August 16, 2012

I.   Introduction

This matter concerns Respondent Charles Famolare, III’s alleged use of his official position as the Town of Winthrop (“Town” or “Winthrop”) Harbormaster to secure for himself and/or his friend, Gary Ward (“Ward”), items and services of substantial value in alleged violation of G. L. c. 268A, § 23(b)(2).  Specifically, the Commission’s Enforcement Division (“Petitioner”) alleges that Famolare used his Harbormaster position in mid-2007 to: (1) secure for himself the free cleaning of barnacles and mussels from his jet-ski float; and (2) secure for himself and/or Ward, the free installation of finger piers at Famolare’s dock by a contractor, Boston Towing and Transportation (“Boston Towing”).  At the time, Boston Towing was working for the Town on the construction of a municipal pier (the “Pier Project”), and Famolare allegedly had a significant role as Harbormaster regarding the contractor’s work on the Pier Project and authority over the contractor’s activities in Winthrop Harbor generally.  Famolare denies that he used his official position to secure any unwarranted privileges or anything of substantial value for himself or anyone else, denies that he had official authority over Boston Towing, and denies that he violated G. L. c. 268A, § 23(b)(2).[1]

II.  Procedural Background

This matter commenced on July 20, 2011, with Petitioner’s issuance of an Order to Show Cause alleging that Famolare violated G. L. c. 268A, § 23(b)(2)  in 2007 while serving as Winthrop Harbormaster.  Famolare answered on August 8, 2011, denying most of the allegations and asserting affirmative defenses.  Famolare’s subsequent Motion and Renewed Motion for Summary Decision were each in turn denied, and an adjudicatory hearing was held on April 24 and 25, 2012.  The parties submitted their final briefs on May 25, 2012, and made their closing arguments before the Commission on June 15, 2012.

In rendering this Decision and Order, each undersigned member of the Commission has considered the testimony of the witnesses at the adjudicatory hearing, the evidence in the public record and the arguments of the parties. 

III.  Findings of Fact

1.   In 2007, Famolare was the Winthrop Harbormaster and a full time Town employee.  Famolare became the Winthrop Harbormaster in 2004, after serving as Deputy Harbormaster since 1997.  As Harbormaster, Famolare reported directly to the Town Manager.

2.   Famolare’s duties as Harbormaster included the enforcement of G.L. c. 90B and acting as Winthrop’s “chief of police on the water,” patrolling the harbor, pumping out boats and assisting boaters in distress.  As Harbormaster, Famolare had authority over vessels operating in Winthrop Harbor, including barges and boats operated by marine construction contractors, and could act to make certain that such vessels were safe, had properly operating bilge pumps and heads and were operated by appropriate personnel. 

3.   In 2007, Boston Towing, a marine construction contractor, performed marine construction and transported construction materials and personnel in and about Winthrop Harbor by boat and barge.  In doing so, Boston Towing was subject to Famolare’s law enforcement authority as Harbormaster.

4.   In 2007, the Town lacked a waterfront facility for the Harbormaster and municipal dockage for the general public.  As a result, Famolare docked two of the three Town-owned boats used by him as Harbormaster and his staff at his own private pier at his residence on Winthrop Harbor and used his pier as the Harbormaster’s headquarters. 

5.   In 2007, Famolare’s pier included a 185 foot walkway leading to a 50 foot gangway down to a U-shaped main float which was 20 feet wide and 40 feet long.  In July 2007, Famolare’s pier was regularly used by five boats:  two boats owned by Famolare, a 46-foot Silverton and a 16-foot Boston Whaler; two Town-owned Harbormaster boats, a 21-foot Mako and a 25-foot Parker; and a boat jointly owned by Famolare and his friends, a 24-foot Grady White.  In 2007, until sometime in July of that year, the Grady White was tied to a 12-foot square jet-ski float, which was in turn tied to Famolare’s main float.  To board the Grady White it was necessary to first step onto the jet-ski float, which was less stable than the main float.  Boarding the Grady White this way could be physically challenging and unsafe.  Famolare occasionally used the Grady White.

6.   One of the friends with whom Famolare owned the Grady White was Ward, the owner of Ward Marine, a marine equipment and boat supply store.  As of 2007, Famolare and Ward had been friends for more than twenty years.  In 2007, due to his height and weight, Ward had difficulty boarding the Grady White from the jet-ski float.

7.   During the years 2006 to 2008, the Town was in the process of designing and constructing the Pier Project.  In 2006, the Town hired the firm of Vine and Associates to design the Pier Project and to oversee its construction.  In October 2006, the Town hired Boston Towing as the general contractor for the Pier Project.  Construction began on the Pier Project in the spring of 2007 and was completed in 2008.  The Pier Project involved the construction of a Town Pier capable of servicing commercial and recreational vessels, dockage and other facilities for the Harbormaster, and a marina for Town residents.  The cost of the Pier Project exceeded $2 million.  In 2007, Geoffrey Lake (“Lake”) was the General Manager of Boston Towing’s Marine Construction Division and was the company’s project manager for the Pier Project.

8.   Famolare was both professionally and personally interested in the Pier Project.  First, as Harbormaster, he would be a major user of the Town Pier.  Second, he had a personal reason to care about the Pier Project due to a proposal to name the Town Pier after his late father who had preceded him as Harbormaster.

