November 13, 2012
The State Ethics Commission (“Commission”) and Mark Joseph (“Joseph”) 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 January 20, 2012, 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. On May 18, 2012, the Commission concluded its inquiry and found reasonable cause to believe that Joseph violated G.L. c. 268A, § 23(b)(2)(ii).
The Commission and Joseph now agree to the following findings of fact and conclusions of law:
Findings of Fact
1. Joseph was a member of the Norwood School Committee from 1997 though June 2011, and served as Chairman of the School Committee from 2010 though June 2011.
2. On or about June 19, 2011, Joseph took ownership of a restaurant located on the first floor of 82 Chapel Street in Norwood, which has been in Joseph’s family for 150 years, and which had formerly been known as The Take Out and as O’Donnell’s Pizza before that. Joseph renamed it The Take Away, and opened for business in September 2011.
3. The Take Away is set up to be a take-out restaurant. It is 900 square feet, with a small area for customers in front of the counter, and a kitchen and preparation area behind the counter. The kitchen equipment was updated by Joseph’s family in 2006.
4. In or about spring 2011, the Norwood Public Schools (“NPS”) undertook a project in which the high school was to be demolished, and a new high school built in its place (the “Project”). The NPS contracted with a management company to run the Project (the “Project Manager”).
5. At the outset of the Project, NPS employees began to remove NPS equipment from the old high school in preparation for its demolition. NPS employees were given color-coded labels to mark the old equipment for use in other schools in the district or other town agencies. The Project Manager and NPS Superintendent mandated that any items that were not labeled by NPS staff by Thursday, June 23, 2011, the last day of school, were to become the property of a management company to be disposed of as salvage.
6. When asked, the NPS Superintendent told NPS employees and other members of the public that if anyone wanted to take any NPS equipment for private use, they needed to contact the Project Manager.
7. During the week of June 23, 2011, Joseph contacted the NPS Superintendent about the possibility of Joseph taking old high school cafeteria equipment and donating it to a local charity, the Norwood Food Pantry, which is located at70-72 Bond Street in Norwood. The Superintendent told Joseph to call the Assistant Project Manager in order to receive approval to do this.
8. According to Joseph, after speaking with the Superintendent, Joseph spoke to the Assistant Project Manager, who gave Joseph a contact person at the management company to call. The Assistant Project manager also told Joseph to speak with the high school principal’s secretary for further assistance.
9. On Friday, June 24, 2011, Joseph went to the high school principal’s office and spoke to the secretary about potentially having items labeled for donation to the Norwood Food Pantry. Joseph told the secretary that he had been told to get in touch with a certain contact person at the management company. The secretary had that contact person’s phone number and dialed it for Joseph. Joseph left a voicemail message for the contact person, explaining Joseph’s intention to donate equipment to the Norwood Food Pantry.
10. After Joseph left the phone message, the secretary gave Joseph labels and advised Joseph to write his name and “Food Pantry” on any items he planned to have donated.
11. According to the secretary, she would not have given Joseph the labels had he not been a School Committee member.
12. Joseph did not ever speak to the contact person from the management company, and did not get permission from the Project Manager, the Superintendent or the School Committee to take NPS equipment for non-NPS purposes.
13. On Friday, June 24, 2011, Joseph marked four warming tables, two cold serving tables, two six-foot-by-three-foot steel tables, two sixteen-crate capacity milk coolers, one folding transition table, one fire extinguisher, and three 40-gallon trash barrels with labels reading “Mark Joseph – Food Pantry.”
14. Later that same day, after having labeled the cafeteria equipment, Joseph obtained the assistance of six NPS custodians and had them transport the labeled equipment in NPS vehicles to 82 Chapel Street. The loading, transporting and unloading of equipment took approximately one and a half hours, and was performed during the custodians’ NPS work hours.
15. According to the NPS, Superintendent, the total cost incurred by the Town for the labor involved for NPS custodians to move the equipment from the old Norwood High School to 82 Chapel Street on June 24, 2011was $241.68.
16. According to Joseph, he did not request the assistance of the NPS custodians, but rather the custodial staff offered to help because Joseph had “always been good to them.” Joseph also stated that he believed the assistance was offered due to his position on the School Committee.
