was Wilmerding Borough Solicitor. e. Carol Bonner became a full -time employee foe Dice In the Fall of 197 f. Carol Bonner as a paralegal does hot t'ibrk On matters relating to Wilmerding Borough. Carol Bonner has no ownership inter&et in -Dice and Associates. g• h. At Dicta and Associates, Carol Bonnner took a pay Cat in March, 1994. Al) One secretary was laid off. (2) Another secretary left because she could not take less money. 37. Exhibit R - is a letter dated April 27 1992 from Jehn J. Contino, Executive Director,,to Slider. a. - The letter r•oitee the allegation concerning a 'V'ialation of Section 3(a) of Act 9 of 1989 regarding Bonner's participation to hire the law firm that employs his wife as borough solicitor. (1) The letter advises that no further action would ensue because a conflict does not include ah action having a de mini2ie sddnomic impact and the activity was de minimis in nature. Borer,, 94- 023 --t2 page 15 3 the miz utes . dt the W lmerdiing' Bo tigli- f Janlikr9 1 1: 1994 I.D. E�eh�b t' 1'° refla'ct x`nte alia action' to appoint a committee' to deve3o descra.txoasv f^or all' bbraigl jiffs . a . Action Ovals taken to t le- re -apt biro hts and to 39. The Wilmerding Borough minutes of- March' 21, 1994 =, I'. D. Exhi reflect falter alma• consideration' of the matter of the Bot'oikh' solicitor. (2) Questions were raised as to some solicitor applicants having conflicts in that they represented other municipalities. (3) Concerns were raised as t� bids in that some had flat rates while others had charges for certain activities. (4) Questions were raised about some attorneys having less experience than others. 40. The December 27, 1994 minutes of Wilmerding Borough reflect a discussion about obtaining a fixed figure of $20,000.00 for services as borough solicitor. a. Bonner notes that the . offer was made. by the solicitor in the last year but Council voted not to accept. 41. The. Wilmerding Borough minutes for January 3, 1995 re €-lect action.as to the position of the Borough solicitor. a. The bids by eight attorneys for the solicitor position were reviewed. . The motion to hire Evashavik as licitor jas defeated in a 4 -3 vote with Bonner voting against the hiring. c. Discussion occurred among the councilmembers about the submitted bids. (1) Concern was raised because some bids had an option for additional compensation as to .extraordinary matters. a: Motion to hire Evashavik as solicitor failed in a 4 -3 vote. Motion to accept a flat fee of $20,000.00 from current solicitor (Dice) passed in a 4 -3 vote. Bonner, 94- 023 -C2 Page 16 (l ) Bonner voted with the majority to accept the $20,000.00 as "yearly salary for solicitor. t(a) III. DISCUSSION: Bonner stated that his vote in the prior year to reduce (Dice's) salary to $2,0,000.00 was 'overridden, that is, he was in the minority. As a councilman for Wilmerding Borough, Allegheny County, Dates Bonner, herei nafter Bonner, is a public official as that term is defined under Act 9 of 1989. 65 P.S. 8402.. As such, his s' conduct is sub ect to `tie. provisions of the ' Ethic Law and the restrictions therein are applicable to him. Ieitia1L4, it is no't'ed that Section 9 of Act 9 of June 26, 1989 pra*4des, in part, as follows: thli amendatory act shall not apply to violations cad mitted prior to the effective date Sf this act, and causes of action ialitiatet for such violations shall be gaVet^'saled b the prior law, which is continued in e!feet fbr that purpose as if this act were net in fdree. For the purposes of this seat 4n, a violation was committed prior to the €ffettive date of this act if any elements 6f the violation occurred prior thereto. lihde the 6ccurrehces in this ciie transpired after the elffedtiVe date of Act 9 (June 26, 19e9) , we mist apply the p 'CVilifiohs bf Act 9 to determine whether the Ethics Act was vidlated. Undelk Section 3(a) bf Act 9 of • 1989 quoted above; , �a pUblir oefimia1 /Eipioyee sha11 nbt engage in conduct that constitutes coAflidf of if6erest. The term "conflict of interest" is defined in the allegations. The teethe in this case re whets er ibsaer as a Wilmerding BotoU Fx draendil Member vialafet §ecfion 3(4y_ of Act 9 of 1989 rearing . the allegsttzb'ir 610-e tie Cost the ae g vote