9.   Famolare actively participated in the Pier Project as part of the team that Town Manager Richard J. White (“White”) put together to manage the project for the Town.  White, in response to Famolare’s pleas to be the Town’s representative on the Pier Project, assigned Famolare to be the “major representative for the Town on the water” concerning the Pier Project.  As such, Famolare was one of the Town’s representatives at the construction meetings and, in White’s words, a “daily presence on the water during construction and … the town’s eyes and ears for observation of construction.”  Famolare was also, as White put it, “the first contact that the contractor would have if the contractor experienced any difficulties” or there were any changes to the Pier Project plans, specifications or design.  Famolare regularly met with White to report on and discuss the Pier Project’s progress.  To Pier Project engineer David Vine (“Vine”), Famolare was a “user-adviser” from whom Vine, who was only on the project site once a week, regularly sought and received advice, and with whom Vine consulted once or twice weekly on various aspects of the project.  Boston Towing workers, including Foreman Warren Benner (“Benner”), saw Famolare almost daily while working on the Pier Project, and discussed with him the progress of the work.  Famolare attended and actively participated in nearly every Pier Project construction meeting with Lake, Vine and others from January to October 2007.  At these meetings, Famolare brought up things that he observed regarding the Pier Project that required revision, and provided input into changes to the project.  Famolare, as Harbormaster, had expertise relevant to the Pier Project that caused his opinion to be sought and allowed him to provide suggestions and other feedback that resulted in changes to the Pier Project.  Famolare was not a mere observer of the Pier Project.[2]

10.  Between January and October 2007, Famolare and Lake were among the four to nine persons present at several Pier Project construction meetings, at which Famolare, among others, represented the Town and Lake represented Boston Towing.  Lake and Famolare had no relationship prior to the Pier Project.  Famolare and Lake were not personal friends and had no social or other private relationship; their relationship was entirely based on Famolare being Harbormaster and Lake’s being Boston Towing’s project manager, and their both being involved in the Pier Project.  Famolare did not have any private relationship with Boston Towing or any of its employees.

11.  In July 2007, in addition to the Pier Project, Boston Towing was doing a pier replacement project at the Atlantis Marina near Famolare’s residence under Lake’s direction.

12.  On or about July 11, 2007, Lake directed Boston Towing Barge Foreman Kenneth Aptt, Jr. (“Aptt”) to clean the mussels off of Famolare’s jet-ski float.  A number of years earlier Aptt had worked on Famolare’s pier for another employer.  As directed by Lake, Aptt and another Boston Towing employee moved a 30 foot by 85 foot barge carrying a 70 foot crane to Famolare’s pier.  Once there, they used the crane to remove Famolare’s jet-ski float from the water, cleaned it of mussels and replaced it in the water.  The work took a couple of hours to complete.  The labor cost of the cleaning was about $400-$450 per hour.  The value of the cleaning was at least $800. [3]

13.  Boston Towing did not charge Famolare for the cleaning of his jet-ski float, and Famolare did not pay the company anything for the work.

14.   Lake had no reason to have Boston Towing employees clean Famolare’s jet-ski float without charge other than that Famolare was Harbormaster and was involved in the Pier Project.  Lake’s relationship with Famolare was entirely based on Famolare being Habormaster and their common involvement in the Pier Project, and they had no friendship or other private relationship to motivate Lake’s generosity toward Famolare.

15.   Sometime prior to July 17, 2007, Famolare gave the go-ahead to Ward to arrange to have a finger pier or float attached to Famolare’s main float.[4]  Ward, in turn, asked Lake, “if we can get a finger float or something” installed.  Ward needed only one finger pier for access to the Grady White.  Ward did not ask Lake, and Lake did not tell Ward, what the installation would cost.  Lake knew that the work requested by Ward would be done at Famolare’s pier before he decided to have Boston Towing do the work.

16.   As of 2007, Ward had an established business relationship with Boston Towing.  Ward’s company, Ward Marine, was a supplier of marine equipment to Boston Towing.  In addition, Ward had hired Boston Towing to do marine construction work for him on one occasion several years prior to 2007.  At that time, Ward hired Boston Towing to install the pilings for a new building to house Ward Marine after the old building was destroyed in a fire.  Ward promptly paid Boston Towing for the pilings installation work.  As of 2007, Ward had had, however, in Ward’s words, “very, very limited” dealings with Lake.

17.  On or about July 17, 2007, at Lake’s direction, Boston Forging and Welding Corp. (“Boston Welding”) owner Ronald Giovanni patched a spot on Famolare’s main float and welded two float brackets to Famolare’s main float, and a Boston Towing crew, including Barge Foreman Aptt, attached two finger floats or piers to the main float.  The finger floats had been manufactured by Boston Towing or its subcontractor and had been brought by Boston Towing Foreman Benner by barge from the company’s East Boston facility on or about July 17, 2007, to the Atlantis Marina, where they were tied to Aptt’s barge.  Aptt then moved them to Famolare’s neighboring pier by barge and tugboat.[5]   Famolare and Lake were present at the work site, but Ward was not.  Ward did not know that the work was being done and did not know it had been done until he came to Famolare’s pier sometime later.  Because Famolare was present for the installation of the finger piers and was familiar with Lake, he was aware that Boston Towing, who he knew to be a Town contractor, was doing the work, and he had the opportunity to stop the work from going forward.  Nevertheless, Famolare permitted the work to proceed.  Famolare was further specifically aware of and permitted Boston Towing’s installation of more than one finger pier.  At the time the work was performed, Famolare did not ask what the installation of the finger piers would cost or discuss with Lake or anyone from Boston Towing or Boston Welding payment for the work.

