February 12, 2009


Decision and Order

 

Appearances:

Candies Pruitt-Doncaster, Esq.
Counsel for Petitioner

David Berman, Esq.
Counsel for Respondent

Commissioners: Kane, Veator and King [1] /
Presiding Officer: Commissioner Patrick J. King

 

Background

 

On March 14, 2008, Petitioner issued an Order to Show Cause ("OTSC") against Respondent Frederick Foresteire ("Foresteire"), the Superintendent of the public schools in the City of Everett ("City"). It subsequently filed an amended OTSC ("AOTSC") on March 21, 2008.

The AOTSC alleges that in 2002, Foresteire requested, through the City's school staff, the services of a school maintenance worker to perform plumbing work at his home, and the services of school employees to obtain, cut and deliver plywood to his home. The AOTSC further alleges that Lona DeFeo ("DeFeo") the School Department Maintenance Manager, directed various school employees to do such work, some of which involved the use of school equipment, and some of which Foresteire knew or should have known was done on School Department time, and that he did not make any payment or reimbursement to the School Department for costs relating to the plywood. Finally, the AOTSC alleges that Foresteire unilaterally determined the amount to be paid for the plumbing work done by a School Department employee, thereby securing for himself a substantial discount. The AOTSC alleges that by engaging in this conduct, Foresteire violated G.L. c. 268A, section 23(b)(2) and G.L. c. 268A, section 23(b)(3).

Foresteire filed his original Answer on April 15, 2008 and an Amended Answer on April 28, 2008. In his Amended Answer, Foresteire denied any violation and asserted two affirmative defenses: the OTSC was not, with respect to either charge, issued within three years after a disinterested party knew of it and is therefore barred; and if he received plumbing services and/or plywood without paying the true value thereof, he did not solicit them and had no awareness of them.

A pre-hearing conference was held on May 16, 2008. Foresteire filed a Motion for Summary Decision and Memorandum in Support Thereof ("Summary Decision Motion") on the grounds that the OTSC failed to state a claim or, in the alternative, the matter was barred by the statute of limitations. After a hearing on June 19, 2008, the Presiding Officer denied the Summary Decision Motion.

Thereafter, on July 15, 2008, Petitioner filed a Motion to Bifurcate the Statute of Limitations and the Merits of the Order to Show Cause ("Bifurcation Motion") to which Foresteire assented. The Bifurcation Motion was allowed by the Presiding Officer on August 1, 2008. A further pre-hearing conference was held on August 12, 2008.

On September 2, 2008, the parties filed a Joint Motion to Consolidate Proceedings as to the Statute of Limitations ("Joint Motion to Consolidate"). The Joint Motion to Consolidate requested that the case be consolidated with the case of In Re Lona DeFeo, Adjudicatory Docket No. 08-0005, for the adjudicatory proceedings as to the discrete issue of the statute of limitations. The Joint Motion to Consolidate was allowed by Order of the Commission issued September 18, 2008.

Thereafter, an evidentiary hearing on the issue of the statute of limitations in the consolidated cases was held on September 22, 2008. After reviewing with the parties his initial determination as to the issues, the Presiding Officer informed them he would refer the matter of the statute of limitations to the full Commission for its review and determination at the conclusion of the case.

A further evidentiary hearing on the merits was held on December 10, 2008 and December 11, 2008. At the hearing, the parties made opening statements and introduced evidence through witnesses and exhibits. At the conclusion of Petitioner's case, Foresteire filed a Motion to Dismiss on the grounds that upon the facts alleged and/or the law, Petitioner had not sustained its case. After hearing argument from the parties, the Presiding Officer denied the Motion to Dismiss. The parties presented closing arguments to the Presiding Officer on December 11, 2008, and subsequently filed briefs on January 9, 2009.

In rendering this Decision and Order, each undersigned member of the Commission has considered the testimony, the evidence in the public record and the arguments of the parties.

