In the Matter of Diego Nicolo
November 9, 2007
This Disposition Agreement is entered into between the State Ethics Commission and Diego Nicolo, pursuant to Section 5 of the Commission's Enforcement Procedures. This Agreement constitutes a consented-to final order enforceable in Superior Court, pursuant to G.L. c. 268B, s. 4(j).
On September 13, 2006, the Commission initiated, pursuant to G.L. c. 268B, s.4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Nicolo. The Commission concluded its inquiry and, on September 21, 2007, found reasonable cause to believe that Nicolo violated G.L. c. 268A, s.s.17(a) and 23(b)(2).
The Commission and Nicolo now agree to the following findings of fact and conclusions of law:
Findings of Fact
1. At all relevant times, Nicolo was a North Reading Water Department ("Water Department") employee. As such, Nicolo was a municipal employee as that term is defined in G.L. c. 268A, s.1(g).
2. Sometime in 2004, Nicolo and North Reading Highway Department employee James Murray started an unincorporated Wilmington-based business called "D. Nicolo J. Murray Water Pipe Testing."
3. Between 2004 and 2005, Nicolo and/or Murray, in their private capacity, performed pressure tests on water lines on properties located at Holt Road, Mary Road, Central Place and for a business known as the Hornet's Nest, all properties located in North Reading.
4. More specifically, in or about October 2005, Nicolo and Murray in their private capacity performed a pressure test for property located on Mary Road. Nicolo's supervisor at the Water Department inspected their work.
5. Nicolo and Murray were paid and split a total of $300 for the pressure test at Mary Road.
6. In or about October 2005, Nicolo and Murray were also hired privately to install approximately 60 feet of water line and a hydrant on the Mary Road property. They were each paid approximately $150 for the work. Nicolo's Water Department supervisor inspected their installation work.
7. In or about November 2005, Nicolo, in his official capacity as a Water Department employee, went to the property located at Holt Road and turned the water on so that the contractor could test the line. The contractor found a leak and repaired it. As a Water Department employee, Nicolo performed an informal inspection of the contractor's repair work.
8. After completing the repair, the contractor finished installing a water line, a hydrant, and a tap line so that water could be provided to a house. Nicolo again inspected the new installation to verify that the work was done properly
9. Sometime during this process, the contractor asked Nicolo if he knew of anyone who could do the required water pressure test. Nicolo responded by saying that he could do the job. At the time of this discussion, Nicolo was on town time and in a uniform that included his town office logo.
10. Nicolo, in his private capacity, later performed the water pressure test. He took vacation time from his municipal job to do the test. Nicolo's Water Department supervisor performed the required inspection.
11. Nicolo was paid privately approximately $400 for doing the test. He gave some amount of that money to his business partner, James Murray.
12. In or about December 2004, Nicolo performed a private water pressure test for a business known as the Hornet's Nest. Nicolo's Water Department supervisor inspected the test.
13. Nicolo was paid privately approximately $500 to perform the water pressure test. Nicolo split the money with Murray.
14. In or about August 2005, Nicolo and Murray performed a private water pressure test for a property on Central Place. Nicolo's Water Department supervisor inspected the test.
15. The evidence indicates that Nicolo and Murray were not paid for this work, but instead the contractor lent Nicolo equipment in exchange for the pressure test.
16. Nicolo had asked and received permission to perform private water tests in North Reading from the Water Department
superintendent and the Director of Public Works. Neither Nicolo nor Murray sought advice about how performing and being paid to perform this work might violate the conflict of interest statute.
17. After another town employee raised conflict of interests concerns to Nicolo's supervisor about Nicolo and Murray performing private water pressure tests, Nicolo and Murray stopped doing private water pressure tests and related work in North Reading.
Conclusions of Law
18. Section 17(a) prohibits a municipal employee from, otherwise than as provided by law for the proper discharge of official duties, receiving compensation from anyone other than the town in relation to a particular matter in which the town is a party or has a direct and substantial interest.
19. The Town's inspections of the above-described water pressure tests and the water line installation were particular matters.
20. The Town was a party to the water pressure tests and water line installation that Nicolo and Murray performed privately because the Water Department Superintendent inspected the tests and water line installation. The Town also had a direct and substantial interest in the water pressure tests and water line installation.
21. G.L. c. 268A, s.1(a) defines "compensation" 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."
22. As to Holt Road, Mary Road, and the Hornet's Nest, Nicolo was paid privately for performing private water pressure tests. Nicolo was also privately paid to install a water line on Mary Road. As to Central Place, Nicolo received the benefit of being provided equipment by the contractor in exchange for Nicolo doing the water pressure test. Thus, in all instances, Nicolo received compensation for the private work he performed.
23. This private work was inspected by the town. Therefore, the private work was in relation to the town's inspections.
24. Nicolo's being paid to perform this private work was not otherwise than as provided by law.
25. Thus, Nicolo's receipt of private compensation in relation to matters in which the town had a direct and substantial interest violated s.17(a).
26. Section 23(b)(2) prohibits a municipal employee from knowingly or with reason to know using his official position to secure for himself or others an unwarranted privilege of substantial value which is not properly available to similarly situated individuals.
27. Using one's official position to obtain private work is a privilege.
28. When the contractor on the Holt Road job asked Nicolo if he knew of anyone who could do the required water pressure test, Nicolo, who was on town time and in his official uniform, responded by saying that he could do the job but not on town time. By so responding, while in uniform and on town time, Nicolo in effect used his official position to obtain the job. Therefore, the use of his position was an unwarranted privilege.
29. That unwarranted privilege was of substantial value because Nicolo and Murray split approximately $400 for private work performed on Holt Road that resulted from the use of position.
30. Nicolo's use of his official position to obtain private work is an unwarranted privilege not properly available to similarly situated individuals.
31. Thus, Nicolo used his position to secure an unwarranted privilege of substantial value for himself which was not property available to similarly situated individuals, in violation of s.23(b)(2).
In view of the foregoing violation of G.L. c. 268A by Nicolo, 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 Nicolo:
(1) that Nicolo pay to the Commission the sum of $1,000.00 as a civil penalty for repeatedly violating G.L. c. 268A, s.17(a) and for violating s.23(b)(2);
(2) that Nicolo 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.
STATE ETHICS COMMISSION
David A. Wilson, Acting Executive Director Diego J. Nicolo
Dated: November 28, 2007 Dated: November 9, 2007
I, Diego J. Nicolo, 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 $1,000 to the State Ethics Commission.
Diego J. Nicolo
Dated: November 9, 2007
End Of Decision