18.  Boston Welding invoiced Boston Towing $500 for the welding work and Boston Towing paid the invoice.  The Boston Towing crew worked six and one half hours to attach the finger piers.  At the rate of $400 to $450 per hour, the crew’s labor was worth $2,600 to $2,925.   The two finger floats attached to Famolare’s main float were in good to fairly new condition.    One float was about five to six feet by twenty feet and the other was about five to six feet by twenty-three feet.  If new, the finger piers would have been worth $3,500 each.  Even as scrap, the floats were worth $200 to $300 each.  Thus, installed, the two finger piers had a combined value of between $3,500 and $10,425.

19.   Boston Towing did not charge Ward or Famolare for supplying and installing the two finger piers, and Famolare and Ward did not pay anything for the two finger floats or their installation.  Lake decided to have Boston Towing supply and install the finger floats in response to Ward’s request and to not charge for them after he knew that they would be installed on Famolore’s pier.  Lake made this decision in whole or in substantial part because Famolare was Harbormaster and was involved in the Pier Project.[6]  Lake and Famolare had no friendship or other private relationship to motivate Lake’s generosity toward Famolare.

20.   The installation of the finger piers provided Famolare with valuable benefits in the form of added safety, utility and convenience for him, his family, his friends and others using his pier.  First, their installation eliminated a safety hazard on Famolare’s property, which had the potential of causing serious bodily injury to persons attempting to board the Grady White from the jet-ski float.  Second, their installation substantially increased the docking space at Famolare’s pier, and the ease with which the boats docked there could be boarded.

21.   Sometime after July 17, 2007, and before Town Manager White left office in January 2009, White raised with Famolare the issue of the free installation of the finger piers.  Famolare was already aware of the free installation, [7] and now became aware that White knew of it.  In response, Famolare did not raise the nonpayment issue with Ward, nor did he ask Ward to pay Boston Towing for the piers.  Instead, Famolare went to Boston Towing, told the company’s president, Vincent D. Tibbetts, Jr. (“Tibbetts”), that he [Famolare] owed the company for two finger piers and asked to have the company bill Ward Marine for them.  Tibbetts did not do as requested by Famolare because, as far as Tibbetts was aware, Boston Towing had not done any work for Ward Marine apart from the pilings work for which Ward had paid years before. [8]

IV.  Decision

The Petitioner must prove its case and each element of the alleged violations by a preponderance of the evidence. 930 CMR 1.01(10)(o). The weight to be attached to any evidence in the record, including evidence concerning the credibility of witnesses, rests within the sound discretion of the Commission.  930 CMR 1.01(10)(n)3.

Petitioner alleges that Respondent twice violated § 23(b)(2) by using his position as Winthrop Harbormaster to: (a) secure for himself the free cleaning of barnacles and mussels from his jet-ski float; and (b) secure for himself and/or Ward, the free installation of finger piers at Famolare’s dock by Boston Towing.  In order to have established that Famolare twice violated § 23(b)(2) in 2007, Petitioner must have proved, as to each alleged violation, each of the following elements by a preponderance of the evidence:  that Famolare (1) was a municipal employee, (2) who knowingly, or with reason to know, used or attempted to use his official position, (3) to secure for himself or others unwarranted privileges or exemptions, (4) of substantial value, and (5) not properly available to similarly situated individuals.  There is no dispute that Famolare was, at all relevant times, Winthrop Harbormaster and a full-time employee of the Town of Winthrop.  As such, Famolare was, at all relevant times, a municipal employee as defined in G. L. c. 268A, § 1(g). 

We will first discuss the allegations concerning the installation of the finger piers and then we will discuss those relating to the cleaning of the jet-ski float. 

A.  The Alleged Violation based on the Installation of the Finger Piers

                                                                                   
The allegation is that Famolare knowingly, or with reason to know, used his Harbormaster position to secure the substantially valuable unwarranted privilege not properly available to similarly situated individuals of Boston Towing’s free provision and installation of finger piers in 2007.

Petitioner argues that, absent some legitimate explanation, and where Famolare denied a private relationship with any Boston Towing employee, it is reasonable to infer that the company installed the finger piers at Famolare’s float because “Famolare had authority and oversight over the company both under his general duties as harbormaster and his duties specifically assigned by Town Manager White on the Pier Project,” and, therefore, that Famolare used his official position to obtain the free finger piers from Boston Towing.  Petitioner further argues that Famolare knew, or had reason to know, that he was using his official position to obtain from Boston Towing the free installation of the finger piers because: (1) as Harbormaster and as the Town’s representative on the Pier Project, he had substantial authority over the company; (2) he witnessed the installation by the company of two finger piers at his float; and (3) he admitted to the Boston Towing’s then president Tibbetts (in 2009) that he owed the company for the finger piers and asked the company to bill Ward Marine.