 

II. Findings of Fact


1. Frederick Foresteire ("Foresteire") has been the Superintendent of the public schools in the City of Everett ("City") since 1989. Foresteire is a municipal employee.

2. Foresteire has all the duties and powers vested in him by statute and by his agreement with the City's School Committee.

3. Dorothy Foresteire ("Dorothy") is Foresteire's wife.

4. Lona DeFeo ("DeFeo") has been the Maintenance Manager for the City's public schools since 1991. Throughout 2002, DeFeo reported to Foresteire.

5. Debbie Dunbrack ("Dunbrack") who began working for the City's public schools in June 2000 is a secretary in the Maintenance Department. As secretary, her duties include giving work assignments, doing payroll, answering the phones and keeping attendance. Dorothy is Dunbrack's sister. Foresteire is her brother-in-law.

6. Michael Pomer ("Pomer") works in the City's School Department. His duties include plumbing, heating, clean-up, lawn care and deliveries. In 2002, Pomer was the only plumber in the School Department.

7. John Howe ("Howe") worked for the schools' Maintenance Department as a carpenter from August 1997 until June 2003 when he was laid off. His duties included repairing doors, windows and remodeling work.

8. William O'Leary ("O'Leary") is currently a custodian at the City's High School. In 2002, he worked in the public schools' Maintenance Department. O'Leary lives next door to DeFeo. His mother is friends with DeFeo and is also DeFeo's tenant.

9. Throughout 2002, Pomer, Howe and O'Leary reported to DeFeo. DeFeo is Dunbrack's supervisor.

10. For the reasons set forth below in Section III C, the Commission finds that this proceeding was commenced within the applicable statute of limitations.

 

Plumbing Work at Foresteire's Home

 

11. Dunbrack and Pomer have known each other for 18-20 years. He was her father's plumber. They have a friendly relationship. Pomer was looking for outside work at times while employed by the School Department. He also experienced financial problems. Dunbrack loaned Pomer money and was looking to find outside work for him.

12. In 2002, Foresteire and Dorothy were remodeling their home. Dunbrack learned from a conversation with Dorothy that the remodeling would involve some plumbing work. Dunbrack suggested to Dorothy that she hire Pomer as a plumber because she and Pomer were friends and she knew that he was looking to make extra money.

13. Dorothy told Dunbrack that "they would consider" using Pomer's services. By "they," Dorothy meant she and Foresteire.

14. Pomer has known Foresteire for over thirty years. Pomer does not have a social relationship with Foresteire or any of his relatives.

15. Pomer had previously done work at the Foresteire home. In the spring of 2002, he repaired a garbage disposal at the Foresteire home. Dunbrack asked him to do that work. He did not ask either Foresteire or his wife for payment for that work and did not suggest to Dunbrack that they should ask the Foresteires for payment.

16. Dunbrack asked Pomer if he would be interested in doing some work at Foresteire's home to which he responded "yes." He was originally told by Dunbrack to go to Foresteire's home to see what plumbing work needed to be done. DeFeo told him to go do plumbing work at Foresteire's home once or twice.

17. Between April 2002 and November 2002, Pomer did plumbing work at Foresteire's home on approximately twenty occasions as directed by Dunbrack or DeFeo. Pomer took orders from Dunbrack because she gives out the assignments for work orders. Dunbrack, in turn, got these assignments from DeFeo, Foresteire or the principals at the schools. Dunbrack got the direction from Foresteire for Pomer to do work at Foresteire's house.

18. Pomer's plumbing work at Foresteire's home involved replacing fixtures in the first and second floor bathrooms, replacing the kitchen sink and adding some heat in the kitchen. He saw Foresteire while performing work at his house.

19. Pomer's work day for the Maintenance Department was from 8:00 a.m. to 3:00 p.m., with an unpaid, twenty minute lunch break. He did the work at Foresteire's home during his regular School Department hours. There were times when he was in the middle of doing work and knew that he would need to go back to Foresteire's house to finish the work.