against hiring a riew solicitor thereby 6xist131 solicitor who employs B'onner's sgt use as" a p$raiegal in hie 'Office. Faceuai-ljr", 13'6xzner has served a Wili tor cc3ancittian since i571. the law fkrm of Brude D'±te and A s'at'e has 441.4ed as the Wilmerding Borough So1icit�9r e x a 1984 Wberi Bonn.ar a social d'inner With I01.6e, Vice asl 3 a rt tOEritii.4 v if :. Atter Bonner addis4d that Isis wife i 44 TWOiW Lni' aril doing - tt o sdbidiiAo obtain a par4lejel certif c tl , l316e stated that he was loosing Bonner, 94-021-C2 Page 17 for a paralegal and that he would like to talk to Bonner's wife. Mrs. Bonner was hired part -time by Dice in early 1987 and became a full -time employee in the Fall of 1987.. Carol. Bonner has continued . to work for Dice and Associates although she did take a pay cut in 1994. In February, 1992 when the Council decided to vote as to the appointment of Borough solicitor, Dice was appointed in a 5 -2 vote with Bonner voting with the majority. Thereafter, Bonner received a notice from the Investigative Division of the State Ethics Commission that he was being investigated under Section 3 (a) of At 9 of 1.989. regarding the hiring of the solicitor who employed Banner's wife as a paralegal. Subsequently; by letter of April 27, 1992, Bonner was advised that no further action would ensue as to the investigation based upon a finding that a conflict of interest does not include an action having a de minimis economic impact and Banter's activity was de minimis in nature. Borough Council in 1994 decided to advertise for the borough positions including solicitor. As to the solicitor position, eight attorneys including Dice submitted bids. At a March, 1994 meeting of Mi1merding Borough, a motion was made to hire Attorney Evashavik as:saIic That motion failed in a 4 -3 vote with Boner casting the deciding vote against hiring Evashavik. Bonner took such action because Evashavik was also solicitor for the school district' which. encompassed the Borough and because Evashavik represented a peon on issues. against the-Borough. After the vote to hire Evashavik failed, inquiry was made as to whether there were any motions to hire some other attorney but . no motions were proffered. The effect of the foregoing was the continuation of Dice as solicitor. Subsequently, Bonner received another notice from the Investigative Division that he was being investigated as to the March, 1994 hiring /retention of Dice. in that Boner cast the deciding vote not to hire Evashavik which resulted_ in the retention of Dice who employs Bonner's wife. In applying the provisions of Section 3 (a) of Act. 9 of 1989 to the above facts, we find a technical violation. It is clear that there was a use of authority of office on the: part of Bonner when hey voted against the appointment of a new solicitor which ensured the retention of the existing solicitor who employs Bonner's wife as a paralegal. Juliante, Order 809. In addition we note that the vote against retaining the new solicitor by Bonner was the deciding vote. We held in .Pepper, Opinion 87 -008 that a negative vote is a use of authority of office. In the instant matter the negative vote by Bonner was the deciding vote not to hire the new solicitor. Thus, that motion did not carry because of a 3-4 vote with Bonner voting in the majority against hiring a new solicitor. Such action Bonner, 94- 023 -C2 Page 18 resulted in the retention of Dice. Parenthetically, we note that if Bonner had not voted, there would have been a tie. If a tie occurred, Council would have had to take action through some other motion or the Mayor would have had to vote to break the tie. The Mayor did indicate that she would not have voted for Dice and Associates if she were called upon to vote. , The result of Bonner's_ action was a private pecuniary benefit to a business with which a member of his immediate,fami was associated. The term "immediate family" is defined as follows: Section 2. Definitions 65 P.S. §402. 