Famolare argues that the evidence shows that he had no involvement in Boston Towing’s installation of the finger piers at his float other than to give his assent to Ward who arranged the installation so that he could safely board the boat they owned together.  According to Famolare, the evidence shows that Boston Towing installed the piers at the request of Ward, with whom the company had a long-standing business relationship, and that there “was not a shred of evidence that Famolare needed or benefited from these finger piers.” Famolare further argues that Petitioner has failed to prove that Famolare had any official authority over Boston Towing that he used to obtain the free installation of the finger piers.  Famolare asserts that the evidence of his general authority as Harbormaster over harbor activities is not sufficient to prove that he had official authority over Boston Towing.  As to his role in the Town Pier Project, Famolare argues that the evidence shows that he was merely an observer or “user-adviser,” and had no authority over Boston Towing concerning the Project.  Famolare argues that, given his lack of authority over Boston Towing as Harbormaster, he could not have used his official position to cause the company to install finger piers at his dock for free.

Famolare as Harbormaster Had Official Authority over Boston Towing

Boston Towing’s former president, Tibbetts, credibly testified that the company had to abide by Famolare’s rules and regulations as Harbormaster when operating its barges and other vessels in Winthrop Harbor.  We also take notice of the enforcement powers of harbormasters set out in G. L. c. 90B.  Thus, the preponderance of the evidence establishes that, as Harbormaster, Famolare had official authority over Boston Towing’s on-the-water activities in Winthrop Harbor in 2007.

Famolare was an Influential Participant in the Pier Project

In his testimony, Famolare described himself as an observer of the Pier Project. Famolare’s counsel attempted with a number of witnesses to elicit testimony to the effect that Famolare was one of many interested observers of the project with no power or authority with respect to Boston Towing’s work on the Pier Project.  While the evidence indicates that Famolare was not involved in the bid process for the Pier Project, did not sign any contracts or change orders relating to the project and may not have been involved in reviewing or approving Boston Towing’s requests for payment (although former Town Manager White, a credible witness, testified that he was), the evidence further shows that Famolare was more than just one of many observers of the Pier Project.  Most importantly, White testified that he assigned Famolare to be “the major representative for the town,” “a daily presence on the water” and the “town’s eyes and ears” on the $2 million Pier Project.  According to White, Famolare was also “the first contact that the contractor would have if the contractor experienced any difficulties” or there were any changes to the Pier Project plans, specifications or design, and that Famolare regularly met with White to report on the progress of the project.  Thus, to the degree he was an observer, Famolare was an observer in his capacity as Harbormaster and a town employee, rather than merely as a curious resident.  The evidence also shows that Famolare, as Harbormaster, was generally viewed as a principal or ultimate user of the new Town pier.  As such, Famolare’s input was sought and noted by the builders of the Pier Project, including Boston Towing.  As established by one of his admissions, Famolare had “input on changes to the Project” as an “observer with expertise that was relevant to certain Project tasks” who “made requests or suggestions for the execution of those tasks,” and who “provided feedback” when he was consulted for his opinion on particular aspects of the Project. Accordingly, the preponderance of the evidence establishes that Famolare had a significant role in and influence on the Pier Project because he was Harbormaster, and affected and had the potential to affect Boston Towing’s work on the project.

Lake and Boston Towing were Motivated by Famolare’s Position and Influence

The direct evidence of how Boston Towing got involved in installing the finger piers at Famolare’s dock, the testimony of Famolare, Ward and Lake, supports the conclusion that Ward approached Lake to do the work.  That Ward contacted Lake does not, however, explain why Lake had Boston Towing employees install the two finger piers at no cost. Thus, even assuming that Ward, a former customer and current and long-time supplier, approached Lake and requested help, these facts do not explain why Lake and Boston Towing did the work without charge and went to the significant additional time and substantial added expense to provide and install two finger piers, rather than the single one Ward appears to have needed.  While Lake testified that he had the work done for Ward and did not bill him for it because Ward was a good client of Boston Towing and that he had made similar good will gestures to “dozens” of clients in the past, we do not find Lake’s explanation credible.  For the reasons discussed below, we find that the preponderance of the evidence establishes that Lake and Boston Towing installed two finger piers substantially for Famolare’s benefit.  

First, Boston Towing had only done one project for Ward several years earlier.  In fact, it was Boston Towing that was Ward’s customer.  Thus, Ward was not a current client whose good will Boston Towing needed, and there is no evidence that Boston Towing had previously given anything to Ward or Ward Marine to cultivate good will.  By contrast, Famolare, as Harbormaster and the future principal or primary user of the new Town pier, was in effect a current Boston Towing customer with respect to the Pier Project.  Lake thus had a reason to cultivate Famolare’s good will as a Boston Towing customer in effect, as Harbormaster and future principal user of the Town Pier, with input into and influence upon the Pier Project.  In addition, given the extent of Boston Towing’s on-the-water activities in Winthrop Harbor in 2007, Lake had a reason to seek Famolare’s good will in his law enforcement activities as Harbormaster.  

Second, Ward needed only one finger pier to access the Grady White,[9] and a second unneeded pier could not have created any good will with Ward.[10]  By contrast, given the number of boats docked at Famolare’s pier at the time, added docking space was useful to Famolare and providing such space at no cost would tend to create good will with him.  Third, Lake and Famolare were present, but Ward was not, when the two finger piers were installed at Famolare’s dock.  Thus, Famolare’s wishes, not Ward’s, were determinative relative to the installation of the two finger piers. 