20. Pomer had no conversations or discussion with Foresteire concerning the price for his work and did not negotiate a price with him. Pomer did not discuss compensation with Foresteire at the outset because he "felt a little bit uncomfortable" as Foresteire "was [his] boss."

21. In return for his work at Foresteire's home, Pomer was paid a total of $1,960. He would ordinarily have charged $3,000 for that private work. Pomer would have been willing to give Foresteire a 25% discount ($750), resulting in a total price for the work of $2,250, but Foresteire, who just paid what he wanted, did not give him an opportunity to offer the discount.

22. Pomer was paid by check for work on Foresteire's home on four separate occasions. The checks were drawn on a joint account for Dorothy and Foresteire. The checks were signed by Dorothy. Foresteire gave two checks to Pomer.

23. While doing the work at Foresteire's house, Pomer was receiving his School Department salary. During the entire time period that Pomer was working at Foresteire's home, he took at most three days of vacation according to the School Department records. It is unlikely that he used any of his vacation time on the twenty occasions that he did work at Foresteire's home. After Dunbrack prepared the payroll records, she e-mailed them to City Hall and then sent them to Foresteire.

24. Pomer felt uncomfortable doing work at Foresteire's house when he should have been working at the schools. He complained on a few occasions to DeFeo about it.

 

The Plywood


25. Howe's work hours were from 7:00 a.m. to 3:00 p.m., with a twenty minute lunch break. Howe has done private work at Foresteire's house on several occasions which included putting in a frame on an air conditioner on the second floor, putting up Christmas lights and hanging a track and some lights, for which he was paid by Foresteire.

26. In October 2002, DeFeo beeped Howe on his beeper and when he called her, DeFeo told him to go to Burnett & Moynihan to pick up plywood, to bring it back to the High School, to cut it into 2 x 8 sheets and to leave it on the bench.

27. Howe went to Burnett & Moynihan as instructed using the School Department's truck. He signed a receipt for 26 sheets of plywood. [2] / Although Howe had the authority to place small orders for the School Department with Burnett & Moynihan, 26 sheets of plywood was a large order of the type that would be placed by DeFeo.

28. At the direction of DeFeo, Howe loaded the plywood onto the School Department truck, took it back to the High School, cut it into 52 2 x 8 sheets and left it on the bench. These activities took a total of three to four hours. Howe did this work during School Department hours.

29. O'Leary picked up the plywood from the High School and delivered it to Foresteire's home using the School Department's truck. Other than his School Department salary, Howe was not paid by anyone for the work that he did with the plywood.

30. The cost for the plywood picked up by Howe was $234. The invoice for the plywood was paid for by the City.

31. Foresteire was indicted for receiving stolen School Department air conditioners in March 2004. That case was continued without a finding after the judge found that there were sufficient facts to warrant a jury finding of guilty. After payment of a fine and a one year probationary period, the indictment was dismissed.

 

Decision

 

In adjudicatory proceedings before the Commission, the burden of proof is on Petitioner, which must prove its case by a preponderance of the evidence. [3] /  The weight to be attached to any evidence rests in the sound discretion of the Commission. [4] / The Commission is also responsible for making determinations about the credibility of the witnesses. [5] /

 

The Section 23(b)(2) Allegations

 

Section (23)(b)(2) of G.L. c. 268A prohibits a municipal employee from "knowingly, or with reason to know . . . us[ing] or attempt[ing] to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals." In order to establish a violation of G.L. c. 268A, section 23(b)(2), Petitioner must prove by a preponderance of the evidence that: (1) Foresteire is a municipal employee ; (2) who knowingly or with reason to know; (3) used or attempted to use his official position; (4) to secure an unwarranted privilege or exemption [6] / for himself or others; (5) which was of substantial value; and (6) which was not properly available to similarly situated individuals.

