Docket 529

In the Matter of Angelo M. Scaccia

Appearances:

David A. Wilson, Esq., Counsel for Petitioner

Paul W. Shaw, Esq., Counsel for Respondent

Commissioners: Brown, Ch., Burnes, Larkin and Rapacki[1]
Presiding Officer: Commissioner George D. Brown, Esq.

Date: November 19, 1996

Decision and Order


I. Procedural History


On June 20, 1995, the Petitioner initiated these proceedings
by issuing an Order To Show Cause ("OTSC") pursuant to the
Commission's Rules of Practice and Procedure. 930 CMR s.s.
1.01(1)(a) et seq. The OTSC alleged, among other things, that
Angelo M. Scaccia ("Scaccia") violated G.L. c. 268A, s.3(b) by
accepting: free meals and golf from Theodore Lattanzio
("Lattanzio"), a registered legislative agent for Philip Morris USA


("Philip Morris"); free golf on two occasions from F. William
Sawyer ("Sawyer"), a registered legislative agent for John Hancock
Mutual Life Insurance Company ("Hancock"); a free meal from William
Carroll ("Carroll"), a registered legislative agent for the Life
Insurance Association of Massachusetts, Inc. ("LIAM"); and a free
meal from Richard McDonough ("McDonough"), a registered legislative
agent for Anheuser-Busch Companies, Inc. ("Anheuser-Busch"), among
other organizations. The Petitioner further alleged that Scaccia
violated G.L. c. 268A, s.23(b)(3) by knowingly, or with reason to
know, receiving each of these gratuities[2] and taking subsequent
actions as a legislator. According to the Petitioner, Scaccia
acted in a manner that would cause a reasonable person, with
knowledge of the relevant circumstances, to conclude that these
legislative agents could improperly influence or unduly enjoy his
favor in the performance of his official duties, or that Scaccia
was likely to act or fail to act as a result of undue influence of
these legislative agents. Additionally, the Petitioner alleged
that Scaccia violated G.L. c. 268B, s.6 on three occasions by
knowingly and willfully accepting from legislative agents gifts
aggregating $100 or more in a calendar year. Finally, the
Petitioner alleged that Scaccia violated G.L. c. 268B, s.7 on two
occasions by filing false Statements of Financial Interests
("SFI"). He failed to disclose his receipt of gratuities
aggregating over $100 from Lattanzio on his SFI for calendar year
1991 and failed to disclose his receipt of gratuities aggregating
over $100 from Sawyer and Carroll on his SFI for calendar year
1993.

On June 27, 1995, Scaccia filed an Answer in which he admitted
that he is a Massachusetts State Representative and that he was
House chairman of the Joint Committee on Taxation from 1991 through
1993. He admitted that he attended a Council of State Governments
conference in Hauppauge, New York on July 30, 1991 and that he
attended a Conference of Insurance Legislators in Amelia Island,
Florida on March 11 and 12, 1993. Scaccia denied all of the other
allegations in the OTSC and asserted the following affirmative
defenses: that the OTSC failed to state a claim upon which relief
can be granted, and that the Respondent's 1991 conduct is beyond
the statute of limitations.

Pre-hearing conferences were held on July 26, 1995, September
11, 1995 and October 16, 1995. At those conferences, issues
surrounding discovery were discussed and Commissioner George Brown,
as the presiding officer, addressed scheduling and management of
the hearing.

On July 21, 1995, Scaccia filed a Motion for Judgment On the
Pleadings. He filed a substitute motion on August 4, 1995. On
October 2, 1995 Commissioner Brown entered an Order denying without
prejudice the Motion For Judgment on the Pleadings and permitting
it to be renewed before the full Commission at the end of the
adjudicatory hearing. In his adjudicatory hearing brief, the
Respondent has raised all of the issues originally addressed in the
previously filed Motion For Judgment On the Pleadings.

To protect information subject to the confidentiality
provisions of G.L. c. 268B, s.4 from disclosure at the hearing, the
parties drafted a confidentiality agreement. On October 20, 1995,
Commissioner Brown incorporated this agreement into a Protective
Order.

Page 838

Evidentiary hearings were held on eleven days: October 25, 26,
and 27, November 1, 3, 13, and 29, December 1, 6, 1995, January 23,
and February 15, 1996. During discovery and throughout the
adjudicatory hearing, Scaccia invoked his state and federal
privileges against self-incrimination.[3] The Petitioner asked the
Respondent a substantial number of questions on the record, to
which Respondent's invocation of privilege was stipulated through
his legal counsel.

