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