Petitioner alleges that Foresteire, knowingly or with reason to know, used his position as Superintendent to obtain the unwarranted privileges of having School Department employees do private work for him on School Department time using School Department resources, and in the case of the plywood, for which he made no payment or reimbursement to the School Department, and, in the case of the plumbing services, for which he unilaterally determined payment to the School Department employee, thereby securing for himself a substantial discount. Petitioner further alleges that the use of School Department employees and resources was of substantial value and was not properly available to similarly situated individuals. Foresteire admits that, since 1989, he has been the Superintendent of the City's public schools and that he is a municipal employee. The remaining elements of a section 23(b)(2) violation, however, are contested. We find that Petitioner has proven by a preponderance of the evidence that Foresteire violated G.L. c. 268A, section 23(b)(2) as follows.

 

Foresteire Used His Position as Superintendent

 

The term "use" is not defined in the conflict of interest law. Accordingly, the word must be given its ordinary meaning and approved usage. See Gateley's Case, 415 Mass. 397, 399 (1993); G.L. c. 4, section 6, Third (words and phrases construed according to "common and approved usage of the language"). Use has been defined as "to use, employ." Webster's Third New International Dictionary 2523 (1993). Applying these principles, we find that Foresteire used his position as Superintendent.

As Superintendent, Foresteire's duties included "directing and supervising the entire school system (teachers, maintenance, and support staff)." In Re Foresteire, 1992 SEC 590, 590 (Disposition Agreement). As such, he was responsible for directing and supervising DeFeo, Pomer, Howe and O'Leary. In addition, throughout 2002, DeFeo reported to Foresteire.

DeFeo directed Pomer on at least one or two occasions to go do private work at Foresteire's home. As the individual to whom DeFeo reported and as the person to whose home Pomer was sent, we can reasonably infer that DeFeo sent Pomer at Foresteire's direction. This inference is based on the fact that Foresteire was aware that Pomer was performing work at his home during School Department hours because Pomer saw him there, and because Foresteire personally paid Pomer for doing that work. In addition, Foresteire was sent the payroll records which reflected that Pomer was not using vacation time to do private work at his house. As such, we find that Foresteire used his position as Superintendent to allow Pomer to do private work at his home during School Department hours.

We further find that Foresteire used his position to have Pomer do such work without any conversation, discussion or negotiation about the price. Rather, Foresteire unilaterally determined the price that he would pay for such work and did so, which price was lower than what Pomer would have charged someone else and even lower than the discount Pomer would have offered to Foresteire, had he been given the opportunity to do so. Pomer "felt a little bit uncomfortable" discussing price with Foresteire at the outset because Foresteire "was [his] boss."

Our finding is supported by prior Commission opinions. The Commission has previously noted the "inherently exploitable nature" of a private business relationship between a supervisor and his subordinate employee. EC-COI-92-7. In such circumstances, even if no abuse occurs, the possibility that the public official may have taken unfair advantage of the situation can never be completely eliminated. Id. In order to satisfy the requirements of section 23(b)(2), the private business relationship must be entirely voluntary and be initiated by the subordinate. Pomer, however, was uncomfortable doing work at Foresteire's home during his School Department hours when he, the only plumber for the Maintenance Department, felt that he should have been working at the schools, and he complained about doing so to DeFeo.

We also find that Foresteire used his position as Superintendent to obtain free plywood, cut to specifications and delivered to his home by School Department employees, Howe and O'Leary, using School Department time and School Department resources, and which was paid for by the City. DeFeo, who reported to Foresteire, beeped Howe, told him to use a School Department truck to pick up plywood at Burnett & Moynihan, deliver it to the High School, cut it into 2 x 8 sheets, stack it and leave it on the bench, all of which he did. DeFeo also used her position to direct O'Leary, who also reported to her, to deliver the plywood to Foresteire's home using a School Department truck and on School Department time. Even if she did not personally direct O'Leary to do so, as the individual to whom he reported, we can reasonably infer that she knew or had reason to know of O'Leary's use of School Department time and resources for the delivery of plywood to Foresteire's home, particularly given her prior instructions to Howe.

