Docket No. 552

In the Matter of Frank R. Mazzilli

Date: May 2, 1996

Disposition Agreement


The State Ethics Commission ("Commission") and Frank Mazzilli
("Mazzilli") enter into this Disposition Agreement ("Agreement")
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 12, 1994, 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 Mazzilli. The
Commission has concluded its inquiry and, on April 11, 1995, found
reasonable cause to believe that Mazzilli violated G.L. c. 268A,
s.s.17 and 23(b)(2).

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

1. Mazzilli was, during the time relevant, the Carver,
Marion, Wareham Regional Landfill Committee ("Landfill Committee")
chairman. As such, Mazzilli was a municipal employee as that term
is defined in G.L. c. 268A, s.1.

2. As of 1993, the Landfill Committee was operating a large
landfill located in Carver, Massachusetts ("Landfill"). The
Landfill served as a rubbish disposal site for the region. As of
1993, the Landfill Committee was basically in the process of
closing the Landfill.

3. During the time relevant, Mazzilli owned a large piece of
property in Carver located at 73 Main Street off Route 58.

4. As of May/June, 1993, Mazzilli was leasing space on that
property to Phillip LaMarca. LaMarca was operating a tire
recycling business.[1] By this time, because of various mechanical
and financial difficulties, a huge number of tires, approximately
25,000, shredded and otherwise, had accumulated on the site. One
of LaMarca's primary difficulties was finding a landfill that would
accept the shredded tires at a price he could afford.

5. The volume and nature of the tire material was such that
in early 1993 the Carver fire chief began pressing LaMarca to have
them removed; however, as the owner of the site, Mazzilli was
ultimately responsible for their removal.

6. Energy Answers Corporations Operators, Inc. ("EACO")
provides various operational services at landfills. As of May
1993, EACO had a contract with the Landfill Committee to accept
demolition debris to help raise revenues to pay for the close of
the Landfill.[2]

7. EACO employed William Bigelow III ("Bigelow") as its site
supervisor at the Landfill. He was responsible for the day-to-day
operation of the Landfill.

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8. In or about late May or early June, 1993, Mazzilli
contacted Bigelow regarding the tires. Mazzilli explained that
LaMarca was Mazzilli's tenant and needed a place where he could
dump shredded tires. Mazzilli asked Bigelow to accept the tires.
Bigelow agreed.[3]

9. While EACO usually charged anywhere from $25 to $45 per
ton for debris, EACO gave LaMarca a price of $15 per ton.
According to the testimony of Howland and Bigelow, EACO did this
because it could use the shredded tires as road base. In other
words, the shredded materials were not debris, but rather could be
used in lieu of something which EACO would have to otherwise pay
for, such as gravel or other suitable fill materials.

10. Between May 1993 and July, 1993, LaMarca dumped
approximately 880 tons of tires, for which he paid $13,224 in fees.
Apparently, only 250 to 500 tons of this material could be used as
road base. The rest were treated as regular debris.
(Nevertheless, LaMarca only paid $15 per ton for all this dumping.)

11. At various points while LaMarca was dumping as described
above, he had difficulty paying for the dumping fees. On several
such occasions, Mazzilli assured EACO that the bills would be paid.
Consequently, EACO continued to allow LaMarca to dump
notwithstanding those financial difficulties.

12. At some point in or about late June 1993, Bigelow
concluded that EACO had accepted all the tires it could use for
road fill. He did not want to accept any more tires for this
purpose. He communicated this to LaMarca and Mazzilli. Mazzilli,
however, asked Bigelow to continue accepting shredded tires for
road fill. After Bigelow consulted with his superiors, EACO
decided to continue accepting the materials. Eventually, at some
point in or about July 1993, Bigelow and his superiors concluded
that the Landfill could accept no more tire material at road fill
rates and so communicated that to LaMarca. Thereafter, the
Landfill accepted no more such tires at the $15 rate.

13. LaMarca could not afford to dump the tires at the regular
debris rate. He could find nowhere else to dump the tires at a
price he could afford. Consequently, he stopped doing business as
a tire recycler, leaving a large inventory of used or shredded
tires on Mazzilli's property.