Finally, the fact that Lake had, less than a week earlier, directed the cleaning of Famolare’s jet-ski float at substantial expense to Boston Towing and at no charge to Famolare shows that Lake was disposed to provide Famolare with valuable free benefits.  As there was no personal or private relationship between Famolare and Lake or Boston Towing which could have provided a legitimate explanation for the latters’ free provision and installation of the two finger piers, it is, therefore, reasonable to infer that Lake and Boston Towing provided one or both of them because Famolare was Harbormaster and involved in the Pier Project and thus in a position to affect Boston Towing’s activities in Winthrop Harbor. See In the Matter of Ruberto and Duquette, 2010 SEC 2320, 2326 (2010) (where mayor was in a position to help or hinder the giver’s business dealings with the city, and in the absence of a private relationship, it was reasonable to infer that he knew or should have known that he was being given the opportunity to purchase scarce World Series tickets at face value because he was mayor.)

The Finger Floats were Each of Substantial Value[11]                                                                                                                       

Petitioner argues that Boston Towing installed newly manufactured piers, worth $3,500 each, plus installation. Famolare argues that the piers were old, about to be scrapped and were, according to Lake’s testimony, worth no more than $200 to $300 each.  Whether new or used, the evidence shows that the piers were in good to nearly new condition when installed.  In addition, the evidence shows that, whatever their value, the installation of the piers required welding and assembly work worth a total of $3,100 to $3,425. Thus, the evidence establishes that the two installed finger piers were together worth between $3,500 and $10,425. In addition to their cost, the evidence shows that the finger floats provided substantially valuable benefits to Famolare. Not only did the installation of the floats resolve the safe boat access issue regarding Ward, Famolare personally benefited from the increase in dockage space at his private pier provided by the installation of the two finger piers, especially given the number of boats he kept docked there.  These benefits, while not subject to precise monetary calculation, were plainly worth more than $50. Accordingly, the evidence establishes that each of the finger piers was of substantial value.

The Free Provision and Free Installation of the Finger Floats were Unwarranted Privileges Not Properly Available to Similarly Situated Individuals

Thus, in receiving from Boston Towing the benefits of the free provision and the free installation of the finger piers, Famolare secured substantially valuable privileges.[12] Those privileges were not properly available to similarly situated individuals.  No private pier owner in Winthrop would be entitled to receive free materials and services of substantial value for his private benefit from a Town contractor because of the owner’s public position in the absence of statutory or regulatory authorization. Indeed, such receipt would be prohibited by G. L. c. 268A.  Famolare has not claimed such statutory or regulatory authorization for his receipt of the finger piers, and we are not aware of any such law or regulation applicable in this case.  As far as the preponderance of the credible evidence shows, Boston Towing’s free provision and installation of the finger piers for Famolare’s benefit was without legitimate reason or justification.  Accordingly, we find that the free provision and the free installation of the finger floats received by Famolare from Boston Towing in July 2007 were unwarranted privileges[13] of substantial value which were not properly available to Famolare or similarly situated individuals.       

Famolare Knowingly, or with Reason to Know, Used his Official Position to Obtain the Finger Piers

The ultimate deciding factor as to whether Boston Towing’s free provision and installation of the two finger piers resulted in a § 23(b)(2) violation by Famolare is whether Famolare knowingly, or with reason to know, used his position as Harbormaster to secure the free finger piers.  Thus, the issue is what Famolare knew or should have known, and specifically whether he knew or should have known that he was being provided with the finger piers by Boston Towing without charge and because of his official position as Harbormaster and involvement in the Pier Project.

Because Famolare was present during the installation of the finger piers, he was aware that Town contractor Boston Towing was performing work on his pier and that it was installing more than the single finger pier that Ward needed.  As set out in paragraph 21 of the Finding of Facts and in footnote 7, supra, the preponderance of the evidence establishes that Famolare knew at the time of their installation that the piers were being provided to him at no charge.  However, even if we assume for the sake of discussion that Famolare initially believed that the work Boston Towing and Boston Welding were performing on his main float was for Ward,[14] given that Ward’s problem boarding the Grady White was obviously solved by a single finger pier, there was no reason for Famolare to believe that the installation of the second pier was at Ward’s request or for Ward’s benefit or that Ward would pay for it.[15]  The installation of the second pier (as well as the welding repair to his main float) gave Famolare ample reason to know that he was being given free materials and services by Lake and Boston Towing. More specifically, where Famolare had not previously undertaken and did not undertake on July 17, 2007, to pay for work and materials that would plainly benefit him as the pier owner rather than Ward, and where there was no discussion of the cost or payment for the work at the time of its performance, he had reason to know that he was receiving free work and materials from Lake and Boston Towing. Furthermore, in light of his involvement in the Pier Project and the fact that he had no friendship or other private relationship with Lake and Boston Towing to motivate their generosity toward him, Famolare also had reason to know that Lake and Boston Towing were providing him with at least the second finger pier at no charge because, as Harbormaster, he had input and influence concerning Boston Towing’s work on the Pier Project and law enforcement authority over its on-the-water activities in Winthrop Harbor. See In the Matter of Ruberto and Duquette, 2010 SEC 2320, 2326.