Where Foresteire is the Superintendent to whom DeFeo reports, and when he has the power to direct and supervise the entire school system, including the Maintenance Department employees, and when the matter involves private work at his home and for his benefit, we can reasonably infer that Foresteire directed DeFeo to arrange such work on his behalf. Dunbrack and her sister Dorothy did not have either the power or authority to give instructions to DeFeo, particularly an instruction that would result in the use of School Department time and resources for private work. In the alternative, we can reasonably infer that even if Foresteire did not initially give the instruction to DeFeo, he subsequently knew or should have known that such work was being done on School Department time, using School Department resources and he did nothing to stop it.

 

Foresteire Secured Unwarranted Privileges for Himself

 

The conflict of interest law does not define either "unwarranted" or "privilege." Unwarranted is generally defined as "[h]aving no justification; groundless." The American Heritage Dictionary, Second College Edition 1327 (1991); Webster's Third New International Dictionary 2514 (1993) ("lacking adequate or official support: unjustified, unauthorized"); EC-COI-98-2. Privilege is generally defined as "a special legal right, exemption or immunity granted to a person or class of persons; an exception to a duty." Black's Law Dictionary 1234 (8 th ed. 1999). See In Re Costa, 2001 SEC 1000, 1002 n.1 (privilege is "'[a] special advantage, immunity, permission, right or benefit granted to an individual, class or caste'") quoting The American Heritage Dictionary ( Second College Ed.). The Commission has noted that "section 23(b)(2) dictates that the use of public time and resources must be limited to serving the public rather than private purposes." EC-COI-98-2 quoting EC-COI-95-5 (use of public resources by public employees for private purposes constitutes an unwarranted privilege). Applying these principles, we find that Foresteire secured unwarranted privileges for himself.

The unwarranted privileges were School Department maintenance employees doing private work for him on School Department time, using School Department resources. There is no evidence in the record that Foresteire reimbursed the School Department or the City for the use of School Department time and resources. Moreover, Foresteire admits that the City paid an invoice for plywood, but denies that that plywood was delivered to his home. The unwarranted privileges also include having Pomer do plumbing work at his home without agreeing to a price and then paying an amount solely determined by him while he was Pomer's boss.

 

The Unwarranted Privileges Were of Substantial Value

 

The Commission has previously stated that substantial value is $50 or more. Life Insurance Association of Massachusetts, Inc. v. State Ethics Commission, 431 Mass. 1002, 1003 (2000). We find that the unwarranted privileges of having School Department employees doing private work for Foresteire on School Department time using School Department resources were of substantial value.

 

The Unwarranted Privileges Were Not Properly Available
to Similarly Situated Individuals

 

Similarly situated individuals would be those City residents who in 2002 were also undertaking renovations to their homes. [7] / Such individuals would not have been able to obtain labor from School Department employees on School Department time or the use of School Department resources such as a truck and a saw for their personal home renovations. We find that a City resident or another School Department employee who did not have supervisory authority over, or to whom DeFeo, Pomer, Howe or O'Leary did not report, would not have had the ability or opportunity to direct them to arrange or to do private work on City time, using City resources. See EC-COI-95-5 (use of municipal resources by municipal employees for personal purposes constitutes an unwarranted privilege not available to similarly situated individuals). Finally, we find that a similarly situated individual would not have been able to unilaterally determine what they would pay for Pomer's pluming services.

