Public Enforcement Letter 92-3

John Marchesi
c/o Ralph Cianflone, Jr., Esquire
Cianflone & Cianflone
59 Bartlett Avenue
P.O. Box 1405
Pittsfield, MA 01202

August 20, 1992

Dear Mr. Marchesi:

As you know, the State Ethics Commission has conducted a
preliminary inquiry regarding an allegation that you utilized
City of Pittsfield Department of Recreation employees to perform
typing services for the Massachusetts Amateur Softball
Association (MASA), an organization for which you serve as state
commissioner. The results of our inquiry (discussed below)
suggest that the conflict of interest law may have been violated.
Due to a number of mitigating circumstances (also discussed
below), the Commission has determined that further proceedings
are not warranted. Rather, the Commission and you have agreed
that the public interest would be better served by disclosing the
facts revealed during our inquiry and explaining the applicable
provisions of the law with the expectation that this will ensure
both your and other government employees' future understanding of
and compliance with the conflict law. By agreeing to this public
letter as a final resolution of this matter, you do not
necessarily admit to the facts and law as discussed below. The
Commission and you have agreed that there will be no formal
action against you, and that you have chosen not to exercise your
right to a hearing before the Commission.

I. Facts

Since 1965 you have served the City of Pittsfield as the
Parks Department Director, and have worked for the same
department since 1956. Your responsibilities have included the
supervision of a secretary and an assistant recreation department
supervisor.

In 1977 the National Amateur Softball Association appointed
you as the state commissioner of MASA. MASA is a non-profit
unincorporated organization existing to promote amateur softball
in Massachusetts. As the state commissioner, you essentially
serve as the chief administrator for MASA. Currently, there are
1700 MASA registered teams. You do not draw a salary from MASA,
and the organization has no employees.

Your MASA administrative duties peak during the months of
May, June and July. While you perform most of this administrative
work yourself on your own time, you have occasionally assigned
work to the recreation department secretary and the recreation
department supervisor. This work involved the typing of letters,
team rosters and umpire lists. The great majority of MASA teams
and leagues are located outside the City of Pittsfield. From 1988
to 1991, the department secretary performed approximately 80
hours of MASA work (1 to 1.5 hours a week during the busy three
months). In 1991, the assistant recreation department supervisor
performed approximately two hours a week of MASA work during a
ten week period, or roughly 20 hours. All parties interviewed
during the Commission's inquiry stated that the department's
performance of MASA work did not interfere with regular City of
Pittsfield business.

II. The Conflict of Interest Law

As the City of Pittsfield Recreation Department Director,
you are a municipal employee for the purposes of the conflict of
interest law, G.L. c. 268A. General Laws c. 268A, s.23(b)(2)
prohibits a municipal employee from knowingly, or with reason to
know, using his official position to secure for others
unwarranted privileges which are of substantial value[1] and
which are not properly available to similarly situated
individuals. The Commission has routinely interpreted s.23(b)(2)
as forbidding public officials from using public resources for
their private interests. See, e.g., P.E.L. 894 (Undersecretary of
Economic Affairs violated s.23(b)(2) by using state secretarial
services and stationary to help obtain a free trip to the Soviet
Union to promote world

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peace); In re Buckley, 1983 SEC 157 (City of Boston employee
violated s.23(b)(2) by using city stationery to further private
landlord interest); Commission Advisory No. 4 (public resources
such as office equipment, telephones and typewriters cannot be
used to advance personal, private or political interests of
public employees). The essence of s.23(b)(2) is that public
resources may only be allocated for public business, and may not
be utilized to address individual concerns of public employees,
even if those concerns are publicspirited in nature. By directing
city employees to devote approximately 100 hours of city time
towards MASA's administrative needs that were unrelated to city
business, you extended an unwarranted privilege of substantial
value to MASA. Thus, it appears that you may have violated
s.23(b)(2).

As indicated above, the Commission has determined that a
public adjudicatory proceeding is not necessary to resolve this
case.[2] In choosing to resolve this case by means of a public
enforcement letter only, the Commission was mindful of the
following mitigating factors:

1. You did not obtain any personal financial benefit as the
MASA state commissioner.


2. It was determined the purpose of your securing city
secretarial services for MASA was to promote amateur softball
throughout Massachusetts, a public-spirited endeavor, not unlike
your official recreation duties to the City of Pittsfield.

3. You cooperated fully throughout our inquiry.

4. The use of public resources for MASA's benefit was
balanced by your working long hours for the Recreation Department
and accruing hundreds of hours of unused compensatory time.

5. You have agreed to contribute to the City of Pittsfield
100 hours of your compensatory time.

III. Disposition

Based on its review of this matter, the Commission has
determined that the sending of this letter should be sufficient
to ensure your understanding of and your future compliance with
the conflict law. This matter is now closed.

-----------------------------------


[1] Anything valued at $50 or more is substantial value.
Commonwealth v. Famigletti, 4 Mass. App. Ct. 584, 587 (1976).

[2] The Commission could have authorized adjudicatory
proceedings which can result in fines up to $2000 per ethics
violation.

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