February 12, 2009

 

Decision and Order

 

Appearances:

Candies Pruitt-Doncaster, Esq.
Counsel for Petitioner

Robert B. Christian, Esq.
Counsel for Respondent

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

 

Background


On March 27, 2008, Petitioner issued an Order to Show Cause ("OTSC") against Respondent Lona DeFeo ("DeFeo"), the Maintenance Manager for the School Department in the City of Everett ("City"). The OTSC alleges that in 2002, the City's Superintendent of Schools, Frederick Foresteire ("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 OTSC further alleges that DeFeo directed various school employees to do such work, some of which involved the use of school equipment, and some of which DeFeo knew or should have known was done on School Department time. Finally, it alleges that the School Department did not receive any payment or reimbursement from Foresteire relating to the plywood. The OTSC alleges that by engaging in this conduct, DeFeo violated G.L. c. 268A, section23(b)(2) and G.L. c. 268A, section 23(b)(3).

DeFeo filed an Answer on April 16, 2008. In her Answer, DeFeo denied that she violated section 23(b)(2) or section 23(b)(3) and asserted two affirmative defenses: (1) the OTSC was barred by the applicable statutes of limitation; and (2) if the plumbing work and/or plywood were provided to Foresteire, she did not authorize, order or direct the same and had no awareness of it.

A pre-hearing conference was held on May 16, 2008. DeFeo subsequently 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 DeFeo 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 Frederick Foresteire, Adjudicatory Docket No. 08-0004, 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.

An 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, DeFeo filed a Motion to Dismiss on the grounds that on 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. Petitioner subsequently filed a brief on January 9, 2009. DeFeo elected not to file a brief. 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. Lona DeFeo ("DeFeo") has been the Maintenance Manager for the City of
Everett's ("City") public schools since 1994. DeFeo is a municipal employee.

2. Frederick Foresteire ("Foresteire") has been the Superintendent of the City's public schools since 1989. Throughout 2002, DeFeo reported to Foresteire.

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

4. 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.

5. Michael Pomer ("Pomer") has been working in the City's School Department since October 1996. His duties include plumbing, heating, clean-up, lawn care and deliveries. In 2002, Pomer was the only plumber in the School Department.

6. 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.

7. 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 a friend of DeFeo and is also DeFeo's tenant.

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

9. 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


10. 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.

11. 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.

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

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

14. 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.

15. 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.

16. 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 home. Dunbrack kept DeFeo informed of work assignments.

17. 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.

18. Pomer's work day for the Maintenance Department was 7:00 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. He would generally come into the Maintenance Department office each morning to find out what needed to be done, although there were some days he knew he would need to go back to Foresteire's house to finish work.

19. 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."

20. 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.

21. 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.

22. 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.

23. 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.

24. The School Department laid off employees, including members of its Maintenance Department, in the Summer of 2003. Pomer was not laid off. After the lay-offs, only DeFeo and Pomer were left in the Maintenance Department.

 

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 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 time.

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.

 

III. 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] /

 

A. 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) DeFeo is a municipal employee ; (2) who knowingly or with reason to know; (3) used or attempted to use her official position; (4) to secure an unwarranted privilege or exemption [6] /  for herself or others; (5) which was of substantial value; and (6) which was not properly available to similarly situated individuals.

Petitioner alleges that DeFeo, knowingly or with reason to know, used her position to provide Foresteire with the unwarranted privileges of the use of School Department employees on School Department time using School Department equipment for his private work, which were of substantial value, and which were not properly available to similarly situated individuals. DeFeo admits that, since 1994, she has been the Maintenance Manager for the City's public schools and that she is a municipal employee. The remaining elements of a section 23(b)(2) violation, however, are contested. The Commission finds that Petitioner has proven by a preponderance of the evidence that DeFeo violated G.L. c. 268A, section 23(b)(2) as follows.

 

DeFeo Used Her Position as Maintenance Manager

 

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." Websters Third New International Dictionary 2523 (1993). Applying these principles, we find that DeFeo used her position as Maintenance Manager.

In 2002, Pomer, Howe and O'Leary reported to DeFeo as the Maintenance Manager for the City's schools. DeFeo directed Pomer, on at least one or two occasions, to do private plumbing work at Foresteire's home at a time when Pomer was the only plumber working for the School Department. In addition, DeFeo 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. In each of these instances, DeFeo used her position as Maintenance Manager to direct those employees who reported to her to perform work for Foresteire.

Since DeFeo told Howe to cut the plywood and leave it in the shop at the High School, it is highly likely that she was the person who told O'Leary to deliver the plywood to Foresteire's home and that she knew he would be doing it on School Department time and using a School Department vehicle for the delivery. For this reason, we find that DeFeo used her position to direct O'Leary to deliver plywood to Foresteire's home using a School Department truck while on School Department time.