After the conclusion of the evidentiary portion of the
hearing, on June 14, 1996, the parties submitted legal briefs. 930
CMR 1.01(9)(k). The parties also presented their closing arguments
before the full Commission on August 6, 1996. 930 CMR s.
1.01(9)(e)(5). Deliberations began in executive session on that
date. G.L. c. 268B, s.4(i); 930 CMR s. 1.01(9)(m)(1).

In rendering this Decision and Order, each undersigned member
of the Commission has considered the testimony, evidence and
argument of the parties, including the hearing transcript.[4]


II. Findings of Fact


Angelo M. Scaccia


1. Scaccia is, and at all times relevant to this proceeding,
has been a Massachusetts state representative from the Hyde Park-
Readville area of Boston.

2. Sandra Scaccia is Scaccia's wife. From 1991 through 1994,
Michael Scaccia, Scaccia's son, was a dependent resident of
Scaccia's household.

3. As a state representative, Scaccia is compensated as
provided in G.L. c. 3, s.9, which does not provide that state
representatives are entitled to receive free meals or golf from
private parties as part of their compensation package. Moreover,
the receipt of free meals or golf by legislators is not authorized
by law for the proper discharge of their official duties.

4. As a state representative during 1991, 1992 and 1993,
Scaccia participated in hearings and debates concerning proposed
legislation and drafted, filed and voted on proposed legislation.

5. From 1991 through 1993, Scaccia served as House chairman
of the Joint Committee on Taxation ("Committee").

6. The Committee, which has primary responsibility for
proposed legislation which relates to taxation, holds hearings and
takes written and oral testimony.

7. Chairmen of the Legislature's committees have extensive
power over the fate of legislation. In particular, chairmen can
schedule hearings and play a key role in a committee's decision to
advance or not advance bills to the full General Court.

8. As a state representative and as a member and House
chairman of the Committee, Scaccia voted on and took other official
action between 1991 and 1993 concerning proposed legislation
relating to the tobacco, alcoholic beverages, and insurance
industries.

9. Scaccia attended a Council of State Governments ("CSG")
conference in Hauppauge, New York from July 28 through August 1,
1991 with his wife, Sandra, and son, Michael. The Council of State
Government holds periodic conferences to bring elected officials
and private sector organizations together to discuss matters
affecting their common interests.

10. Scaccia's campaign committee paid $1075.65 of Scaccia's
expenses for attending the Hauppauge CSG conference of which
$914.95 was for accommodations, $64.50 for meals, $90.20 for
gasoline and $6.00 for tolls. There is no evidence that the
Committee paid for Scaccia's golf at Hauppauge during his July,
1991 stay.

11. Scaccia attended a National Conference of Insurance
Legislators ("NCOIL") conference at Amelia Island Plantation Resort
("Resort") in Amelia Island, Florida from March 12 through 14,
1993. The conference was designed to bring state legislators from
around the United States together to be educated about issues that
affected the insurance industry. Scaccia arrived at the Resort on
March 9, 1993.

12. Scaccia's son, Michael, arrived at Amelia Island on or
before Wednesday, March 10, 1993.[5]

13. Scaccia's campaign committee paid $1,422.50 of his
expenses at Amelia Island of which $384.50 was for airfare, $972.00
was for lodging and $66.00 was for transportation to the airport.
There is no evidence

Page 839

that the Committee paid for Scaccia's meals and golf at Amelia
Island during his March, 1993 stay.


Theodore Lattanzio/Philip Morris


14. In 1991, Lattanzio was employed by Philip Morris as a
registered legislative agent. Lattanzio was Philip Morris'
Regional Director of Government Affairs for the New England region
through July 1991. Lattanzio's responsibilities in that position
included monitoring legislation in Massachusetts relative to Philip
Morris' interests and supervising and directing the activities of
William Delaney, Sr. and William Delaney, Jr., Massachusetts
registered legislative agents under contract with Philip Morris to
lobby on its behalf in Massachusetts.

15. Philip Morris sells tobacco products in Massachusetts
subject to state regulation and taxation. Through its Miller
Brewing Company ("Miller"), Philip Morris sells alcoholic beverages
in Massachusetts subject to state regulation and taxation.