Where Famolare created a situation rife with potential conflicts of interest by allowing a major Town contractor with whom he had official dealings to perform work at his residence, his failure to ask about payment for the piers or confirm payment by Ward was at best willful blindness to the conflict of interest risks inherent in his situation. Under these perilous circumstances of his own creation, it was incumbent on Famolare as a public official to act to avoid his receipt of any substantially valuable benefit given because of his official position or actions.  As far as the evidence shows, Famolare made no effort to avoid being the beneficiary of Boston Towing’s largesse; a largesse that could be based only on Famolare’s official position and involvement in the Pier Project.  An unwarranted privilege of substantial value, given because of a public employee’s official position and actions, does not cease to be such because the recipient accepts it without asking any questions.  A public employee accepting such a privilege under circumstances of his own making, which he chooses to leave ambiguous by not asking the questions that any reasonably prudent person would ask under the same circumstances,[16] has reason to know that he is using his official position to secure an unwarranted privilege. 

 A public employee does not have to take official action in order to “use or attempt to use [the employee’s] official position” to secure an unwarranted privilege. See Commission Advisory No. 04-02 Gifts and Gratuities.  Accepting what one knows or has reason to know is being given to one because of one’s official position and actions is in itself the use of one’s official position. See Commission Advisory No. 04-01 Free Tickets and Special Access to Event Tickets (fact that public employee obtains ticket to attend event or otherwise takes advantage of ticket and he knows, or has reason to know, that it was given to him because of his public position, constitutes a "use of position" for § 23(b)(2) purposes); see also EC-COI-87-7.  Accordingly, we find that the preponderance of the evidence establishes that by, under the above-described circumstances, accepting the free provision and free installation of the finger piers, particularly the second pier which Ward obviously did not need, Famolare knowingly or with reason to know used his official position as Harbormaster to secure unwarranted privileges which were of substantial value and were not properly available to similarly situated individuals.      

Therefore, we find that Petitioner has proved by a preponderance of the evidence that, on or about July 17, 2007, Famolare, knowingly or with reason to know, used his position as Harbormaster to secure for himself unwarranted and substantially valuable privileges, not properly available to similarly situated individuals, i.e., Boston Towing’s free provision and free installation of the finger piers, in violation of § 23(b)(2).

BThe Alleged Violation based on the Cleaning of the Jet-ski Float

The allegation is that Famolare knowingly, or with reason to know, used his Harbormaster position to secure the substantially valuable unwarranted privilege not properly available to similarly situated individuals of Boston Towing’s free cleaning of his jet-ski float in 2007.

Cleaning was of Substantial Value           

The preponderance of the evidence establishes that a Boston Towing crew, at Lake’s direction, cleaned Famolare’s jet-ski float on or about July 11, 2007 at a cost of over $800, and thus provided Famolare with a service of substantial value.  Aptt’s detailed testimony concerning when and why he and his crew performed this work was credible and more believable than Lake’s testimony that Famolare did not ask Lake to do the work and that Lake did not recall that the work was done by the company.  It is undisputed that Famolare did not pay anything for the cleaning of his jet-ski float.

Cleaning was an Unwarranted Privilege Not Properly Available to Similarly Situated Individuals Provided to Famolare because of His Official Position

As the record shows that there was no personal or private relationship between Famolare and Lake or Boston Towing which could have provided a legitimate explanation for the free cleaning, it is reasonable to infer that Lake and Boston Towing provided the free cleaning because Famolare was Harbormaster and involved in the Pier Project.  Thus, the free cleaning of Famolare’s jet-ski float by Boston Towing was an “unwarranted privilege” as there was no legitimate justification for the company to perform the work for Famolare without charge.  The free cleaning was not properly available to “similarly situated individuals” as other owners of private docks in Winthrop could not properly use an official position and its related authority to obtain free goods and services from a Town contractor.

Petitioner Failed to Show that Famolare Knowingly or with Reason to Know Used his Official Position to Secure Cleaning

The ultimate deciding factor as to whether Boston Towing’s free cleaning of Famolare’s jet-ski float resulted in a § 23(b)(2) violation by Famolare is whether Famolare knowingly or with reason to know used his position as Harbormaster to secure the free cleaning.

Petitioner did not introduce any direct evidence that Famolare knowingly used his position as Harbormaster in order to obtain the free cleaning of his jet-ski float by Boston Towing.  Indeed, Petitioner did not introduce any direct evidence that Famolare had any contemporaneous knowledge that Boston Towing employees cleaned his jet-ski float.  Famolare testified upon direct and cross-examination that he did not request and did not know of the cleaning in 2007. 

Petitioner argues that it can be reasonably inferred that Famolare knew both that Boston Towing cleaned his jet-ski float and that it did so because of his position as Harbormaster from the evidence in the record that: (a) Boston Towing employees used a 30 by 85 foot barge with a 70-foot boom to remove the float from the water to clean it and then to replace it over the course of several hours (established by Aptt’s testimony); and (b) Famolare used his private dock, which is located behind his home, as his base of operations as Harbormaster and patrolled the harbor from there (established by Famolare’s and others’ testimony).  Based on the evidence in the record, Petitioner argues that Famolare “would have seen” the barge, crane and work being performed.  In addition, Petitioner argues that “common sense dictates” that Boston Towing would not have done the work without Famolare’s permission and “without receiving credit” from Famolare for doing the work.  In short, Petitioner seeks to have the Commission infer and conclude that Famolare, despite his repeated denials, knew that Boston Towing cleaned his jet-ski float and knew that it did so because he had authority over the company as Harbormaster.

