February 23, 2011

Decision And Order

Petitioner filed an Order to Show Cause ("OTSC") on August 24, 2010, against Respondent Louis Picano ("Picano"). The OTSC alleged that Picano was at all relevant times, a City of Lynn ("City") Board of Health Sanitary Inspector ("BOH Inspector") and also a constable appointed by the City's Mayor. The OTSC alleged that from 2006 to 2009, Picano repeatedly violated § 20 by serving as a BOH Inspector at the same time he received payment for his constable services to private parties pursuant to his constable appointment contract made by the City. In addition, the OTSC alleged that Picano repeatedly violated § 23(b)(3) by performing BOH inspections of properties owned and/or managed by private parties for whom he had performed constable services.

On November 2, 2010, the parties filed a Joint Motion to Cancel the Adjudicatory Hearing and to Decide the Matter on Stipulations of Fact and Law ("Joint Motion"). The parties also filed Stipulations of Fact and Law on November 2, 2010 ("Stipulations"). On November 12, 2010, the Hearing Officer allowed the Joint Motion and provided the parties with the opportunity to file briefs. The Petitioner timely filed a brief. The Respondent did not file a brief. In rendering this Final Decision and Order, each undersigned member of the Commission has considered the evidence in the public record.

I. Facts

The Commission finds the following facts based on the parties' Stipulations.

1. Between 1998 and 2009, Picano was a City BOH Inspector, and as such Picano was a municipal employee.

2. Between 1998 and 2009, Picano was a constable appointed by the City's Mayor.

3. Picano's constable appointment was a contract made by a municipal agency in which the City was an interested party.

4. Picano had a financial interest in his constable appointment contract each time that he accepted payment for his constable services to private parties.

5. Picano knew of his financial interest in his constable appointment contract.

6. On or about September 18, 1998, the Commission's Enforcement Division sent a private educational letter to Picano advising that G.L. c. 268A, § 20 prohibited BOH Inspectors from holding both BOH Inspector and City constable positions unless their work as constables was part of their BOH Inspector duties and they did not receive additional compensation for performing constable services.

7. From 1998-2009, Picano, while continuing to serve as a BOH Inspector, received additional compensation for performing constable services.

8. The Commission's letter of September 18, 1998, also advised Picano that performing BOH inspections of properties owned by private parties for whom he had performed constable services violated G.L. c. 268A, § 23(b)(3).

9. Following receipt of a complaint in 2006, the Enforcement Division conducted a telephone interview with a person identifying himself as Louis Picano. That person acknowledged receipt of a letter from the Ethics Commission in the late 1990's and informed the Enforcement Division that he was only serving process as part of his duties as a BOH Inspector. The Enforcement Division records indicate that the call was placed to the Lynn BOH office where Picano works.

10. Since 2004, constable services have not been part of Picano's BOH Inspector duties.

11. From 2006-2009, Picano, on at least fifty (50) occasions, performed constable services on behalf of private property owners and/or managers in the City for which he received compensation.

12. From 2006-2009, Picano, on at least thirty-two (32) occasions, performed inspections as a BOH Inspector on properties owned and/or managed by private parties for whom he performed constable services.

II. Discussion

A. G.L. c. 268A, § 20 Allegations

Section 20 of G.L. c. 268A prohibits a municipal employee from knowingly having a financial interest, directly or indirectly, in a contract made by a municipal agency of the same city or town. In order to establish a violation of § 20 against Picano, Petitioner must prove by a preponderance of the evidence that Picano (1) was a municipal employee, (2) who had a financial interest, directly or indirectly, in a contract made by a municipal agency of the same city or town, (3) of which financial interest he had knowledge or reason to know.

There is no dispute that: (1) Picano was, at all relevant times, a BOH Inspector in the City of Lynn, and as such that he was a municipal employee, (2) Picano was, at all relevant times, a constable appointed by the City's Mayor, and Picano's constable appointment was a contract made by a municipal agency in which the City was an interested party; and (3) Picano knew of his financial interests in his constable appointment contract. It is also undisputed that from 2006 to 2009, while Picano was serving as a BOH Inspector, that, on at least fifty (50) occasions, he also performed constable services on behalf of private owners and/or managers in the City for which he received compensation.

Therefore, based on the parties' Stipulation of Facts and Law, we find that Petitioner has proved by a preponderance of the evidence that Picano violated § 20 on at least fifty (50) occasions by receiving payments for constable services to private parties pursuant to his constable appointment contract made by the City while he was also serving as a BOH Inspector.

B. G.L. c. 268A, § 23(b)(3) Allegations

Section 23(b)(3) prohibits a municipal employee from knowingly or with reason to know acting in a manner that would cause a reasonable person having knowledge of the relevant circumstances to conclude that any person could improperly influence or unduly enjoy his favor in the performance of his official duties or that he was likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. Section 23(b)(3) further provides that "[i]t shall be unreasonable to so conclude if such . . . 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." In order to establish a violation, Petitioner must prove by a preponderance of the evidence that: (1) Picano was a municipal employee; (2) who knowingly, or with reason to know, acted in a manner; (3) which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude; (4) that any person 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.

As previously discussed, Picano was, at all relevant times, a BOH Inspector in the City of Lynn, and as such he was a municipal employee. Picano knowingly, or with reason to know, acted in a manner which would cause a reasonable person having knowledge of the relevant circumstances to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act as a result of kinship, rank, position or undue influence of any party or person, by performing inspections as a BOH Inspector of properties owned by private parties for whom he had performed constable services. It is undisputed that, on at least thirty-two (32) occasions, Picano performed BOH inspections of properties own by private parties for whom he had performed constable services. A reasonable person who knew that Picano was being paid by private property owners to perform constable services would conclude that he would be less than diligent in identifying health code violations when he inspected their premises. There is no evidence that Picano filed any disclosure forms pursuant to § 23(b)(3) to eliminate this appearance. Additionally, Picano had been advised by the Enforcement Division that performing BOH inspections of properties owned by private parties for whom he had performed constable services violated § 23(b)(3).

Therefore, based on the parties' Stipulation of Facts and Law, we find that Petitioner has proved by a preponderance of the evidence that Picano violated § 23(b)(3) on at least thirty-two (32) occasions by performing BOH inspections of properties owned by private parties for whom he had performed constable services.

III. Order

Having concluded that Respondent Louis Picano violated G.L. c. 268A, §§ 20 and 23(b)(3) and pursuant to the authority granted it by G.L. c. 268B, § 4(j), the State Ethics Commission hereby ORDERS Louis Picano to pay a civil penalty of $35,000. [1]

DATE AUTHORIZED: February 18, 2011

DATE ISSUED: February 23, 2011

__ //signed//_____ _____ _ //signed//_____________
Charles B. Swartwood III, Chairman David L. Veator

__ //signed// ____________ ___ //signed//___________
Patrick J. King Paula Finley Mangum


__ //signed//_____________
Martin F. Murphy

TO: Candies Pruitt-Doncaster, Esquire Frank Mondano, Esq.

State Ethics Commission Balliro & Mondano

Enforcement Division 63 Atlantic Avenue, 3 rdFl

One Ashburton Place Boston, MA 02110

Room 619 BY E-MAIL &

Boston, MA 02108 FIRST CLASS MAIL

BY E-MAIL & HAND




[1] The Stipulations state that "if the Commission were to find that Picano violated the conflict of interest law, G.L. c. 268A . . . the parties stipulate that it would be reasonable to impose a civil penalty of $35,000."