February 27, 2009
The State Ethics Commission and George Bitzas ("Bitzas") enter into this Disposition Agreement pursuant to Section 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, section 4(j).
On January 16, 2008, the Commission initiated, pursuant to G.L. c. 268B, section 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Bitzas. The Commission concluded its inquiry and, on December 19, 2008, found reasonable cause to believe that Bitzas violated G.L. c. 268A.
The Commission and Bitzas now agree to the following findings of fact and conclusions of law.
Findings of Fact
1. From 1989 until the present, Bitzas has served as a councilor on the City Council (the "Council") in the City of Agawam. As such, he is a municipal employee within the meaning of G.L. c. 268A, section 1 of the conflict of interest law.
2. The Council is responsible for enacting ordinances, including temporary parking ordinances that regulate the ability of residents to obtain permits to park cars on their property during special events.
3. John's Getty Auto is an auto repair and inspection shop located on Main Street in Agawam. John's Getty Auto is owned and operated by Hannah Kozah ("Kozah").
4. In fall 2007, then Mayor Richard Cohen was running for re-election. Cohen was being challenged by Susan Dawson. Bitzas supported Cohen.
5. Kozah previously had asked Bitzas and Cohen to intercede on his behalf with the Board of Appeals regarding Kozah's wish to be able to park cars on his property during local events. Kozah was dissatisfied with the response he received from Bitzas and Cohen.
6. In early October 2007, Kozah supported Dawson in the mayoral election and placed two of her political signs on his property.
7. A couple of days after Kozah put up the Dawson signs, Bitzas made several visits in a single day to Kozah's business to discuss the signs. During one of the conversations, Bitzas told Kozah that the mayor was "upset" about the signs. At another time on the same day, Bitzas pulled up to Kozah's garage and, without getting out of his car, showed Kozah a photo he had taken. The photo showed a police officer in uniform doing traffic control, with his personal truck nearby displaying a large red Dawson sign in the rear window. Bitzas pointed out the officer in the photo and said to Kozah, "See what happens to him after the election." Kozah said nothing in response. Bitzas then drove away.
Conclusions of Law
8. 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.
9. Bitzas invoked his official position as an Agawam City Councilor by purporting to speak for the mayor (stating that the mayor was "upset" about Kozah's display of his opponent's political signs) and by implicitly threatening city action against supporters of the mayor's opponent ("see what happens to him after the election").
10. Kozah knew, and Bitzas knew that Kozah knew, that Bitzas was an Agawam City Councilor and that as such, Bitzas had power over local parking regulations.
11. A reasonable person in Kozah's position would have understood that Bitzas was invoking his official position without Bitzas saying so expressly.
12. Bitzas' implicit invocation of his official regulatory power and his ability to take action against political adversaries in an attempt to coerce Kozah to take down the mayor's opponent's campaign signs was a use by Bitzas of his official city councilor position.
13. Bitzas' use of his official position to attempt to effect the removal of the campaign signs of the mayor's opponent was an unwarranted privilege for the mayor.
14. The use of signs in a political campaign as described above is of "substantial value. Accordingly, a public official's use of his official position to effect the removal of the mayor's opponent's campaign signs is an unwarranted privilege of substantial value.
15. The unwarranted privilege which Bitzas obtained for the mayor was not available to "similarly situated individuals."
16. Thus, by attempting to use his position as a city councilor to get Kozah to take down the mayor's opponent's campaign signs, Bitzas knowingly, or with reason to know, attempted to use his councilor position to obtain an unwarranted privilege of substantial value for the mayor, which was 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 by Bitzas, 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 Bitzas:
(1)that Bitzas pay to the Commission the sum of $2,000 as a civil penalty for violating G.L. c. 268A, section 23(b)(2);
(2) that Bitzas waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Agreement.
STATE ETHICS COMMISSION
Karen L. Nober Date
George Bitzas Date
I, George Bitzas, have personally read the above Disposition Agreement. I understand that it is a public document and that by signing it, will have agreed to all of the terms and conditions therein, including payment of $2,000 to the State Ethics Commission.
George Bitzas Date
 See Ellis, 1999 SEC 930 (city councilor violated s.23(b)(2) by coercing constituent to take down opponent's campaign signs). As the Commission in Ellis observed:
A campaign sign advocating the election of a certain candidate posted in public view potentially increases the likelihood that 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 section 23(b)(2). As the Supreme Court said in 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.
End of Decision