Case No.: 124


Doc. Type: Agreements


Parties: IN THE MATTER OF WILLIAM L. BAGNI, SR.


Appearing: David Burns, Esquire - Counsel to the Petitioner
Ralph Champa, Esquire - Counsel to the Respondent


Commissioners: Vorenberg, Ch.; Kristler; Brickman; Bernstein; McLaughlin

Date: January 29, 1981


DECISION AND ORDER


We find that the Respondent, William L. Bagni, Sr., violated
Section 4 and 23 of Chapter 268A and order that he pay civil
penalties totaling $2,000 within 30 days of the issuance of this
Decision.


I. Procedural History


On February 13, 1980, the State Ethics Commission initiated
a Preliminary Inquiry in the matter of William L. Bagni, Sr., in
accordance with General Laws Chapter 268B, Section 4(a). On May 13,

1980, the State Ethics Commission found that there was reasonable
cause to believe that William L. Bagni, Sr. had violated Sections
4 and 23 of General Laws Chapter 268A and authorized a full
investigation into the matter and the initiation of adjudicatory
proceedings in accordance with General Laws Chapter 268B, Section
4(c).

On July 11, 1980, the Petitioner filed an Order to Show Cause
in accordance with the State Ethics Commission's Rules of Practice
and Procedure, 930 C.M.R. 1.01(5)(a), alleging that William L.
Bagni, Sr. had violated Sections 23(a), (e) and (f) and Sections
4(a) and 4(c) of General Laws Chapter 268A. That Order was
subsequently served on the Respondent, William L. Bagni, Sr., in
accordance with the State Ethics Commission's Rules of Practice
and Procedure, 930 C.M.R. 1.01 (4)(f). On July 29, 1980, the
Respondent filed his Answer to the Order denying that he had
violated Section 23 or Section 4 of Chapter 268A.

An evidentiary hearing was held in this matter on September
29, 1980, before Commissioner David Brickman. See General Laws
Chapter 268B, Section 4(c). Each Commissioner received copies of
the transcript of the proceeding and of all exhibits. Each of the
Commissioners participating in this Decision and Order has heard
and/or read the evidence and arguments presented by the parties.[1]


II. Findings of Fact


1. The Respondent William L. Bagni, Sr. was, at all times
relevant to the violations alleged in the Order to Show Cause in
this matter, employed by the Massachusetts Department of Public
Utilities ("DPU") as an inspector assigned to the Commercial Motor
Vehicle Division ("CMVD").

2. The Massachusetts General Laws and regulations promulgated
by the DPU require all two truck operators and other common
carriers operating in Massachusetts to file written tariff
schedules showing their current prices for towing and other related
services with the Rates and Research Division of the DPU.

Page 31

3. The principal functions of the CMVD relate to the
administration and enforcement of the Massachusetts Motor Carrier
Act, General Laws Chapter 159B. That Chapter regulates persons
transporting property for compensation by motor vehicles, including
tow truck owners and operators, and provides for administrative and
criminal sanctions for violation of its provisions.

4. The Respondent's official duties and responsibilities as
an inspector assigned to the CMVD include the periodic inspection
of records of all tow truck operators and other common carriers for
compliance with applicable state laws and regulations, the
investigation of all complaints involving said tow truck operators
and other common carriers, and the gathering of evidence for
administrative and/or criminal prosecution of violations of said
laws and regulations.

5. As an inspector assigned to the CMVD, the Respondent had


no official duties relating to the preparation or filing of written
tariff schedules by tow operators or other common carriers with the
Rates and Research Division of the DPU.

6. At the direction of Mr. Richard Connors, the Director of
the CMVD, Mr. George E. Williams, the Assistant Director of the
CMVD, issued a memorandum dated September 19,1978 to all CMVD
personnel advising that "CMVD personnel shall not act as couriers
for carriers" in filing tariffs and other documents with the Rates
and Research Division. This memorandum was subsequently
incorporated into the rules and procedure of the DPU.

7. George Herbert Simmons, Jr., a Senior Rate Analyst employed
in the Rates and Research Division of the DPU, tries to assist
carriers with their tariff filings by telling them what format to
use. The DPU provides blank forms for tariff filings and maximum
rate schedules free of charge to tow operators upon request.