17. After being unloaded at 82 Chapel Street, two or three of the labeled items were placed inside The Take Away, in the small area in front of the counter. The remaining equipment was placed in a storage closet in the basement of the building.
18. None of the labeled equipment was taken to the Norwood Food Pantry.
19. The Norwood Food Pantry is a charity that gives and receives canned goods. The Norwood Food Pantry does not serve warm or chilled foods, and, therefore, had no use for warming tables, cold serving tables or milk coolers.
20. According to Joseph, he had not previously spoken with anyone from the Norwood Food Pantry about donating the items to them, but he was aware that the Norwood Food Pantry dealt with only canned goods. Joseph has stated that he planned to give any items that the Norwood Food Pantry did not need to another local charity, The Abundant Table, although Joseph had not contacted that charity either prior to having the items removed from the old high school. Joseph did not label any of the items “Abundant Table.”
21. When the Superintendent found out what had taken place, he called Joseph and instructed him to return all of the equipment by the end of the day on Saturday, June 25, 2011.
22. The Superintendent has estimated that the total value of the equipment removed by Joseph was $2,950, although Joseph disputed that amount. Joseph admitted to removing seventeen pieces of equipment on June 24, 2011.
23. Joseph had the equipment returned on Saturday, June 25, 2011. Returning the equipment required the use of two NPS custodians, who had to be paid overtime by the NPS, as well as an NPS truck.
24. According to the NPS Superintendent, the total cost incurred by the town for NPS custodians to move equipment from 82 Chapel Street back to the old Norwood High School on June 25, 2011 was $270.08. Once returned, the equipment was left to a salvage company.
25. On June 26, 2011, Joseph met with the Superintendent and members of the School Committee. Approximately one week later, Joseph resigned from the
School Committee because of his above-described actions.
Conclusions of Law
26. Section 23(b)(2)(ii) of G.L. c. 268A prohibits a municipal 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.
27. Obtaining cafeteria equipment at no charge and receiving the assistance of NPS employees during their work hours using NPS vehicles were privileges.
28. Obtaining the cafeteria equipment was unwarranted because it was secured contrary to specific instructions given by the Superintendent. Using the custodians on NPS time and NPS trucks to transport the equipment was unwarranted because NPS resources are not to be used for private purposes.
29. The cafeteria equipment removed by Joseph was valued by the Superintendent to be worth $2,950. Joseph disputes that amount, but admits that he removed, and later returned, seventeen pieces of equipment from the school. The equipment was worth substantial value, $50 or more. Additionally, the NPS resources used were also worth $50 or more and, therefore, of substantial value.
30. These privileges were not properly available to similarly situated individuals.
31. Joseph knowingly or with reason to know used his official position to secure these privileges because he knew or had reason to know that the reason the NPS secretary gave him the labels and the custodians helped him transport the equipment because he was a School Committee member.
32. Therefore, by acquiring school kitchen equipment for a private use, and by using public resources of substantial value to transport school kitchen equipment from the old high school to Joseph’s private restaurant, and then by using those resources to transport the equipment back to the school, Joseph twice violated § 23(b)(2)(ii).
In view of the foregoing violations of G.L. c. 268A by Joseph, 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 Joseph:
(1) that Mark Joseph pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $5,000, as a civil penalty for twice violating G.L. c. 268A, § 23(b)(2)(ii);
(2) that Mark Joseph pay to the Town of Norwood, with such payment delivered to the Commission, the sum of $511.76 ($241.68 from June 24, 2011 plus $270.08 from June 25, 2011) to reimburse the Town for use of Town employees and Town vehicles; and
(3) that Mark Joseph 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
Mark Joseph Date
Karen L. Nober Date
I, Mark Joseph, have personally read the above Disposition Agreement. I understand that it is a public document and that by signing it, I will have agreed to all of the terms and conditions therein, including payment of $5,000, to the Commonwealth of Massachusetts, and payments of $511.76 to the Town of Norwood, with such payments to be delivered to the State Ethics Commission.
Mark Joseph Date