Docket No. 466

In the Matter of Dominic Divirgilio

April 29, 1993

Disposition Agreement




This Disposition Agreement (Agreement) is entered into
between the State Ethics Commission (Commission) and Dominic
DiVirgilio (DiVirgilio) 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. 268A, s. 4(j).

On April 13, 1992, the Commission initiated, pursuant to
G.L. c. 268B, s. 4(a), a preliminary inquiry into alleged
violations of G.L. c. 268A, by DiVirgilio. The Commission has
concluded its inquiry and, on April 13, 1993, by a unanimous
vote, found reasonable cause to believe that DiVirgilio violated
G.L. c. 268A, ss. 23(b)(2) and 23(b)(3).

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

1. DiVirgilio was, during the time relevant here, the
Commissioner of the Dedham Department of Public Works. As such,
DiVirgilio was a municipal employee as that term is defined in
G.L. c. 268A, s. 1.

2. In November 1990, DiVirgilio partially prepared,
approved and submitted through channels for payment an $825
invoice from John's Autobody. The November 14, 1990 invoice
stated that John's Autobody repaired the rear quarter panels and
store boxes on DPW truck #8 (a Ford utility vehicle used by the
mechanics). In accordance with the invoice and a payment voucher
signed by DiVirgilio, the Town of Dedham paid John's Autobody
$825.

3. John's Autobody performed no work to DPW truck #8. In a
February 1990 interview with Commission staff, DiVirgilio
asserted that he mistakenly filled out the invoice, and that the
work was actually done to DPW truck #9 (the sewer department's
flush truck). John's Autobody, however, performed no work to
truck #9.

4. General laws c. 268A, s. 23(b)(2) prohibits a municipal
employee from knowingly, or with reason to know, using his
official position to secure for others unwarranted privileges of
substantial value. By securing for John's Autobody $825 for work
to a DPW vehicle that had not been performed, DiVirgilio violated
G.L. c. 268A, s. 23(b)(2).

5. Since 1984, DiVirgilio has exclusively hired John's
Autobody to perform autobody repairs to DPW trucks. DiVirgilio
has never sought price comparisons from other shops for this
work. In calendar year 1989, John's Autobody received $4,844.00
from the Town of Dedham for the repair of six DPW vehicles. In
calendar year 1990, John's Autobody received $3,298.30 from the
Town of Dedham for the repair of seven DPW vehicles. Prior to
John's receiving payment, DiVirgilio reviewed each of its
invoices and approved them for payment by endorsing a payment
voucher.

6. In July 1990, John's Autobody restored a 1969 Ford
Galaxy owned by DiVirgilio. The value of the work has been
estimated to be between $1,500 - $2,500. DiVirgilio states he
paid $1,500 cash to John's Autobody for the work. Neither
DiVirgilio, nor John's Autobody, possesses a contemporaneously
produced written document, such as a receipt or an invoice, that
substantiates the $1,500 payment. Mr. DiVirgilio's credit union
account, however, shows a $1,000 withdrawal on July 17, 1990 and
John's Autobody's bank records indicate a $1,000 cash deposit on
July 18, 1990.

7. General Laws c. 268A, s. 23(b)(3) prohibits a municipal
employee from acting in a manner which would cause a reasonable
person, having knowledge of the relevant circumstances, to
conclude that any person can improperly influence or unduly enjoy
his favor in the performance of his official duties. The

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Commission has consistently interpreted s. 23(b)(3) as forbidding
a public official from engaging in private dealings with
individuals whom they officially regulate. See, e.g. In re
Pezzella, 1991 SEC 523; In re Keverian, 1990 SEC 460; In re
Garvey, 1990 SEC 478. Such private dealings create the appearance
that the government vendor will give the regulating official
private services (here, discounted autobody work) it would not
otherwise provide, and that the vendor will receive preferential
treatment (here, DPW autobody business) from the official. Thus,
by having John's Autobody restore his Ford Galaxy, DiVirgilio
violated s. 23(b)(3).

8. Since 1984, DiVirgilio has purchased diesel fuel for
the DPW exclusively from the Prevett Oil Company. DiVirgilio has
never placed the DPW's diesel fuel business out to competitive
bid, or ever sought price comparisons from other fuel suppliers.
The DPW purchased $9,892.08 worth of fuel and services from
Prevett Oil in FY 1990, $8,092.56 in FY 1991, and $6,522.10 in
1992.

9. The owner of Prevett Oil, Anthony Prevett, and
DiVirgilio are former classmates. They belong to the same social
organization and have vacationed together at Mr. Prevett's
Florida home.

10. Chapter 5 of the Dedham town by-law requires all town
purchases exceeding $4,000 to be awarded pursuant to a written
bid following an advertisement in a local newspaper.

11. As discussed earlier, s. 23(b)(2) prohibits a municipal
official from using his official position to secure for another
an unwarranted privilege of substantial value. By purchasing
diesel fuel totalling over $25,000 over a three year period from
a friend's company in contravention of competitive bid laws,
DiVirgilio violated s. 23(b)(2).

12. In December 1991, DiVirgilio allowed the Struzziery
Construction Company to use the DPW cement mixer on a private job
it was performing in the Riverdale section of Dedham. The cement
mixer remained in the Struzziery Construction Company's
possession until February 1993. The construction company paid no
rental fee to the DPW.

13. The DPW purchased the cement mixer from the Parker-
Danner Company for $1,700 in 1984. The Parker-Danner Company
currently rents a similar model for $255 per week, or $550 per
month.

14. By allocating public resources for the private use of
the Struzziery Construction Company, DiVirgilio used his official
position to secure for that company an unwarranted privilege of
substantial value in violation of s. 23(b)(2).

In view of the foregoing violations of G.L. c. 268A by
DiVirgilio, 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 by DiVirgilio:

(1) that DiVirgilio pay to the Commission the sum of $2,000
as a civil penalty for violating s. 23(b)(2) by knowingly,
or with reason to know, using his official position to
secure for John's Autobody an unwarranted privilege of
substantial value, to wit, an $825 payment for work it did
not perform; and

(2) that DiVirgilio reimburse the Town of Dedham $825 for
the payment made to John's Autobody; and

(3) that DiVirgilio pay to the Commission the sum of $1,000
as a civil penalty for violating G.L. c. 268A, s. 23(b)(2)
by purchasing diesel fuel for the DPW from the Prevett Oil
Company without following proper bidding procedures while,
at the same time, he had a private social relationship with
the owner of Prevett Oil; and

(4) that DiVirgilio pay to the Commission a sum of $500 as a
civil penalty for violating G.L. c. 268A, s. 23(b)(2) by
allowing the Struzziery Construction Company the private use
of the DPW cement mixer; and

(5) that DiVirgilio 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.