 

DeFeo Secured Unwarranted Privileges for Foresteire

 

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.). In EC-COI-95-5, the Commission stated that the use of public resources by public employees for personal purposes constitutes an unwarranted privilege. Applying these principles, we find that DeFeo secured unwarranted privileges for Foresteire.

The unwarranted privileges were School Department maintenance employees doing private work for Foresteire on School Department time, using School Department resources. There is no evidence in the record that Foresteire made any reimbursement for the use of such School Department time or resources. Moreover, Foresteire admits that the City paid an invoice for plywood, but otherwise denies that that plywood was delivered to his home.

 

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 renovations. We find that a City resident or another School Department employee to whom Pomer, Howe or O'Leary did not report would not have had the ability or opportunity to direct them to do their personal work on City time, using City resources. See EC-COI-95-5 (use of municipal resources by municipal employees for personal purposes is an unwarranted privilege not available to similarly situated individuals).

 

DeFeo Acted Knowingly

 

"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). Here, as noted above, the Commission finds that Petitioner has established that DeFeo acted "knowingly" where she intentionally directed School Department employees to perform work for Foresteire during School Department time using School Department resources.

 

B. The Section 23(b)(3) Allegations

 

Section 23(b)(3) 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 which 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 DeFeo: (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 her favor in the performance of her official duties, or that she is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. [8] /  Petitioneralleges that a reasonable person having knowledge of the relevant circumstances would conclude that Foresteire could improperly influence DeFeo or unduly enjoy her favor in the performance of her official duties or that she was likely to act as a result of his rank, position or undue influence. Section 23(b)(3) concerns "'giving the appearance of conflict.'" [9] /   Here, a reasonable person with knowledge of the relevant circumstances would conclude that DeFeo had improperly used her official position, but not conclude that her conduct gave the appearance of conflict because it would not have been permissible, even with a written disclosure. For this reason, we find that Petitioner has not established that Defeo violated section 23(b)(3).

 

C. The Statute of Limitations Issue

 

The Commission's regulations include a three year statute of limitations. [10] /   When a Respondent asserts a statute of limitations defense, as DeFeo 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 section23, such as those with which DeFeo 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. [11] /   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 submitted the affidavit of Special Investigator Paul Murray affirming that he has reviewed the Enforcement Division's complaint files and that the earliest complaint relating to the violations alleged in the OTSC was received by the Enforcement Division in December 2006. DeFeo does not dispute that Petitioner has satisfied this aspect of its burden under 930 CMR 1.02(10) (c).

Petitioner has demonstrated that DeFeo's public agency was not aware of any complaint relating to her alleged violations more than three years before the OTSC was issued. DeFeo'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 DeFeo concerning plumbing work and delivery of plywood to Foresteire's 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 the Inspector General's 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 find 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 the Foresteire administration, 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 DeFeo 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), DeFeo can prevail on her statute of limitations defense only if she 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, DeFeo 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 credible 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. Although it was generally known in March 2004 that DeFeo and Foresteire had been indicted by a Middlesex County Grand Jury, those indictments related to different conduct by DeFeo and Foresteire.

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

 

IV. Conclusion

 

Petitioner has proven by a preponderance of the evidence that DeFeo violated G.L. c. 268A, section 23(b)(2) when she knowingly used her position as the Maintenance Manager for the City's public schools to obtain for Foresteire unwarranted privileges of substantial value in having School Department employees use School Department time and School Department resources to do private work for Foresteire which were not properly available to similarly situated individuals. Petitioner has failed to prove by a preponderance of the evidence that DeFeo violated section 23(b)(3).

 

V. Order

 

Having concluded that Respondent Lona DeFe violated G.L. c. 268A,
section23(b)(2) and pursuant to the authority granted it by G.L. c. 268B, section 4(j), the State Ethics Commission hereby ORDERS Lona DeFeo to pay a civil penalty of $4,500. [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 her 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: Robert B. Christian, Esq. Candies Pruitt-Doncaster, Esq.
Berman, Fox & Christian, LLC Staff Counsel, Enforcement Division
100 George P. Hassert Drive State Ethics Commission
Medford, MA 02155 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 DeFeo obtained unwarranted privileges, not unwarranted exemptions, for Foresteire. 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] / Scaccia v. State Ethics Commission, 431 Mass. 351, 359 (2000) ( citation omitted).

[10] / 930 CMR 1.02(10).

[11] / 930 CMR 1.02(10)(c)(1) and (3).

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

[13] / The civil penalty is calculated based on three separate violations as follows: $1,500 for Pomer's plumbing work; $1,500 for Howe's work in picking up and cutting the plywood; and $1,500 for O'Leary's delivery of the plywood to Foresteire's home.

 

End of Decision