 

Foresteire Acted Knowingly or With Reason to Know

 

"Knowingly" is not defined in the conflict of interest law. It has been defined as "in a knowing manner . . . with awareness, deliberateness, or intention." Webster's Third New International Dictionary 1252 (1993) . See Still v. Commissioner of Employment and Training, 423 Mass. 805, 812 (1996) (act done knowingly "'if it is [the] product of conscious design, intent or plan that it be done, and is done with awareness of probable consequences'"), quoting Black's Law Dictionary 872 (6 th ed. 1990). "Reason to know" is also not defined in the conflict of interest law. It has been defined to "indicat[e] or denot[e] that the actor has, within his knowledge, facts from which a reasonable person of ordinary prudence and intelligence might infer the existence of a certain fact in question. Alternatively, the actor could regard the existence of the particular fact in question as so legally probable that he would base his conduct upon the assumption that the fact existed." Fidler v. Eastman Kodak Co., 555 F. Supp. 87, 92 (D. Mass. 1982), aff'd, 714 F.2d 192 (1 st Cir. 1983) (applying discovery rule to determine statute of limitations in products liability action). We find that Foresteire knowingly or with reason to know used his position as the Superintendent of Schools to obtain unwarranted privileges of substantial value for himself.

As to the plumbing work, Petitioner offered direct proof of Foresteire's knowledge in the form of Pomer's testimony that he saw Foresteire while he was at Foresteire's house to perform the work, and that Foresteire personally paid Pomer for doing the work more than once. In addition, Petitioner also offered proof that Foresteire knew that Pomer was doing that work on School Department time without taking a vacation day because Foresteire received the payroll records showing that to be the case.

As to the plywood, Petitioner's proof of knowledge was circumstantial but sufficient to meet Petitioner's burden of proof. Howe delivered 52 2 x 8 plywood sheets to Foresteire's home in a City School Department truck. The amount of plywood was large enough that DeFeo would have had to place the order. While there was no testimony by O'Leary that he saw Foresteire when he delivered the plywood, it is a reasonable inference that Foresteire knew the source of the plywood and how it came to be at his house. In an earlier Commission prosecution for soliciting a City School Department employee to perform private work, Foresteire entered into a Disposition Agreement by which he agreed "that he will act in conformance with the requirements of G.L. c. 268A in his future conduct as a municipal employee." In Re Foresteire, 1992 SEC 590, 591. This imposed a duty on him to ascertain the circumstances of the work done at his home. In addition, a judge found sufficient facts from which a guilty finding could be made relating to Foresteire's receipt of stolen School Department air conditioners. See John Doe, Sex Offender Registry Board No. 89230 v. Sex Offender Registry Board, 452 Mass. 764, 777 (2008) (administrative agency can use even unproven prior acts to determine whether there has been repetitive behavior).

 

­The Section 23(b)(3) Allegations

 

Section 23(b)(2) of G.L. c. 268A prohibits a municipal employee from knowingly or with reason to know, "act[ing] 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, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person." Section 23(b)(3) further provides that "[i]t shall be unreasonable to so conclude if such . . . employee has disclosed in writing to his appointing authority or, if no appointing authority exists , discloses in a manner which is public in nature, the facts that would otherwise lead to such a conclusion."

In order to establish a violation of G.L. c. 268A, section 23(b)(3), Petitioner must prove by a preponderance of the evidence that Foresteire: (1) was a municipal employee; (2) who, knowingly or with reason to know, acted in a manner; (3) which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude; (4) that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. [8] /  Petitioner alleges that Foresteire, having jurisdiction over all the City's school staff, was poised to act in his official capacity vis a vis his subordinates, DeFeo, Pomer, Howe and O'Leary while work was being done. It further alleges that a reasonable person, having knowledge of the relevant circumstances, could conclude that DeFeo, Pomer, Howe and/or O'Leary could improperly influence or unduly enjoy Foresteire's favor in the performance of his official duties or that he was likely to act as a result of their undue influence. Wefind that Petitioner has not proven by a preponderance of the evidence that Foresteire violated G.L. c. 268A, section 23(b)(3) as follows.

