August 1, 2011
The State Ethics Commission (the "Commission") and A. Joseph DeNucci ("DeNucci") 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, § 4(j).
On May 19, 2010, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by DeNucci. The Commission has concluded its inquiry and, on July 16, 2010, found reasonable cause to believe that DeNucci violated G.L. c. 268A.
The Commission and DeNucci now agree to the following findings of fact and conclusions of law:
Findings of Fact
1. DeNucci was the Auditor of the Commonwealth of Massachusetts ("State Auditor") from 1987 until January 2011. The State Auditor is an elected constitutional officer. The State Auditor is responsible for all of the activities of the Office of the State Auditor ("OSA"). Under G.L. c. 11, sec. 6, "The state auditor may appoint and remove such employees as the work of the department may require." OSA had 322 employees as of July 2009.
2. In addition to auditing state agencies, OSA is authorized to investigate fraud in public assistance programs. The OSA's Bureau of Special Investigations ("BSI") is charged with this responsibility. BSI employs approximately 30 fraud examiners.
3. Guy Spezzano is DeNucci's first cousin. In or about January 2008, Spezzano, then age 75, was unemployed. DeNucci suggested to Spezzano that he come to work at the OSA.
4. On February 7, 2008, Spezzano submitted to the OSA the first page of the OSA's two-page job application. Spezzano never completed the second page of the application, which requests information about the applicant's previous employment experience and references.
5. DeNucci instructed his deputies to interview Spezzano. A deputy auditor interviewed Spezzano on February 14, 2008, and recommended that he be placed in BSI as a fraud examiner.
6. After learning during his February 14, 2008 interview that BSI had a Brockton office, Spezzano asked to work at BSI's Brockton office. (Upon being hired, Spezzano went to work at the Brockton office.)
7. By letter dated March 24, 2008, DeNucci offered to Spezzano a full-time position as a fraud examiner. Spezzano accepted the offer and began working at BSI on June 2, 2008. Spezzano's annual salary was $40,545, plus benefits.
8. The fraud examiner job description lists the position's requirements, which included data gathering and writing skills, familiarity with "the law as it relates to fraud," and being "well-versed in the use of various information technology systems." Spezzano did not have the skills or knowledge to meet these requirements. Spezzano holds a B.S. degree from Boston University in music, which he received in 1954. Spezzano worked as a salesman for a meat company from 1995 to 2007. Spezzano was also a professional jazz musician.
9. On December 1, 2009, approximately one year and a half after starting work for the OSA, Spezzano went out on sick leave. In April 2010, having used all of his accrued sick leave, including catastrophic sick leave, Spezzano's employment with the OSA was terminated.
Conclusions of Law
10. As the State Auditor, DeNucci was, at all times relevant to this matter, a state employee as defined in G.L. c. 268A, § 1.
11. Section 23(b)(2) of G.L. c. 268A prohibits a state employee from, knowingly, or with reason to know, using or attempting 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.
12. By directing his staff to interview Spezzano, and by offering the job to Spezzano, DeNucci knowingly used his official position to hire his first cousin as an OSA fraud examiner.
13. Being hired as an OSA fraud examiner was a privilege.
14. This privilege was of substantial value because the position's salary was $40,545, plus benefits.
15. The privilege was unwarranted because, at the time Spezzano was hired, he was not qualified for the position based on the job description.
16. This privilege was not otherwise properly available to similarly situated individuals.
17. By, in the manner described above, using his official position as the State Auditor to secure for his cousin a job as an OSA fraud examiner, DeNucci knowingly used his official position to obtain an unwarranted privilege of substantial value for his cousin that was not properly available to other similarly situated individuals. Therefore, in so acting, DeNucci violated § 23(b)(2).
In view of the foregoing violation of G.L. c. 268A by DeNucci, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, based on the following terms and conditions agreed to by DeNucci:
(1) that DeNucci pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $2,000 as a civil penalty for violating G.L. c. 268A, § 23(b)(2); and
(2) that DeNucci 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.
 G.L. c. 268A was amended by c. 28 of the Acts of 2009. The language of § 23(b)(2) now appears in § 23(b)(2)(ii) of G.L. c. 268A, as amended. The conduct in this case occurred prior to the enactment of the 2009 law and its provisions are inapplicable to DeNucci.