Docket No. 461

In the Matter of Charles J. Manca

January 28, 1993

Disposition Agreement


This Disposition Agreement (Agreement) is entered into
between the State Ethics Commission (Commission) and Mayor
Charles J. Manca (Mayor Manca) pursuant to s. 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, s. 4(j).

On July 14, 1992, the Commission initiated, pursuant to G.L.
c. 268B, s. 4(j), a preliminary inquiry into possible violations
of the conflict of interest law, G.L. c. 268A, by Mayor Manca.
The Commission has concluded its inquiry and, on December 10,
1992, found reasonable cause to believe that Mayor Manca violated
G.L. c. 268A.

The Commission and Mayor Manca now agree to the following
findings of fact and conclusions of law:

1. Mayor Manca was, during the time relevant, the Mayor of
the City of Gardner. As such, Mayor Manca was a municipal
employee as that term is defined in G.L. c. 268A, s. 1.

2. As mayor, Mayor Manca is required by law to sign all
contracts of $5,000 or more. G.L. c. 43, s. 29.

3. Manca Brothers, Inc. is a Massachusetts corporation
engaged in the business of trash removal and recycling. It is
owned by Mayor Manca's brother, John F. Manca.

4. In or about August, 1991, the City of Gardner Board of
Health issued a request for proposals for a container recycling
contract (the Contract). Manca Brothers and one other vendor
submitted bids. On August 28, 1991, the City's purchasing agent
opened the bids and certified Manca Brothers as being the lowest
qualified bidder. The value of the contract was approximately
$6,000 [1].

5. Once the Contract was awarded, it went through the
customary city review and approval process. It was first signed
by John F. Manca as president of Manca Brothers. It was then
signed by the city auditor and purchasing agent. Finally, on
September 17, 1991, Mayor Manca signed the Contract [2].

6. By affidavit dated October 30, 1992, Mayor Manca stated
that he did not realize at the time he signed the Contract that
it involved his brother's company. He also stated that he does
not routinely look at the vendor's name or the vendor's signature
on small contracts, since he feels assured by seeing the
purchasing agent's signature that the vendor was the low bidder.

7. Section 23(b)(3) prohibits a municipal employee from
knowingly, or with reason to know, acting in a manner which would
cause a reasonable person knowing all of the facts to conclude
that anyone 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 [3].

8. By signing the Contract where it involved his brother's
company, Mayor Manca created an appearance of impropriety, namely
an appearance that his signing the contract may have been based
in part on the fact that his brother had a financial interest in
the contract. Therefore, Mayor Manca's signing the Contract under
these circumstances would cause a reasonable person knowing all
of the relevant facts to conclude that Mayor Manca's brother can
unduly enjoy his favor in the performance of his official duties
[4]. Consequently, Mayor Manca violated s. 23(b)(3) [5].

9. In his defense, Mayor Manca states that when he signed
the contract, he was not aware that it involved his brother's
company. Lack of knowledge, however, is not a defense to a s.
23(b)(3) violation. Section 23(b)(3) has a "knowingly or with
reason to know" standard [6]. In the Commission's view, Mayor
Manca should have known what he was signing and who the vendor
was. This is so for two reasons. First, the courts have made
clear that a mayor's signing of a contract is not just a
ministerial act. Lumarose Equipment Corp. v. Springfield, 15
Mass. App. Ct. 517, 520 (1983). It is intended to place a limit
on the power of subordinate public officials in making contracts
so as to unify control of the city's commercial transactions and
guard against waste by departments of government. Urban
Transport, Inc. v. Mayor of Boston, 373 Mass. 693 (1977). In
other words, while one might not expect a mayor to read every
word of what can often be a voluminous contract, one would expect
a mayor to know what the

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contract was for, how much money was involved, and who the
contractor was, before signing it. Second, unless a mayor takes
the time to find out the nature of the contract and the identity
of the vendor, he has no way of avoiding a conflict of interest
situation such as occurred here. In short, it is incumbent on a
mayor to establish a process by which any contracts or other
particular matters in which he has a conflict of interest will be
identified.

