Docket No. 615

In the Matter of Frank Costa

March 19, 2001

Disposition Agreement




The State Ethics Commission and Frank Costa enter into this
Disposition Agreement pursuant to s.5 of the Commission's
Enforcement Procedures. This Agreement constitutes a consented-to
final order enforceable

Page 1000

in the Superior Court pursuant to G.L. c.
268B, s.40).

On May 12, 1999, 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 Costa. The Commission concluded that
inquiry, and on March 22, 2000, found reasonable cause to believe
that Costa violated G.L. c. 268A, s.23(b)(2).

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

1. At all relevant times, Costa served as a Town of Dighton
selectman and board of health member. As such, Costa was a
municipal employee as that term is defined in G.L. c. 268A, s.I(g).
Costa was first elected to the board of selectmen in 1986 and has
served continuously since that time. The board of selectmen also
serves as the board of health.

2. At all relevant times, Veronica Costa ("Veronica"), Costa's
daughter, lived with her husband, David Silva ("David"), at 2033
Elm Street in Dighton in a house they rented from David's mother,
Beatrice Tremblay ("Beatrice"). Beatrice's former husband, now
deceased, caused the Elm Street house to receive its water from an
illegal water line that was run from a house he also owned at 374
School Lane and now owned by David's brother Paul Silva ("Paul").
The Elm Street house continued to receive its water from the School
Lane house during the period Veronica and David lived there.

3. As the result of a dispute between Paul and David regarding
their father's estate, Paul shut off the water to the Elm Street
house on November 13, 1998.

4. On November 13, 1998, Veronica telephoned Costa and
informed him of the shutoff.

5. Costa states that he telephoned several town officials to
solicit their assistance to resolve the problem, however, he was
unable to reach any of them at their offices or homes.

6. Costa then called Paul and told him he (Paul) had created
a "serious health violation" by shutting off the water. Paul
refused to discuss the matter with Costa.

7. On Friday, November 1311 and Saturday, November 14", Costa
telephoned the police department three times to seek their
assistance in getting Paul to turn the water back on.

8. On November 15, 1998, Costa contacted the police department
and requested an officer deliver a letter Costa had written to
Paul. Officer David McGuirk delivered the letter to Paul and
notified Costa of the delivery. (In making this request, Costa knew
that his being a selectman and board of health member would likely
cause the police department to accept his request.)

9. In his November 15, 1998 letter to Paul, Costa cited his
authority as a member of the board of selectmen and board of
health, and ordered Paul to repair the line and restore the water
service to Elm Street by 3:30 p.m. that day, or arrangements would
be made to repair the water line and all associated costs billed to
Paul. Costa also asserted that a complaint had been filed alleging
that Paul willfully and maliciously defiled the Elm Street water
source and that, if the allegations proved true, Paul faced fines
and imprisonment.

10. The other board of selectmen/board of health members never
authorized Costa's actions nor were they even aware of Costa's
actions until November 17, 1998.

11. Under 105 CMR 410.180, an owner must provide his tenant
with potable water, and the board of health has jurisdiction to
force the property owner to do so. Where Paul was not the owner of
the property at 203 3 Elm Street, it would have been inappropriate
for the board of health to direct Paul to take any action regarding
the water line. Moreover, it would have been inappropriate to
re-establish the illegal water connection. The correct action would
have been to direct the property owner to connect 2033 Elm Street
directly to the town water supply.

12. Section 23(b)(2) of 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.

13. Costa knew or had reason to know that he was using his
official position in this matter by as a selectman/board of health
member requesting the police department to deliver his letter, and
by in that letter explicitly invoking his authority as a
selectman/board of health member to order Paul to repair the line
and restore water service.

14. Costa's ability as a municipal official to obtain police
intervention in a private family dispute was a special advantage,
and, as such a privilege.[1] Similarly, Costa's ability to
unilaterally invoke the authority of the selectmen/board of health
in a letter in such a private dispute was also a privilege.

15. These privileges were unwarranted because Costa was not
lawfully authorized to so use his official position. The privileges
were each of substantial values because they made it more likely
that the water would be promptly turned back on, a result in which
Veronica had a significant financial interest. (This water dispute
could

Page 1001

have resulted in Veronica having to find and pay for an
alternative water source and/or in having to pay additional rent
and/or water bills.)

16. These privileges were not properly available to similarly
situated individuals.

17. In summary, by using his official position as a board of
health/board of selectmen member to secure the foregoing
unwarranted privileges of substantial value for his daughter, Costa
violated G.L. c. 268A, s.23(b)(2).

In view of the foregoing violations 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 Costa:

(1) that Costa pay to the Commission the sum of $ 1,000 as a
civil penalty for the violation of G.L. c. 268A, s.23(b)(2);
and

(2) that Costa waive all rights to contest the findings of
fact, conclusions of law and terms and conditions contained
this Agreement or any other related administrative or judicial
proceeding to which the Commission is or may be a party.



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[1] As defined in The American Heritage Dictionary (second
college ed.), a privilege is "A special advantage, immunity,
permission, right or benefit granted to an individual, class or
caste."