Docket No. 483

In the Matter of Wayne Newton

April 5, 1994

Disposition Agreement




This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Wayne Newton
("Newton") 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 August 9, 1993, 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 Newton. The
Commission has concluded its inquiry and, on March 30, 1994, found
reasonable cause to believe that Newton violated G.L. c. 268A.

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

1. Newton was, during the time relevant, the Fire Chief of
the Town of Royalston. As such, Newton was a municipal employee as
that term is defined in G.L. c. 268A, s.1.

2. The selectmen annually appoint the fire chief.

3. In early 1992, the Board of Health ("BOH") condemned an
apartment building at 1 School Street. In early April 1992, a fire
occurred at the property. Newton, as fire chief, sought bids from
local contractors to board-up the building to prevent further acts
of arson.

4. Newton told contractors to submit bids to board-up the
School Street building using at least 1/2" plywood. One contractor
submitted an April 16, 1992 written bid of $1,800 using the
specified 1/2" plywood.

5. Newton also solicited a bid from Selectman John Kirkman.
Kirkman worked for Newton between 1986 and 1991. [Newton
subcontracts carpentry work to Kirkman.] Kirkman submitted an
April 17, 1992 written bid of $1,700 using 3/8" plywood.

6. There was approximately a $350 price difference between
the 1/2" ($875) and the 3/8" ($519) plywood sheets. Although
Kirkman's bid was based on thinner and less expensive plywood than
specified, Kirkman was awarded the contract. Newton, with the
concurrence of the BOH, awarded the job to Kirkman.

7. Newton allowed Kirkman to charge the plywood at the local
lumber yard on the fire department account. Additionally, Newton
allowed Kirkman to use his (Newton's) personal equipment (a
generator and compressor) to perform the job.

8. After the job was completed, Kirkman billed the town for
the entire contract amount of $1,700, although the plywood had been
charged to the fire department. The BOH withheld payment because
they wanted an explanation as to why Kirkman had used the 3/8"
plywood and charged the materials to the fire department account.
In response to the BOH's concern, Kirkman adjusted the bill to
reflect the price difference in the thickness of the plywood.

9. The BOH eventually approved paying Kirkman $1,450 for the
School Street job (i.e., it reduced his bill by an amount equal to
the price difference between the 3/8" and 1/2" plywood).

10. Newton contends that he did not realize that Kirkman's
written bid used 3/8" rather than 1/2" plywood. Additionally,
Newton states that he did not provide any preferential treatment to
Kirkman and that he would have let any other contractor charge the
building materials on the fire department account.

11. 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 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.[1]

12. Newton, by participating in the award of the School
Street contract to Kirkman, whose bid used 3/8" plywood while other
contractors were required to use 1/2" plywood, and subsequently
allowing Kirkman to charge building materials on the fire
department account and use his (Newton's) personal tools on the
job, created the appearance that Kirkman received the


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contract in part because Kirkman, as a selectman, annually appoints
Newton to his fire chief position. This appearance is further
exacerbated by the fact that Kirkman and Newton had a past and
ongoing business relationship. Therefore, Newton's actions under
these circumstances would cause a reasonable person knowing all of
the relevant factors to conclude that Kirkman could unduly enjoy
Newton's favor in the performance of his official duties.
Consequently, Newton violated s.23(b)(3).

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

(1) that Newton pay to the Commission the sum of two
hundred and fifty dollars ($250.00) as a civil penalty
for the violation of G.L. c. 268A, s.23(b)(3); and

(2) that Newton 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] Section 23(b)(3) goes on to provide that "it shall be
unreasonable to so conclude if such officer or 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."

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