Petitioner’s argument is undercut by the absence of any evidence in the record placing Famolare at or near his dock and the jet-ski float on the day that the jet-ski float was cleaned.  The only evidence of Famolare’s whereabouts at the time of the cleaning is his testimony on cross-examination, “I wasn’t present for that.” Had evidence been introduced showing that Famolare was on duty as Harbormaster on the day the work was performed, the inference that he knew of the work would be compelling, given that his dock, to which the jet-ski float was attached, was used as the Harbormaster’s headquarters.  The same would be true if there were evidence in the record that Famolare was at his home at the time of the work, given that the jet-ski float was effectively in his backyard. In addition, there is no evidence in the record that Lake, Aptt or anyone else from Boston Towing, or any other person, told Famolare of the cleaning of the jet-ski float during the relevant time period. Nor is there any evidence in the record that the cleaning of the jet-ski float would have been noticeable after the fact in a way that might have prompted Famolare to inquire about the cleaning, e.g., by asking his neighbors if they saw the work being performed.  In the absence of any such evidence, the inference argued for by Petitioner that Famolare knew of the free cleaning in 2007, and of Boston Towing’s motive for performing it is not sufficiently supported.  We decline to make that inference, and find that Petitioner has failed to prove by a preponderance of the evidence that Famolare knew or had reason to know of the cleaning in 2007. 

Accordingly, we find that Petitioner has not proved that Famolare knowingly or with reason to know used his position as Harbormaster to secure the free cleaning of his jet-ski float in 2007 in violation of § 23(b)(2).       

V.   Conclusions and Findings

For the above stated reasons, we conclude and find: first, that Petitioner has proved by a preponderance of the evidence that Famolare violated G. L. c. 268A, § 23(b)(2), in 2007 by using his position as Harbormaster to secure the free provision and installation of finger piers by Boston Towing; and, second, that Petitioner has not proved by a preponderance of the evidence that Famolare violated G. L. c. 268A, § 23(b)(2) in connection with Boston Towing’s cleaning of his jet-ski float in 2007.  

VI.  Order 

Accordingly, having found that Famolare violated G. L. c. 268A, § 23(b)(2), in connection with the finger piers as specified above, the Commission, pursuant to the authority granted it by  G. L. c. 268B, § 4(j), hereby ORDERS Famolare to pay a civil penalty of $2,000 for that violation.  Finally, the allegation that Famolare violated G. L. c. 268A, § 23(b)(2), in connection with the July 2007 cleaning of his jet-ski float, is DISMISSED.

 

DATE AUTHORIZED:  July 20, 2012

DATE ISSUED:  August 16, 2012

 

SIGNED:

//signed//                                            
Charles B. Swartwood, III, Chairman

//signed//                                                                        
Patrick J. King                                                                                    

//signed//                
Martin F. Murphy

//signed//__________                                                         
Paula Finley Mangum                                                             

//signed//                    
William J. Trach

 

NOTICE OF APPEAL

Respondent Charles Famolare, III is hereby notified of his right to appeal this Decision and Order pursuant to G. L. c. 268B, § 4(k), and 930 CMR 1.01(10)(r), by filing a petition in the Superior Court within thirty (30) days of the issuance date.

To:

Mark D. Smith, Esq.                                             Candies Pruitt Doncaster, Esq.                 
Marc C. Laredo, Esq.                                           Enforcement Division 
Trevor M. Findlen, Esq.                                        State Ethics Commission  
Laredo & Smith, LLP                                           One Ashburton Place, Room 619
101 Federal Street, Suite 650                              Boston, MA  02108
Boston, MA  02110                                              BY HAND AND EMAIL
BY MAIL, FAX AND EMAIL

                                                                                      


[1]  At the time of Famolare’s alleged violations, § 23(b)(2) prohibited a municipal employee from, knowingly or with reason to know, using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals.  In 2009, the section was rewritten and now provides, in relevant part, that no municipal employee shall knowingly or with reason to know, “(i) solicit or receive anything of substantial value for such officer or employee, which is not otherwise authorized by statute or regulation, for or because of the officer or employee’s official position; or (ii) use or attempt to use such official position to secure for such officer, employee or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals.”

[2]  White’s testimony concerning Famolare’s role in the Pier Project was more credible than Famolare’s. White’s testimony is supported by the construction meeting minutes prepared by Vine and other documents in evidence as exhibits and by the testimony of other witnesses.  There is no evidence that White had any reason to overstate Famolare’s role, while Famolare was strongly motivated to understate it.  Famolare’s minimization of his role in the Pier Project during his testimony reduced his credibility as a witness.

[3]   Aptt’s detailed testimony concerning this work was credible while Lake’s claimed lack of recollection of it was not.  There was no evidence that Aptt had any reason not to be fully truthful.  Lake, by contrast, had a motive not to recall directing the provision of free services to Famolare for which there was no legitmate explanation.  We find credible Aptt’s testimony that the work was done at Lake’s direction and find it unlikely that Lake would not recall directing the cleaning of the Harbormaster’s private jet-ski float.  Lake’s testimony that he did not recall the cleaning reduced his credibility as a witness.

