Docket No. 444

In the Matter of Frederick Foresteire

July 7, 1992

Disposition Agreement




This Disposition Agreement (Agreement) is entered into
between the State Ethics Commission (Commission) and Frederick
Foresteire (Mr. Foresteire) pursuant to s.5 of the Commission's
Enforcement Procedure. This Agreement constitutes a consented to
final Commission order enforceable in the Superior Court pursuant
to G.L. c. 268B, s.4(j).

On July 11, 1991, the Commission initiated a preliminary
inquiry into possible violations of the conflict of interest law,
G.L. c. 268A, involving Mr. Foresteire, the Everett School
Superintendent. The Commission concluded that inquiry and, on
March 12, 1992, found reasonable cause to believe that Mr.
Foresteire violated G.L. c. 268A, s.s.23(b)(2) and 23(b)(3).

The Commission and Mr. Foresteire now agree to the following
findings of fact and conclusions of law:

1. At all times relevant to this matter, Mr. Foresteire was
the Superintendent of the Everett Schools, and as such, a
municipal employee as defined in G.L. c. 268A, s.1(g). As
superintendent, Mr. Foresteire was directly accountable to the
Everett School Committee (School Committee). The superintendent's
duties include directing and supervising the entire school system
(teachers, maintenance, and support staff) and working on the
school department budget. Additionally, the superintendent, as
the secretary of the School Committee, makes recommendations but
has no vote on the School Committee.

2. At all times relevant to this matter, John Shay (Shay)
was a School Committee member. As a School Committee member,
Shay's responsibilities include determining Everett School
Department (School Department) policy, discussing and voting on
budgetary matters and annually voting on various personnel
matters.

3. In April 1990, Shay was in the process of moving into a
new apartment. On April 4, 1990, Shay telephoned Mr. Foresteire
to discuss School Committee matters. During that conversation,
Shay told Mr. Foresteire that he was having trouble with the
workers he had hired to paint his new apartment and that he
feared the apartment would not be ready for the upcoming weekend
move.

4. The next day, Mr. Foresteire approached a School
Department painter (painter) who was working in the school
administration building and asked him to take a look at Mr.
Shay's apartment and provide advice as to what could be done to
finish on time.

5. Later that day, Mr. Foresteire and the painter travelled
to and examined Mr. Shay's apartment. The painter told Mr.
Foresteire that a significant amount of work needed to be done
prior to the weekend move. The painter agreed to assist in the
apartment painting and requested a personal day, which Mr.
Foresteire granted.[1]

6. Over the next three days, the painter worked over 22.5
hours and expended approximately $300 in labor and supplies.V
Prior to painting Shay's apartment, the painter had never
personally met Mr. Shay, although he knew he was a School
Committee member.

7. Shay encountered the painter working in his apartment on
two or three occasions. Shay became aware through these
encounters that the painter was a School Department employee.
Shay never offered to and ultimately never did compensate the
painter.

8. On April 9, 1990, Mr. Foresteire approached the painter
at the school and inquired as to whether he was compensated for
his services. The painter informed Mr. Foresteire that he had not
been compensated for his services.

9. Section 23(b)(3) prohibits a municipal employee from
acting in a manner which would cause a reasonable person, having
knowledge of the relevant circumstances,

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to conclude that any person can improperly influence or unduly
enjoy his favor in the performance of his official duties.

10. By soliciting the School Department painter's services
for Shay, Mr. Foresteire acted in a manner which would cause a
reasonable person, having knowledge of the relevant
circumstances, to conclude that either Shay[3] or the painter
could improperly influence or unduly enjoy his favor in the
performance of his official duties. Therefore, Mr. Foresteire
violated G.L. c. 268A, s.23(b)(3).

Based on the foregoing facts, 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 Mr.
Foresteire:

1. that he pay to the Commission the amount of two hundred
and fifty ($250.00) as a civil fine for violating G.L. c. 268A,
23(b)(3);

2. that he will act in conformance with the requirements of
G.L. c. 268A in his future conduct as a municipal employee; 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 related administrative or judicial
proceeding to which the Commission is or may be a party.

-----------------------------------

[1] A School Department employee is allocated two personal
days a year.

[2] The painter worked in Mr. Shay's apartment on Thursday,
April 5 from 4:00 p.m. to 10:30 p.m.; on Friday, April 6 from
7:30 a.m. until 3:30 p.m. (personal day); and on Saturday, April
7 from 8:00 a.m. to 4:00 p.m. for a total of approximately 22.5
hours. The estimated value of the labor is $225. and the
painter's own supplies is $24.

[3] Shay's receipt of the free paint job also raises
conflict of interest issues for Shay. In re Shay, 1992 SEC 589
(school committee member fined $750 for violating s.3 by
receiving gratuitous paint job from subordinate school department
employee).

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