14. Mazzilli eventually paid for the cost of removing these
tires himself. The cost was approximately $50,000.

15. Section 17(c) of the Conflict of Interest Law, G.L. c.
268A, prohibits a municipal employee from acting as agent for
anyone other than the municipality in relation to a particular
matter in which the municipality has a direct and substantial
interest.

16. The contract between the Landfill Committee and EACO
was a particular matter.[4]

17. The Landfill Committee had an obvious direct and
substantial interest in that contract both because it was
responsible for the proper closing of the Landfill and because it
had an interest in a portion of the dumping fees generated.

18. Mazzilli acted as LaMarca's agent in introducing LaMarca
to Bigelow, asking Bigelow to accept LaMarca's tires at their first
meeting, and thereafter on at least one occasion asking Bigelow to
accept more tires.

19. These actions were in relation to the Landfill
Committee/EACO contract because (1) they involved material which
would be placed into the Landfill, and, therefore, these actions
could affect the proper closing of the Landfill under the contract;
and, (2) because the material was not characterized as debris,
these actions affected the Landfill Committee's portion of the
dumping fees under the contract.

20. Therefore, by acting as LaMarca's agent in relation to a
contract in which the Landfill Committee had a direct and
substantial interest, while being a municipal employee as a member
of the Landfill Committee, Mazzilli violated s.17(c) on numerous
occasions as described above.

21. Section 23(b)(2) prohibits a municipal employee from
using or attempting to use his official position to secure an
unwarranted privilege of substantial value for anyone not properly
available to similarly situated people.

22. By introducing LaMarca to Bigelow, by asking Bigelow to
accept the tires, and by on at least one occasion asking Bigelow to
continue accepting the tires at the reduced $15 rate, Mazzilli, as
the Landfill Committee chair, put Bigelow in an implicitly
pressured situation such that Bigelow would be strongly compelled
to grant those accommodations to LaMarca. Such requests under such
circumstances involve the use of public position for an unwarranted
privilege.[5]

23. The privilege was clearly of substantial value because
the rate LaMarca was paying was considerably below the market rate
for debris.[6]
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24. Therefore, by introducing LaMarca to Bigelow, by asking
him to accept the tires, and by on at least one occasion asking
Bigelow to continue accepting LaMarca's tires, Mazzilli used his
public position to secure unwarranted privileges of substantial
value for LaMarca, thereby violating s.23(b)(2).[7]

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

(1) that Mazzilli pay to the Commission the sum of seven
thousand five hundred dollars ($7,500.00) as a civil penalty
for violating G.L. c. 268A, s.17(c) and 23(b)(2) in his
dealings with Bigelow;[8] and

(2) that Mazzilli 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] Basically, LaMarca would accept used tires for a small
fee, shred them, and then dispose of them at various landfills in
the area. He would make a profit if the fees he charged exceeded
the fees he paid the landfills.

[2] Pursuant to this contract, the Landfill Committee was to
receive a certain portion of the dumping fees for debris.

[3] Bigelow discussed Mazzilli's request with his (Bigelow's)
supervisor at EACO, Eban Howland.

[4] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court and petitions of
cities, towns, counties and districts for special laws related to
their governmental organizations, powers, duties, finances and
property. G.L. c. 268A, s.1(k).

[5] The Commission has made clear that a public official may
not solicit people he regulates for private commercial
accommodations. The reason for this prohibition is that the
regulatee is an inherently exploitable position vis-a-vis the
regulator.

[6] Even if the road base rate was reasonable, the original
decision by EACO to accept the tires as "road base" as opposed to
debris was itself a decision worth thousands of dollars to LaMarca.
While the decision may have been justified on the merits, namely
that the materials could, in fact, be used for road base, the
decision was made under inherently strained circumstances. In any
event, the evidence makes clear that at some point during the
summer of 1993 Bigelow continued to accept the tires at the reduced
rate even though they no longer could be used as road base. In
that respect, the accommodation was certainly of substantial value.
Thus, where between 380 to 630 tons of tires should have been
charged the normal rate of $25 to $45 per ton, LaMarca saved $10 to
$30 per ton, or a total of between $3,800 and $18,900.

[7] In effect, Mazzilli was also securing an unwarranted
privilege for himself as well because as the property owner he was
ultimately responsible for disposing of the tires.

[8] Included in this $7,500 penalty is the recognition that
Mazzilli personally benefitted by having these tires removed from
his property.

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End of Decision