8. On six occasions during the years 1977, 1978, and
1979, the Respondent received from the tow truck operators listed below the sum of $25.[2] for preparing or causing to be prepared tariff
certificates or tariff certificate supplements:

a. Alexander Despo, d/b/a Massachusetts Custom Coach and
Glass Works (Certificate issued July 3,1979);

b. George A. Veracka, d/b/a Maynard Shell (Certificates
issued March 22, 1977 and July 17, 1979 and a supplement
issued March 6,1978);

c. Howard A. Rhone, d/b/a Sunnyside Exxon (Certificate
and supplement issued April 3,1978);

d. Celorier and Elliot, Inc., Wayland Shell Service
(Certificate issued February 16, 1978).

9. In five of the six instances listed in paragraph 8, it was
the Respondent who suggested that new rates were needed and that
the documents be prepared and filed.

10. A tariff certificate typically is a five page document,
four pages of which, however, appear to be a pre-prepared standard
schedule of rates. The only page that is required to be filled out
is the cover page on which (in spaces provided) is typed the name
and address of the tow truck operator, a number, a date and an
indication of the purpose of the certificate (for example, "Used
motor vehicles; within a radius of 10 miles Town Hall, Natick").

11. On at least the following two other occasions, the
Respondent prepared and filed Certificates on behalf of tow truck
operators but, according to the operators involved, was not
compensated for doing so:

a. Cochituate Motors, Inc. (Certificate issued September
14,1979);

b. Edmond Dionne, d/b/a Ed's Sunoco Station (Certificate
issued July 23,1979).

12. There was also evidence that the Respondent assisted
others in the preparation of tariff certificates although it is
unclear whether he was compensated for doing so or whether he
actually filed the certificates on behalf of the operators. On one
occasion the Respondent suggested to an operator that his rates
should be adjusted and offered to prepare the certificate for $50;
the operator indicated he would do it himself.


13. All the parties named in paragraphs 8 and 11 above were,
at the times referred to in those paragraphs, subject to the
Respondent's authority as an inspector for the CMVD.


III. Decision


The Respondent has been charged with violating Sections 4(a)
and (c) and 23(a), (e), and (f) of General Laws Chapter 268A. We
shall address Sections 4 and 23 separately.

Page 32

A. Section 4

Chapter 268A, Section 4(a) provides that "[no] state employee
shall otherwise than as provided by law for the proper discharge
of official duties, directly or indirectly receive or request
compensation from anyone other than the Commonwealth or a state
agency, in relation to any particular matter in which the
Commonwealth or a state agency is a party or has a direct and
substantial interest."

The parties have stipulated that the Respondent is a "state
employee" as that term is defined in Chapter 268A. See General Laws
Chapter 268A, Section 1(q). Clearly, the tow truck operators listed
in paragraphs 8 and 11 above are not "Commonwealth or a state
agency." The parties have stipulated, and we have found (in
paragraph 5 above), that, as an inspector assigned to the
Commercial Motor Vehicle Division of the Department of Public
Utilities, the Respondent had no official duties relating to the
preparation or filing of written tariff schedules by tow operators
or other common carriers with the Rates and Research Division of
the DPU. The parties have also stipulated that the preparation and
filing of a common tariff certificate by a tow operator or other
regulated carrier with the Rates and Research Division of DPU is
a "particular matter" as that term is defined in Chapter 268A (see
General Laws Chapter 268A, Section 1(k) to which the Commonwealth
is a party within the meaning of Chapter 268A, Sections 4(a) and
(c).

"Compensation" is defined as "any money, thing of value or
economic benefit conferred on or received by any person in return
for services rendered or to be rendered by himself or another." See
General Laws Chapter 268A, Section 1(a). The $25 the Respondent
received on six separate occasions from tow truck operators in
return for the preparation of certificates constituted
compensation. The evidence warrants a finding that the Respondent
sought this money for himself and not for a typist. Such a fee
would have been disproportionate to the amount of typing involved.
On one occasion the Respondent was seen actually typing a
certificate. On another occasion, he sought $50 for what would have
been the same amount of typing. Even if the Respondent turned the
money over to another individual, it would still constitute
"compensation" since, as that term is defined, the money may be
"received . . . in return for services . . . to be rendered by
another."


Accordingly, we find that on the six occasions set out in
paragraph 8 above, the Respondent violated Section 4(a). In those
two instances where compensation may not have been received, the
Respondent nevertheless violated Section 4(c) of Chapter 268A which
prohibits a state employee from acting "as agent. . . for anyone
in connection with any particular matter in which the Commonwealth
or a state agency is a party or has a direct and substantial
interest." In filing tariff certificates with the Rates and
Research Division of DPU on behalf of tow truck operators, the
respondent acted as their agent. See Patterson v. Barnes, 317 Mass.
721, 723 (1945); Restatement (Second) of Agency, s.1 (1957).