[4]  “Finger pier” and “finger float” are used interchangeably in this Decision and Order.

[5]   Regarding the origin of the finger piers installed at Famolare’s float, the testimony of Benner and Aptt was more credible than Lake’s.  Benner and Aptt’s testimony was consistent and believable.  By contrast, Lake’s story of locating two about-to-be-demolished, but serviceable piers at Atlantis Marina and offering them to Ward, after obtaining the marina owner’s consent, was entirely uncorroborated
and not believable. Benner and Aptt had no reason to be untruthful.  Lake was motivated to deviate from the truth in order to legitimize the benefits he provided to Famolare.

[6]  While Lake, consistent with his testimony, may have been partly motivated by his company’s long-standing business relationship with Ward Marine and Ward, we did not find credible Lake’s testimony that he supplied and did not charge for the two piers as a good will gesture for Ward as customer.  Boston Towing was actually Ward’s customer, and there is no evidence that Lake or Boston Towing had ever on any other occasion given anything to Ward or Ward Marine to cultivate good will.  By contrast, Lake had, just days prior to the installation of the finger piers, directed his subordinates to clean Famolare’s jet-ski float and Famolare was at the time an influential representative of the Town on Boston Towing’s biggest project in Winthrop.

[7]   We find that the preponderance of the evidence establishes that Famolare already knew that the finger piers had not been paid for before the nonpayment issue was raised by White.  Famolare’s prior knowledge is demonstrated by his behavior after White raised the nonpayment issue.  Thus, had Famolare not already known that Ward had not paid for the piers, his first step after learning of the nonpayment from White most probably would have been to contact Ward, his longtime friend, and ask him to pay Boston Towing for the finger piers.  That Famolare instead went to Boston Towing after the nonpayment issue was raised by White indicates that Famolare already knew of the nonpayment and was attempting to conceal Boston Towing’s free installation of the piers by having Boston Towing bill Ward Marine.  In addition, the fact that Famolare never asked what the piers would cost or discussed payment at the time they were installed is more consistent with his knowing that they were being provided without charge than that they were being paid for by Ward.  Thus, had Famolare believed that Ward was going to pay for the work, it is more likely than not that he would have confirmed with Lake, before the work started, that Ward, not Famolare, would be paying for it, and would have confirmed with Ward that Ward understood the extent and cost of the work and would indeed pay for all of the work.  That there is no evidence of Famolare doing either supports the conclusion that he knew that the piers and their installation were being provided to him without charge.  Based on all of the evidence, we find that it is more likely than not that Famolare knew at the time of their installation that the piers and their installation were being provided to him by Lake and Boston Towing at no charge.

[8]  Tibbetts’ testimony stands un-rebutted.  During his hearing testimony, Famolare was not asked about, and did not otherwise deny, making the admission to and request of Tibbetts concerning the finger piers described by Tibbetts in his testimony.

[9]  Ward testified that he asked Famolare for approval to put in, and asked Lake to install, “a finger float,” in contrast to Lake and Famolare’s testimony that Ward requested two finger piers. Although Ward resisted Petitioner’s attempts to have him confirm that by “a” he meant “one,” Ward admitted on cross-examination that he needed only one finger float to safely board his boat.  Given that the Grady White was 24 feet long and each of the fingers piers at least 20 feet long, it is clear that Ward’s boat access problems were in fact solvable by a single finger pier.

[10]  Famolare’s testimony that the Grady White was subsequently tied up between the two finger piers, to the degree Famolare was implying that it was tied to both floats, was an unconvincing attempt to rationalize the installation of two finger piers for Ward’s benefit.

[11]  Anything worth $50 or more is of substantial value for the purposes of G. L. c. 268A.  Life Insurance Association of Massachusetts, Inc. v. State Ethics Commission, 431 Mass. 1002, 1003 (2000).

[12]  A privilege is “a special advantage, immunity, permission, right or benefit granted to or enjoyed by an individual, class or caste,” The American Heritage Dictionary, Second College Edition 986 and 474 (1985). 

[13]  The Commission has previously concluded that an “unwarranted privilege” is one that is “[l]acking in adequate or official support” or “having no justification; groundless.”  See EC-COI-98-2.

[14]     Where the work purportedly “for Ward” was a substantial and long-term improvement to Famolare’s private pier that provided benefits to Famolare beyond merely solving the problem of Ward’s access to the Grady White, and where Famolare also used the Grady White, we do not find credible Famolare’s claim that the finger pier work was for Ward, or that paying for it was Ward’s responsibility. 

[15]    We did not find credible Famolare’s testimony that Ward asked for his approval to have two finger piers installed.  Nor did we find Lake’s testimony credible that Ward asked him to install two finger piers. Instead, we are convinced by the preponderance of the evidence, including Ward’s testimony, that he only needed and sought the installation of “a finger pier.” While Ward under cross-examination resisted specifically confirming that by “a” he meant one, his testimony as a whole convinces us that that is in fact what he meant.

[16]   Here those questions to Lake would have included: (1) Why are you installing two finger piers? (2) Who is going to pay for the finger piers?