November 14, 2012

DISPOSITION AGREEMENT

 

The State Ethics Commission (“Commission”) and Dean Mazzarella (“Mazzarella”) 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 October 14, 2011, 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, by Mazzarella.  On March 16, 2012, the Commission concluded its inquiry and found reasonable cause to believe that Mazzarella violated G.L. c. 268A.

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

 

Findings of Fact

 

  1. Mazzarella has been the mayor of the City of Leominster since 1994.  As the Leominster mayor, Mazzarella is a municipal employee, as that term is defined in G.L. c. 268A, § 1.
  2. In Leominster, there is a 968 square-foot single family home at 72 Carter Street (the “Property”).  As of 2007, the only resident of the home was Mario Cavaioli (“Cavaioli”), the last living son of Thomas Cavaioli, who died in 1960 without a will.  
  3. Mazzarella had a long-standing personal relationship with Cavaioli.  According to Mazzarella, due to the closeness of their relationship, Cavaioli used to tell him, “I should deed the Property over to you,” and, “You might own this house someday.”
  4. In late 2007, Cavaioli, a World War II veteran who was 81 at the time, fell while at home at the Property.  After being treated in a hospital for his injuries, Cavaioli was admitted to a nursing home in Lancaster.
  5. In late 2007, Mazzarella contacted the Leominster Housing Rehabilitation Program Coordinator (the “Rehab Coordinator”) and said that he had a friend, Cavaioli, who was in a rehabilitation center and who needed his home repaired as soon as possible using federal community development block grant (“CDBG”) funds so the friend could return home.  Mazzarella told the Rehab Coordinator they had a limited amount of time to get the property ready for Cavaioli’s return.
  6. Leominster receives approximately $500,000 in CDBG funds each year.  CDBG grants are targeted at low- and moderate-income families.  The CDBG program is designed to bring substandard housing into compliance with various state and federal codes.  The waiting list for rehabilitation funds in Leominster is usually around two years, and there are usually about 10 to 12 applications in the queue at any time.
  7. While the projects are usually done in the order received, the Rehab Coordinator makes adjustments to the order and determines the priority given to CDBG applicants after inspecting the property.  Applicants who have leaking roofs or other unsafe conditions get priority treatment. Veterans and “the most needy” are often moved to the top of the waiting list.  
  8. Due to Mazzarella’s late 2007 intervention, the Rehab Coordinator moved the Property to the top of the waiting list for rehabilitation funds.  At that time, the Rehab Coordinator had not yet inspected the Property, and he did not learn until later that Cavaioli was a veteran.
  9. Upon inspecting the Property, the Rehab Coordinator did not find the house in need of emergency repairs.  The Rehab Coordinator understood from talking with Mazzarella that the idea behind the renovation work was to make it possible for Cavaioli to live on the first floor.  The Rehab Coordinator accordingly drew up a scope of work that included renovating the kitchen, bathroom, and living room, all on the first floor, as well as installing a new electrical service panel.  The work was put out to bid, and bids were opened on December 29, 2007.  The winning bid was $19,850.
  10. The City’s renovation work program manual states that “[e]ligibility for participation in this program requires that applicants … have clear title to the property.”  According to the terms of the City’s renovation work contract, “If the rehabbed building is sold or title transferred, or refinanced, the total amount of the grant received shall be refunded to the City of Leominster.”   The contract goes on to state that the City will place a lien on the property at the Registry of Deeds so as to enforce this provision.  
  11. The Rehab Coordinator does a title search on every property being considered for renovation work funds.  The City has a standard form that applicants sign, after which the Rehab Coordinator goes to the Registry of Deeds to record the lien.  If there are title issues, the City refuses to renovate the property.  
  12. The Rehab Coordinator could not find any record at the Registry of Deeds regarding the Property.  The Assessor’s Office said the Property might be in probate.  The Rehab Coordinator brought the Property title issue to Mazzarella's attention, telling the mayor, “We really can’t go forward with this.”  Mazzarella told the Rehab Coordinator, “Let’s go ahead with it, and I’ll worry about the paperwork.”
  13. The Rehab Coordinator proceeded with the renovation of the Property, although no lien securing the renovation work loan was ever filed by the City.
  14. During the renovation of the Property, the plumbing inspector determined that the Property needed a new water main.  In addition, the old windows were replaced with new energy efficient vinyl windows.  On January 10, 2008, the project contractor submitted a change order reflecting the new additional costs of the water main and replacement vinyl windows, as well as some other non-code-related work.  The Rehab Coordinator approved the change order, raising the project cost by $5,269 to a total of $25,119.
  15. In or about late January 2008, the project contractor completed the work, submitted its invoice to the City and was paid $25,119.
  16. Cavaioli moved back into the house on the Property shortly after the renovation work was completed.   
  17. Cavaioli died in June 2010, at the age of 84.  Cavaioli did not have a will.  Cavaioli was survived by three nieces, and whatever interest Cavaioli had in the Property went to the nieces.  It is unknown at this time if there are other heirs that would have an ownership interest in the Property. 
  18. In or around December 2010, two of the three nieces agreed to transfer their interest in the Property to Mazzarella at no cost.  Mazzarella offered the third niece $2,000 for her interest.  She refused his offer. 
  19. A deed registered on March 2, 2011, with the Worcester Northern Registry of Deeds, indicates that the two nieces signed over their interest in the Property to Mazzarella for less than $100. 
  20. As of November 28, 2012, the Leominster Assessor’s Office listed the assessed value of the Property as $130,400.  The Property is currently assessed to Edward Cavaioli et al. in care of Dean Mazzarella.[1]        
  21. On January 18, 2012, the City initiated a tax taking on the Property for the non-payment of real estate taxes in the amount of $1,874.95.

