Docket No. 582

In the Matter of David Ellis

Date: March 16, 1999



DISPOSITION AGREEMENT


The State Ethics Commission ("Commission") and David
Ellis ("Ellis") enter into this Disposition Agreement pursuant to
s.5 of the Commission's Enforcement Procedures. This Agreement
constitutes a consented to final order enforceable in the Superior
Court pursuant to G.L. c. 268B, s.40). On February 10, 1998, the
Commission initiated, pursuant to G.L. c. 268B, s.4(a), a
preliminary inquiry into possible violations of the conflict of
interest law by Ellis. The Commission concluded that inquiry, and
on December 16,1998, found reasonable cause to believe that Ellis
violated G.L. c. 268A, s.s.23(b)(2)and 23(b)(3).

The Commission and Ellis now agree to the following
findings of fact and conclusions of law:

1. From January 1994 until the present, Ellis has served
as award council or on the City Council ("the Council") in the City
of Lynn. As such, he is a municipal employee within the meaning of
G.L. c. 268A, s. I of the conflict of interest law.

2. The Council serves as the licensing authority in Lynn.
As such, it has the ability to issue, suspend and revoke business
licenses.

3. Commercial Auto Body is an auto body repair shop in
Lynn, located at 165 Commercial Street. Commercial Auto Body is
owned and operated by Emilio Rosario ("Rosario").

4. Commercial Auto Body is in Ellis' ward.

5. As a city councilor Ellis would occasionally conduct
site visits at Commercial Auto Body.

6. At the November 12, 1996 Council meeting, Ellis
requested a public hearing to show cause why Commercial Auto Body's
license should not be revoked.[1/] The reason for the revocation
according to Ellis, was that Rosario was not complying with certain
parking restrictions.

7. On December 17, 1996, the Council held a hearing
concerning Commercial Auto Body's license. Rosario and his attorney
appeared to represent Commercial Auto Body. No one appeared to make
a case for closing Rosario down. Ellis moved to table the action
against Rosario on the condition that Rosario agree not to park
vehicles on Commercial Street, not do any auto repair work on the
sidewalk and post "No Parking" signs on Commercial Street. The vote
to table was 10 yes and I no with Ellis voting in favor of the
motion.

8. In 1997, Ellis was running for re-election as the ward
councilor. The election was to be in September 1997. Ellis'
opponent in the election was Peter Capano ("Capano").

9. Sometime in early August 1997, Ellis approached
Rosario and asked if he could place his campaign signs on Rosario's
Commercial Auto Body property. Rosario agreed and three days later,
Ellis put up four of his campaign signs on the side of Rosario's
building.

10. Shortly thereafter, Capano came to Rosario's shop and
asked if he could put up some of his campaign signs on that same
building. Rosario wanted to remain neutral and therefore agreed to
also let Capano put up his campaign signs. Capano put up his
campaign signs next to Ellis' campaign signs on Rosario's building.

11. Shortly thereafter, Ellis went to Commercial Auto
Body and began tearing down Capano's campaign signs. Rosario asked
Ellis what he was doing. Ellis asked Rosario who he was supporting
in the campaign; either him (Ellis) or his opponent (Capano).
Rosario stated that he just wanted to run his business and that he
did not care who put signs on his building. Ellis told Rosario that
he was the city councilor for that ward and that one of the cars
parked in front of Rosario's business was parked illegally and he
(Ellis) could have the car towed. Rosario then told Ellis he could
take down Capano's signs. As Ellis proceeded to take down his
opponent's signs, Ellis reminded Rosario of the December 1996
incident involving Rosario's license to operate and indicated to
Rosario that he (Ellis) had assisted him in resolving that matter.

12. Rosario feared retaliation from Ellis if he did not
allow Ellis to remove the signs.

13. Ellis asserts that he did not intend for his comments
to cause Rosario to fear retaliation. Ellis now understands how his
statements could have been so interpreted by Rosario, although he
did not mean for this to occur.

14. Section 23(b)(2) G.L. c. 268A prohibits a municipal
employee from knowingly or with reason to know using or attempting
to use his position to obtain for himself or others an unwarranted
privilege of substantial value which is not properly available to
similarly situated individuals.

15. Ellis' exploiting as an elected public official

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his official regulatory power to, in effect, coerce Rosario to take
down Ellis' opponent's campaign signs was a use by Ellis of his
official city council or position.

16. Ellis' use of his official position to effect the
removal of his opponent's campaign signs in a political election
was an unwarranted privilege.

17. The use of signs in a political campaign as described
above is of "substantial value."[2/] The same observation would
seem to apply to such campaign signs placed on the walls of small
businesses for public view. Accordingly, a public official's use of
his official position to effect the removal of his opponent's
campaign signs is an unwarranted privilege of substantial value.

18. The unwarranted privilege which Ellis obtained for
himself was not available to "similarly situated individuals."

19. Thus, by using his position as a city councilor to
get Rosario to take down his opponent's campaign signs, Ellis
knowingly or with reason to know used his councilor position to
obtain an unwarranted privilege of substantial value not properly
available to other similarly situated individuals in violation of
s.23(b)(2).

In view of the foregoing violation of G.L. c. 268A, 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 Ellis:

(1) that Ellis pay to the Commission the sum of five
hundred dollars ($500.00) as a civil penalty for the
violation of G.L. c. 268A, s.s.23(b)(2); and

(2) that Ellis 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 proceeding to which the
Commission is or may be a party.


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[1/] As a ward councilor, Ellis could request a hearing to
revoke a business license in his ward at any time. A majority
Council vote is necessary to revoke a business license.

[2/] A campaign sign advocating the election of a certain
candidate posted in public view potentially increases the
likelihood that candidate will be elected. Similarly, the lack of
such campaign signs backing the candidate's opponent is of benefit
to that candidate. Consequently. in the Commission's view. such
postings (or the prevention of such postings by an opponent)
involve items of substantial intangible value within the meaning of
s.23(b)(2). As the Supreme Court said in City of Ladue v. Gilleo,
114 S.Ct. 2038, 2045 (1994). as to residential signs in political
campaigns:

[S]mall [political campaign] posters have maximum effect
when they go up in the windows of homes, for this
demonstrates that citizens of the district are supporting
your candidate - an impact that money can't buy. [fn. 12,
p. 2045 citing D. Simpson, Winning Elections: A Handbook
in Participatory Politics 87 (rev. ed. 1981).

The same observation would seem to apply to such campaign
signs placed on the walls of small businesses for public view.

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End of Decision