Docket: 695
Parties: IN THE MATTER OF DAVID BUNKER
Date: December 18, 2003
DISPOSITION AGREEMENT
This Disposition Agreement is entered into between the State
Ethics Commission and David Bunker pursuant to Section 5 of the
Commission's Enforcement Procedures. This Agreement constitutes a
consented-to final order enforceable in Superior Court, pursuant to
G.L. c. 268B, s.4(j).
On November 12, 2003, the Commission initiated, pursuant to
G.L. c. 268B, s.4(a), a preliminary inquiry into possible
violations of the conflict of interest law, G.L. c. 268A, by
Bunker. The Commission has concluded its inquiry and, on December
16, 2003, found reasonable cause to believe that Bunker violated
G.L. c. 268A, s. 23(b)(2).
The Commission and Bunker now agree to the following findings
of fact and conclusions of law:
Findings of Fact
1. Between January 2001 and January 2003, Bunker was a state
representative from Rutland.
2. A member of the general court is entitled to receive a per
diem allowance for each day that the member is present at the State
House in the performance of his duties. Bunker's per diem allowance
based on his residence in Rutland was $36.[1]
3. In mid-July 2002, Bunker became sick with mononucleosis.
While he was ill, Bunker was at the State House only on infrequent
occasions. Bunker requested and received, however, per diem
allowances for three to four days a week during the period of
mid-July 2002 to mid-September 2002.
4. Bunker acknowledges that he was not entitled to
approximately 30 per diem allowances paid to him during this
period.[2]
Conclusions of Law
5. Section 23(b)(2) prohibits public employees from, knowingly
or with reason to know, using or attempting to use their official
position to secure for themselves or others unwarranted privileges
or exemptions of substantial value not properly available to
similarly situated individuals.
6. As a state representative, Bunker was a state employee
pursuant to G.L. c. 268A, s. 1.
7. By certifying as a state representative to the state
treasurer that he was present at the State House, Bunker used his
state representative position to secure his per diem allowance.
8. Approximately 30 of the per diems Bunker received were an
unwarranted privilege because he was not present at the State House
on those days as required by G.L. c. 3, s. 9B.
9. At $36 per day, 30 per diems totaled $1,080. Therefore,
the privilege was of substantial value.
10. The privilege, which Bunker received, is not properly
available to other members of the legislature as it is contrary to
state law.
11. Thus, by receiving $50 or more in travel per diems for
days in which he was not present at the State House, Bunker
knowingly used his state representative position to obtain an
unwarranted privilege of substantial value not properly available
to other similarly situated individuals in violation of s.23(b)(2).
Resolution
In view of the foregoing violation of G.L. c. 268A by Bunker,
the Commission has determined that the public interest would be
served by the disposition of this matter without further
enforcement proceedings, on the basis of the following terms and
conditions agreed to by Bunker:
(1) that Bunker pay to the Commission the sum of $2,000 as a
civil penalty for violating G.L. c. 268A, s. 23(b)(2);
(2) that Bunker reimburse the Commonwealth of Massachusetts
the sum of $1,080 as a civil forfeiture for the per diem
allowances that he was not entitled to receive; and
(3) that he waive all rights to contest the findings of fact,
conclusions of law and terms and conditions contained in this
Agreement in this or any other related administrative or
judicial proceedings to which the Commission is or may be a
party.
STATE ETHICS COMMISSION
By:
/s/Peter Sturges, Executive Director
Dated: December 18, 2003
/s/David Bunker
Dated: December 9, 2003
I, David Bunker, have personally read the above Disposition
Agreement. I understand that it is a public document and that by
signing it, I will have agreed to all of the terms and conditions
therein including payment of $2,000 to the State Ethics Commission
and $1,080 to the Commonwealth of Massachusetts.
/s/David Bunker
----------------------
[1] G.L. c. 3, s. 9B provides that Legislators are entitled to
a $7,200 annual payment for expenses. In addition, a "member of
the general court who lives in . . . Rutland . . . shall receive a
per diem allowance for mileage, meals and lodgings of thirty-six
dollars per day . . ." Legislators are entitled to the per diem
allowance whether the Legislature is in session or prorogued "upon
certification to the state treasurer that he was present at the
state house."
[2] According to Bunker, he was present at the State House on
some occasions while he was ill. During this period, however, he
acknowledges that he did not, due to his illness and fatigue,
maintain accurate records of his schedule and can not now determine
exactly how many days he was present at the State House.