65` P.S. 6 "Immediate family." A,parent, spouse, child, brother or sister. Section 2. Definitions • The term "business with which associated" is also defined under the Ethics Act as follows: "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 has_ 'a financial interest. Since Carol Jo Bonner was the wife of Bonner, it is clear that she is a member of his immediate family under the Ethics Law. In addition, since Mrs. Bonner was employed by Bruce Dike, and Associates, that firm is a business with which Mrs. Bonner is associated. Hence, Bruce Dice and Associates is a business with which - a member of Bonner's immediate family is associated. The private pecuniary benefit in this case consists of the compensation, salary or fee that Bruce Dice and Associates would receive as a result of Bonner's action not to hire Evashavik as solicitor, that is, the compensation would be the continuation of the fees received by Dice and Associates as the solicitor of Wilmerding Borough. Bonner's wife in turn receives compensation as an employee of Dice and Associates which money is jointly used by her and Bonner. The above decision as to a technical violation is in conformity with our prior precedent. In Kline, Order 886, we found a technical violation when a township supervisor seconded a motion and cast .the deciding vote to continue his son as the compensated township zoning and code enforcement officer. In Strate, Order 925, a technical violation was found when a township supervisor Bonner,. 94- 023 -C2' Page 19 used office by' casting the deciding- vote' fbr a resolution which resulted in the reteetiori. of her husband as a roadwork and voted to increase his salary` and- to cbntinue his benefits .. We are aware of the fact that Bonner was previously investigated by the Investigative Division on a simi.Iiar alIegao#pa, namely, that he violated Section 3(a) of Act 9+ of 13 - g9 when. he voted, to hire Bruce Dice Associates as solicitor. Th Investigative Division did not pursue that particular preliminary inquiry on the basis that the action of Bonner was de minimise in. that he was not the deciding vote to hire Dice. Bonner asserts that: her believed that there was no conflict in his voting and that he relied upon the April 27, 1994 letter which he construed to mean th'a`t such voting had a de minimis economic impact. We can possibly uhdrstand how Bonner could have perceived or construed the April 27, ,1994 letter to Mean that he would not have a conflict in voting as td the issue of the Borough Solicitor and in particular Bruce {fide alid Associates who employs his wife as a paralegal. However, we alto" believe that since Bonner was previously under in' it was incumbent upon him to inquire as to the precise basis for the closing of that prior investigation. Bonner did not do that. In addition, Bonner could have sought from this Commissi g on through re guidance o g an advisory opinion as tidant o matters of future voting on issues .concerning Bruce Dice and Associates. Bonner did not do that. We therefore believe that, based uOan the facts and the particularly unique circumstances of this else, ou± .finding' of a technical violation of Section 3 (a() of Act 9 of 1989 is wa° ranted. We i Bonner that public office is a public trust and that �1s ioi?g as cis wife is employed by Bruce .Dice and Associates, he must s &tisfy the requirements of Sections 3(a) and 3(j) of the Ethics fi,apr 4tWarstoris OF LAW: 1'- adaas Bonner a Wilmerding Borough Council Member is a public ofkicial subject to this, provisions of Act 9 of 19.89.. 2. A technical violation of Section 3,(a) of Act 9 of 1989 Occurred when Bonner bast the deciding vote against retaining a new solicitor which resulted in the retention of the existing solicitor who employs Bonner's wife as a paralegal. In Re: James Bonner File Docket: 94- 023 -C2 Date Decided: 05/04/95 Date Mailed: 05/16/95 ORDER NO .. 9 7 3 1. A technical violation of Section V(3) Of -Act § of '1989 occurred when James Bonner, a Ilaimetai g bordU4h Council Member, cast the deciding vote &gainst Iretai ing a new solicitor which resulted in the retention of ' ite existing solicitor who employs Bonner's wife as a paralegal. 2. Bonner is directed as to all future matters in3lving• Bruce Dice and Associates to satisfy the requirements .of , Sections 3(a) and 3(j) of the Ethics Act all long as Brice Dice Associates is a business with which a member of his immediate . family is associated. BY TEE COMMISSION, cY, 0 41114u bAgiEN E. REESE, CHAIR