Docket No. 420

In the Matter of Mark A. Breen

July 6, 1992

Disposition Agreement




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

On May 31, 1989, the Commission, pursuant to G.L. c. 268B,
s.4(a), initiated a preliminary inquiry into possible violations
of the conflict of interest law, G.L. c. 268A, by Mr. Breen. The
Commission has concluded its inquiry and, on July 19, 1989, found
reasonable cause to believe that Mr. Breen violated G.L. c. 268A.

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

1. At all times material to this matter, Mr. Breen was a
staff attorney at the Massachusetts Housing Finance Agency
(hereafter "the MHFA"). As such, he was a state employee within
the meaning of G.L. c. 268A, s.1.

2. The MHFA issues bonds to finance housing loans. The money
raised is distributed to qualified borrowers through banks which
participate in the agency's programs. The MHFA is divided into
two divisions dealing with single-family and multi-family
dwellings, respectively. Although his job description encompasses
single-family dwelling mortgages, Mr. Breen primarily works in
the multi-family division, providing legal advice on various
issues.

3. In 1987, Mr. Breen hired Cornelius Fahy (Mr. Fahy), a
mason, to repair the chimney and front steps of his home. Mr.
Fahy was an Irish national, legally in the United States on a
temporary work visa. Mr. Fahy was employed by the Empire Masonry
Company, but took on additional freelance masonry work.

4. In September or October 1987, Mr. Fahy began doing
masonry work on Mr. Breen's property. He worked evenings and
weekends and became friendly with Mr. Breen, who was often around
while Mr. Fahy worked.

5. Mr. Breen was satisfied with Mr. Fahy's work to the
extent of commissioning additional projects. Mr. Fahy continued
to work on Mr. Breen's property until November 1987.

6. In November 1987, Mr. Fahy was forced by problems with
his visa to return to Ireland to reapply for admission to the
United States. He left Mr. Breen's projects uncompleted until he
returned in March 1988, with his visa problem resolved.

7. On June 3, 1988, Mr. Fahy and his wife (the Fahys)
entered into a purchase and sale agreement for a single-family
house. The Fahys planned to apply for a low interest loan ("the
loan") funded by the MHFA under the First-Time Home Buyer Program
("FTHB").[1]

8. On June 14, 1988, Mr. Fahy gave Mr. Breen a check for
$2500. Mr. Fahy claims that the check was given to Mr. Breen for
acts Mr. Breen would take as a private attorney regarding the
loan. Mr. Breen maintains that the $2500 was for past legal
services unrelated to the loan provided to Mr. Fahy and for Mr.
Breen's willingness to be Mr. Fahy's attorney in the future. Both
Mr. Fahy and Mr. Breen agree, however, that whatever legal
services were tendered by Mr. Breen to Mr. Fahy prior to June 14,
1988, Mr. Fahy was under no legal obligation to pay for them. Mr.
Breen provided no legal services to the Fahys unrelated to the
loan after receiving the $2500.

9. Mr. Breen did not report the $2,500 on his 1988 income
tax returns.[2] In addition, no documentation exists (i.e., a
file, retainer, notes, etc.) memorializing an attorney/client
relationship between Mr. Breen and Mr. Fahy involving legal
services unrelated to the loan.

10. Mr. Breen subsequently provided Mr. Fahy with MHFA
literature (available to the general public), including a list of
banks which administered money.

11. Toward the end of June 1988, the Fahys sought a FTHB
loan at a bank in Canton, Massachusetts. The Fahys were told that
the bank had distributed all its funds.


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Mr. Fahy went back to Mr. Breen, who told him to apply to the
People's Federal Bank in Brighton, which still had FTHB funds
available.

12. On or about July 1, 1988, the Fahys filed an application
with the People's Federal Bank in Brighton. Mr. Breen assisted
the Fahys in filling out the required financial documentation.

13. In July 1988, after Mr. Fahy complained to him of the
length of time the loan application was taking, Mr. Breen went to
the MHFA lender representative in the FTHB program who was
responsible for the loans granted by the bank to which the Fahys
had applied. Mr. Breen identified himself as a fellow employee of
the MHFA, seeking information on the status of the loan
application made by the Fahys. In response to Mr. Breen's
inquiry, the MHFA lender representative telephoned the bank and
then explained to Mr. Breen that the bank was having some trouble
getting certain information regarding the Fahys' finances.

14. Thereafter, Mr. Breen met with the Fahys on several
occasions to discuss their difficulties with the bank. He also
telephoned and met on several occasions with the MHFA lender
representative and supplied him with financial information
provided by Mr. Fahy, including a copy of a pay stub from the
Empire Masonry Company and a wage verification form.

15. On September 1, 1988, the bank rejected the Fahys'
mortgage application.

16. Section 4(c) of G.L. c. 268A prohibits a state employee
from acting as agent or attorney for anyone other than the
Commonwealth or a state agency in connection with any particular
matter in which the Commonwealth or a state agency is a party or
has a direct and substantial interest.

17. The Fahys' loan application was a particular matter[3]
in which the Commonwealth, as provider of the funds, had a direct
and substantial interest. When Mr. Breen acted as a private
attorney for the Fahys in relation to their loan application, he
acted as an attorney for someone other than the Commonwealth in
connection with a particular matter of direct and substantial
interest to the Commonwealth. Therefore, Mr. Breen violated
s.4(c).

18. Section 23(b)(3) of G.L. c. 268A prohibits a state
employee from knowingly, or with reason to know, acting 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.

19. By accepting the $2500 from the Fahys under the
circumstances detailed in paragraphs seven through nine above, at
or about the time when he began assisting them as a private
attorney in relation to their loan application, Mr. Breen
knowingly, or with reason to know, acted in a manner which would
cause a reasonable person knowing these facts to conclude that
the Fahys could unduly enjoy Mr. Breen's favor in the performance
of his official duties. Therefore, Mr. Breen violated s.23(b)(3).

In view of the foregoing violations of G.L. c. 268A, 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. Breen:

1. that he pay to the Commission the amount of two thousand
dollars ($2,000.00) as a civil penalty for his violation of G.L.
c. 268A, s.4(c);

2. that he pay to the Commission the amount of two thousand
dollars ($2,000.00) as a civil penalty for his violation of G.L.
c.268A, s.23(b)(3); and

3. that he waive all rights to contest the findings of
facts, conclusions of law, and terms and conditions contained in
this Agreement in any related administrative or judicial
proceeding to which the Commission is or may be a party.

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

[1] HFA provides below market interest rate mortgages to
income eligible, credit worthy, first-time home buyers seeking to
purchase property within specific statutory acquisition costs.

[2] Mr. Breen reported the $2,500 on his 1989 income tax
returns.

[3] "Particular matter," means any judicial or other
proceeding, application, submission, request for a ruling or
other determination, contract, claim, controversy, charge,
accusation, arrest, decision, determination, finding, but
excluding enactment of general legislation by the general court
and petitions of cities, towns. counties

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and districts for special laws related to their governmental
organizations, powers, duties, finances and property. G.L. c.
268A, s.1(k).

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