"[P]ublic officials should not in general be permitted to step
out of their official roles to assist private entities or persons
in their dealings with government." Perkins, The New Federal
Conflict-of-Interest Law, 76 Harv. L. Rev. 1113, 1120(1963).
Section 4 of Chapter 268A:

says, in effect, that the norm of government employment
is that the regular public employee should, in the usual case,
be a public employee first, last and only. For him to be a
private employee is a contradiction in terms; it suggests that
he is serving two masters. The appearance of potential
impropriety is raised - influence peddling, favoring his
private connections and cheating the government. Whether or
not any or all these evils result, confidence in government
is undermined because the public cannot be sure that they will
not result.

Buss, The Massachusetts Conflict-of-Interest Statute: An Analysis,
45 B.U.L. Rev. 299, 322 (1965).

Whenever state employees receive compensation from private
interests or represent them in matters in which the state also has
an interest, there is the potential that employees will favor those
private interests at the expense of the state. Such favoritism is
especially pernicious where the state employee is receiving
compensation from a private party which has dealings with, has a
matter pending before, or is regulated by the

Page 33

state employee's own agency or where the employee represents the
private party in its dealings with his or her own agency. No state
employee could ever in good faith think it appropriate to conduct
private business with the very people he is duty bound to regulate.

We hereby order the Respondent to pay within 30 days of the
issuance of this Decision civil penalties totaling $2,000, that
is, $300 for each of his six violations of Section 4(a) and $100.
for each of his two violations of Section 4(c).

B. Section 23

Section 23 of Chapter 268A sets forth six additional
prohibitions applicable to all public employees. These provisions
are collectively referred to as the "Standards of Conduct." Since
they articulate some of the most fundamental principles and


prohibitions applicable to public employment, the Standards serve
essentially as a general code of ethics which supports and
supplements the other provisions of the conflict of interest law.
The Standards extend beyond single actions which constitute
conflicts and address both courses of conduct raising conflict
questions and appearances of conflicts.

Section 29(a) of Chapter 268A prohibits state employees from
accepting other employment which will impair their independence of
judgment in the exercise of their official duties. Sections 23(e)
and (f) prohibit state employees from engaging in conduct which
will give reasonable basis for the impression that any person can
improperly influence them or unduly enjoy their favor in the
performance of official duties or from pursuing courses of conduct
which will raise suspicion among the public that they are likely
to be engaged in acts that are in violation of their public trust.


The testimony and other evidence contained in the record
of this hearing show a repeated pattern of transactions for private
gain between the Respondent and several of the tow truck operators
which the Respondent regularly inspected in the course of his
official duties. The Respondent's conduct is a classic example of
precisely the type of dealings between public employees and private
businesses which Section 23(a) was intended to prohibit. As shown
by the testimony of the Director and Assistant Director of the
Commercial Motor Vehicle Division and by the testimony of each tow
truck operator, the Respondent had substantial inspection and
regulatory authority over those tow truck operators requiring the
exercise of his official judgment in a fair and impartial manner.
Indeed, it was while he was on the premises conducting an official
inspection of their records that the Respondent discussed and
entered into these private business arrangements. The fact that the
Respondent assisted some of those same tow truck operators in the
preparation and filing of their tariff certificates and requested
and received private compensation from them for those services
would irreparably compromise his impartiality and independence of
judgment in his official dealings with those tow truck operators.

The evidence also supports findings that the Respondent
violated Section 23(e) and 23(f) by repeatedly soliciting private
work from those businesses over whom he has official
responsibility. There can be little doubt that such conduct creates
an impression in the mind of the public that those private tow
truck operators who paid for the services of the Respondent to
assist them in the preparation and filing of their tariff
certificates, could improperly influence him or unduly enjoy his
favor in the conduct of his official inspections of their towing
operations. Moreover, the Respondent's repeated solicitations and
receipt of private compensation from those tow truck operators over
whom he had official inspection and regulatory authority, clearly
raises suspicion among the public that he was likely to be engaged
in acts in violation of his public trust.

If the Section 23 violations stood alone in this case, we
would order the Respondent to pay civil penalties for them.
However, since we have already imposed penalties under Section 4
for those same incidents, we will not impose separate penalties under Section 23.

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

[1] Oral argument before the full Commission "as scheduled for
December 16, 1980 but was waived by the parties on December 15.
1980.
[2] In five of these six instances, the Respondent also received
the sum of $3 to cover the fee for filing these documents.

End Of Decision