 

Conclusions of Law

Section 23(b)(2)

 

 22. Section 23(b)(2) [2] 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.

 23. The securing of $25,119 in CDBG funds to renovate the Property was a privilege.

 24. Mazzarella used his official position as mayor to secure the privilege by instructing the Rehab Coordinator to expedite the CDBG process, to skip over waiting 
        applicants and to proceed with renovating the Property without a lien on the Property, which lien would have protected the City’s interests.

 25. The privilege was unwarranted because it was secured in noncompliance with the City’s protocol and standard practice for awarding CDBG renovation work 
        grants.

 26. The privilege was of substantial value[3] as it involved a total of $25,119 in CDBG funds. 

 27. This privilege was not properly available to similarly situated individuals.

 28. Therefore, by securing this privilege, Mazzarella violated § 23(b)(2).

 

Section 23(b)(3)

 

 29. 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 that person’s 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.  This subsection goes on to provide that the 
        appearance of impropriety can be avoided if the public employee discloses 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.                                                           

30.  Mazzarella acted in his capacity as mayor to secure $25,119 in CDBG funds to renovate the Property, which was owned and/or occupied by Cavaioli.

 31. Whenever he so acted, Mazzarella had a significant personal relationship with Cavaioli.

 32. Mazzarella made no public written disclosure of these facts.

 33. Therefore, Mazzarella knew or had reason to know that he was acting in a manner which would cause a reasonable person, knowing all of the relevant facts, 
        to conclude that Cavaioli could improperly influence or unduly enjoy Mazzarella’s favor in the performance of his official duties as mayor or that he was likely 
        to act or fail to act as a result of the undue influence of Cavaioli.  Consequently, Mazzarella repeatedly violated § 23(b)(3).

 

Resolution

 

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

  1. that Mazzarella pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $4,000[4] as a civil penalty for violating G.L. c. 268A, §§ 23(b)(2) and (b)(3);  and
  2. that Mazzarella 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

 

//signed//                           10/23/12                    
Dean Mazzarella               Date  


//signed//                           11/14/12
Karen L. Nober                 Date
Executive Director

 

 

I, Dean Mazzarella, 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 $4,000 to the Commonwealth of Massachusetts, with such payment delivered to the State Ethics  Commission.

 

//signed//                       10/23/12
Dean Mazzarella            Date

 



[1] Edward Cavaioli (now deceased) was Mario Cavaioli’s brother.  

[2] G.L. c. 268A was amended by c. 28 of the Acts of 2009, effective September 29, 2009.  The language of § 23(b)(2) now appears in § 23(b)(2)(ii) of G.L. c. 268A, as amended, and states:  “No current officer or employee of a state, county or municipal agency shall knowingly, or with reason to know, use or attempt to use such official position to secure for such officer, employee or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals.”

[3] For the time period in question, the Commission relies on Commonwealth v. Famigletti, 4 Mass. App. Ct. 584, 587 (1976), to determine that anything valued at $50 or more is "of substantial value."

[4] At the time of Mazzarella’s violations of § 23, the maximum civil penalty was $2,000 per violation.