Foresteire admits that he was the Superintendent and that he was a municipal employee. He further admits that throughout 2002, DeFeo reported to him. However, there is insufficient evidence in the record to establish that DeFeo, Pomer, Howe and/or O'Leary could improperly influence him or unduly enjoy his favor in the performance of his official duties. For example, Howe was laid off in June 2003 despite having done work at Foresteire's home. Moreover, there is insufficient evidence in the record as to how Foresteire was poised to act regarding DeFeo, Pomer, Howe and/or O'Leary at the time that the work was done. In the absence of such evidence, Petitioner has failed to prove a violation of section 23(b)(3).

 

The Statute of Limitations Issue

 

The Commission's regulations include a three year statute of limitations. [9] /   When a Respondent asserts a statute of limitations defense, as Foresteire has done, Petitioner has the burden of showing that a disinterested party learned of the violation no more than three years before the OTSC was issued. With respect to alleged violations of G.L. c. 268A section 23, such as those with which Foresteire is charged, Petitioner must do so by submitting (1) an affidavit from an Enforcement Division investigator proving that no complaint relating to the charged violation was received by the Commission more than three years before the OTSC, and (2) an affidavit from the Respondent's public agency that the agency was not aware of any complaint relating to the charged violation more than three years before the OTSC. [10] /   We find, based on credible evidence presented at the September 22, 2008 evidentiary hearing, that Petitioner has satisfied this burden.

The OTSC was issued in March 2008. Petitioner previously submitted the affidavit of Senior Investigator David Giannotti affirming that he has reviewed the Enforcement Division's case files and complaint files and that the earliest complaint relating to the violations alleged in the OTSC was received by the Enforcement Division in December 2006. [11] /   Foresteire does not dispute that Petitioner has satisfied this aspect of its burden under 930 CMR 1.02(10) (c).

Petitioner has demonstrated that Foresteire's public agency was not aware of any complaint relating to his alleged violations more than three years before the OTSC was issued. Foresteire's public agency was the City's public schools, and we accordingly consider whether the City's School Committee, which has responsibility for the City's public schools, had received any complaint against Foresteire concerning plumbing work and delivery of plywood to his house as of March 2005, three years prior to the issuance of the OTSC.

First, we find credible the testimony of Assistant Deputy Inspector General Daniel O'Neil that his office did not learn of the allegation involving the plywood until after the March 31, 2004, Special Meeting of the School Committee, and did not inform the School Committee of that allegation until December 2006. Second, we find credible Mayor Ragucci's testimony that he did not know about the allegations in the OTSC at the time of the March 31, 2004 School Committee meeting. Neither Ragucci nor O'Neil had a motive to be untruthful regarding the date they learned of the allegations in the OTSC. Moreover, had Ragucci known about the plumbing and plywood allegations on March 31, 2004, we can infer that he would have raised those issues at the Special Meeting of the School Committee.

By contrast, we find that two of the four School Committee members who testified that the plumbing and/or plywood allegations were discussed in March 2004 have reason to favor Foresteire, as they have relatives currently employed by the City's public schools. In addition, five School Committee members testified that no complaints were made to the School Committee concerning those allegations prior to January 2007. We therefore conclude that the weight of the credible evidence establishes that the City's School Committee did not learn of the alleged violations by Foresteire that are the subject of this proceeding until December 2006, less than three years before the OTSC was issued.

Petitioner having satisfied its burden of proof under 930 CMR 1.02(10) (c), Foresteire can prevail on his statute of limitations defense only if he shows that the relevant events were either (1) a matter of general knowledge in the community, or (2) the subject of a complaint to the Commission, the Attorney General, a District Attorney, or the City's School Committee. [12] /   We find that the allegations contained in the OTSC were not a matter of general knowledge in the community. Based on credible evidence presented at the hearing, we find that only a small group of individuals, including their friends and relatives and some School Department employees, had knowledge of the allegations contained in the OTSC. In addition, although several rumors concerning the allegations contained in the OTSC appeared on a blog, there is no evidence regarding the number of individuals who viewed the blog, nor is there any evidence concerning the information contained in the blog. Further, although there is credible evidence that a small number of individuals in the City had heard rumors that Foresteire received free plywood and had plumbing services at his home performed by a School Department employee, these rumors do not amount to proof that the plumbing and plywood matters were matters of general knowledge in the community.