10. Mayor Manca also raises by way of defense the fact that
on August 24, 1991, in a letter to the city clerk he disclosed
the fact that Manca Brothers was in the fourth year of a five
year contract to operate the city's landfill and that Manca
Brothers was owned by his brother. Generally, an appropriate
written disclosure to the city clerk does protect a municipal
employee from a s. 23(b)(3) violation. A s. 23(b)(3) defense is
not available here because to have been effective, the disclosure
should have been made at the time Mayor Manca signed the Contract
and it should have disclosed the particular circumstances of this
contract, such as the nature and amount of the Contract and his
brother's interest in the Contract. Indeed, even if the
disclosure satisfied the s. 23(b)(3) requirements, it would not
have avoided the conflict of interest problem where an immediate
family member's financial interests were involved. In other
words, in order for Mayor Manca to have made a proper disclosure,
he would have had to have known that he was about to participate
in a particular matter in which his brother had a financial
interest. He would be barred from so participating under G.L. c.
268A, s. 19, cited above. Therefore, other than by abstaining, it
would have been impossible for Mayor Manca to avoid a conflict of
interest violation under these circumstances.

In view of the foregoing violation of G.L. c. 268A, s.
23(b)(3) by Mayor Manca, 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 Mayor Manca:

(1) that Mayor Manca pay to the Commission the sum of five
hundred dollars ($500) as a civil penalty for violating G.L.
c. 268A, s. 23(b)(3); [7] and

(2) that Mayor Manca waive all rights to contest the
findings of fact, conclusions of law and terms and
conditions contained in this Agreement in this or any other
related administrative or judicial proceedings to which the
Commission is or may be a party.


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[1] The exact value is indeterminable because the Contract
was based on unit prices. In other words, Manca Brothers was to
receive a certain amount each month for the rental of containers
and then a certain amount on each occasion when it emptied and
returned a container. The $6,000 is an estimate based on
quotations requested and received by the Board of Health prior to
the advertisement for bids, and actual costs.

[2] Pursuant to standard city procedures, there were
actually six separate copies of the Contract, each one duly
executed by all of the foregoing people.

[3] Section 23(b)(3) goes on to provide that "it shall be
unreasonable to so conclude if such officer or 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."

[4] As the Commission stated In re Keverian, 1990 SEC 460,
462, regarding situations where public officials have private
dealings with people they regulate in their official capacities,
"And even if in fact no abuse occurs, the possibility that the
public official may have taken unfair advantage of the situation
can never be completely eliminated. Consequently, the appearance
of impropriety remains." Here too, for the same reason, the
appearance of impropriety unavoidably arises when a mayor signs a
contract affecting an immediate family member, even if in fact no
actual abuse occurs.

[5] The Commission is not aware of any evidence indicating
(a) there was any personal gain to the Mayor in this matter, or
(b) there was any harm to the City as a result of the Mayor
signing the contract. Of course, no such findings are necessary
to establish a violation of G.L. c. 268A.

[6] G.L. c. 268A, s. 19 prohibits a municipal employee from
participating as such in a particular matter in which to his
knowledge an immediate family member has a financial interest. As
a general rule, a municipal official signing a contract involving
an immediate family member would violate s. 19. See, e.g., In re
Studenski, Comm. Dkt. No. 211 (June 23, 1983). Here,

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Mayor Manca has asserted under oath that he did not have the
requisite knowledge that the Contract involved his brother's
company, but he concedes that he had reason to know.

[7] The Commission is authorized to impose a fine of up to
$2,000 for each violation of G.L. c. 268A. Here, however, the
Commission has agreed to a relatively small fine because (1) this
contract appears to have followed all the appropriate bid, review
and approval procedures; (2) it is a relatively small contract in
dollar amount; and (3) although not a defense, it is mitigating
that Mayor Manca had disclosed in writing to the city clerk that
his brother was the owner of Manca Brothers.