Likewise, Foresteire failed to demonstrate that the relevant events were a subject of complaint to any other disinterested party. See Nantucket v. Beinecke, 379 Mass. 345, 350-51 (1979) (statute of limitations begins to run when a disinterested person capable of acting on behalf of the plaintiff to enforce the conflict of interest law knew or should have known of the wrong). As explained above, there was no evidence presented that any such complaint was made to the Commission or to the City's School Committee prior to March 2005. There was also no such evidence of any such complaint to the Attorney General or any District Attorney. The March 2004 Middlesex County indictments related to different conduct by Foresteire and DeFeo.

In sum, we conclude, based upon the credible evidence presented, that Foresteire does not prevail on his statute of limitations defense.

 

IV. Conclusion

 

Petitioner has proven by a preponderance of the evidence that Respondent Frederick Foresteire violated G.L. c. 268A, section 23(b)(2) when he knowingly or with reason to know used his position as the Superintendent of the City's public schools to obtain for himself, the unwarranted privileges of substantial value in having School Department employees use school time and school resources to do private work for him at his home and for receiving plywood paid for by the City which were not properly available to similarly situated individuals. Petitioner has failed to prove by a preponderance of the evidence that Foresteire violated section 23(b)(3).

 

V. Order


Having concluded that Respondent Frederick Foresteire violated G.L. c. 268A, section 23(b)(2) and pursuant to the authority granted it by G.L. c. 268B, section 4(j), the State Ethics Commission hereby ORDERS Frederick Foresteire to pay a civil penalty of $6,000. [13] /

 

DATE AUTHORIZED: January 16, 2009

DATE ISSUED: February 12, 2009

 

___________________________ 
Matthew N. Kane 

 

___________________________
David L. Veator

 

___________________________
Patrick J. King

 

NOTICE OF APPEAL

Respondent is notified of his right to appeal this Decision and Order pursuant to G.L. c. 268B, section 4(k) by filing a petition in Superior Court within 30 days of the issuance date.

 

To: David Berman, Esq. 
Berman, Fox & Christian, LLC 
100 George P. Hassert Drive
Medford, MA 02155 

 

Candies Pruitt-Doncaster, Esq.
Staff Counsel, Enforcement Division
State Ethics Commission
One Ashburton Place, Room 619
Boston, MA 02108

 

BY FAX & MAIL BY HAND

 



[1] / Commissioner Kempthorne abstained from participating in this matter.

[2] / The receipt refers to laun (sic) which is simply a type of plywood.

[3] / 930 CMR 1.01(9)(m)(2).

[4] / 930 CMR 1.01(9)(l)(3).

[5] / See Amara & Sons, Inc. v. Providence Steamboat Company, 360 Mass. 850, 850 (1971) (judge, as trier of fact, was "sole judge of the weight and credibility of the evidence which consisted in large part of oral testimony").

[6] / The OTSC alleges that Foresteire obtained unwarranted privileges, not unwarranted exemptions. Accordingly, we address only the unwarranted privilege issue.

[7] / Similarly situated individuals may also include School Department employees.

[8] / In Re Mazareas, 2002 SEC 1050, 1053 ( footnote omitted).

[9] / 930 CMR 1.02(10).

[10] / 930 CMR 1.02(10)(c)(1) and (3).

[11] / See Affidavit of David Giannotti dated June 9, 2008.

[12] / 930 CMR 1.02(10)(d).

[13] / The penalty is calculated based on three separate violations as follows: $2,000 for Pomer's plumbing work; $2,000 for Howe's picking up and cutting up of the plywood; and $2,000 for O'Leary's delivery of the plywood to his home.

 

End of Decision