16. Lattanzio first met Scaccia in 1990 at the Eastern
Regional Conference in Manchester, New Hampshire when Lattanzio was
serving as Philip Morris' Regional Director for the New England
Region, a position in which he monitored legislation in the six New
England states relative to Philip Morris' interests. At the 1990
Eastern Regional Conference, Lattanzio incurred a business expense
relative to Scaccia.[6] Lattanzio and Scaccia were not personal
friends.

17. Lattanzio was present at the July, 1991 CSG conference to
represent Philip Morris. Philip Morris was additionally
represented at that conference by Massachusetts lobbyist Delaney,
Sr., as well as others.

18. On July 29, 1991, Scaccia, his wife and his son had
dinner with Lattanzio. According to Lattanzio's business records,
eleven people were present at this dinner, all of whom were either
lobbyists for Philip Morris (or its subsidiary, Miller) or state
legislators from New England states and their family members.

19. The July 29 dinner was not a CSG conference event.

20. Lattanzio paid for the July 29, 1991 dinner (for eleven
people), the cost of which totaled $645.00.[7]

The per person cost of the July 29 dinner was $58.63 and the
amount attributable to Scaccia, his wife and his son was $175.89.
The record contains no evidence that Scaccia paid for his own
dinner or those of his wife and son on July 29, 1991.

21. Lattanzio invited a group of people to play golf on July
30, 1991. Lattanzio handed out golf cart keys to the participants.
Of the nineteen golfers on July 30, 1991, five were tobacco company
lobbyists (three representing Philip Morris), twelve were state
legislators from Lattanzio's New England Region (and their family
members) and two were lobbyists for Massachusetts non-tobacco
business interests. Five of the nineteen individuals who golfed on
July 30, 1991 (including Scaccia and his son) had attended the
dinner Lattanzio hosted the night before.

22. The July 30 golf outing was not a CSG conference event.

23. Lattanzio paid for Scaccia and his son, Michael, as well
as seventeen others (including himself), to play golf on July 30,
1991 at a total cost of $1,068.13.[8] The cost per person of the
July 30 golf was $56.21 per person and the amount attributable to
Scaccia and his son totaled $112.42. The record contains no
evidence that Scaccia paid for his own and his son's golf on July
30, 1991.

24. Lattanzio reported the cost of the July 29, 1991 dinner
and of the July 30, 1991 golf to Philip Morris as a business
expense. Philip Morris reimbursed Lattanzio for business-related
expenses.[9]

25. The following bills relating to the tobacco and alcoholic
beverages industries were pending before the Committee in 1991: H.
1127, An Act Relative To The Sales Of Tobacco Products and
Alcoholic Beverages; H.1835, An Act To Increase The Excise Tax
Imposed By The Sale Of Cigarettes; H. 3161, An Act To Restrict
Cigarette Sales in Vending Machines; H. 4084, An Act Relative To
The Taxation of Cigarettes; H. 4823, An Act Further Regulating The
Cigarette Tax. On February 27, 1991, the Committee, with Scaccia
as chairman, held public hearings on the following bills concerning
tobacco products: H.1290, An Act To Prohibit the Sale of Tobacco
Products In Certain Health Care Facilities and Pharmacies; H. 1293,
H. 2215, An Act To Increase The Fee For Licensing Cigarette Vending
Machines; and H. 3161, An Act To Prohibit The Sale of Tobacco
Products In Certain Health Care Facilities And Pharmacies. (Exhibit
P-56). In

Page 840

November 1991, Scaccia voted as a House member on proposed
amendments to H. 6280, An Act To Improve Health Care Access and
Financing, which contained an increase in the cigarette tax
and against which the tobacco interests lobbied. Tobacco related bills
before the Committee in 1992 included: H. 1037, An Act To Prohibit
The Sale Of Individual Cigarettes; H. 1234, An Act To Increase The
Excise Tax Imposed By The Sale Of Cigarettes; H. 2751, An Act
Relative To The Taxation Of Cigarettes; and H. 3823, An Act
Relative To Health And Tobacco.


F. William Sawyer/John Hancock


26. In 1993, Sawyer was employed by Hancock as a senior
registered legislative agent in Massachusetts. In that capacity,
Sawyer sought to influence legislators in relation to legislation
affecting Hancock's business and to advocate for the passage of
bills which advanced Hancock's interests. In 1993, Sawyer was
generally known to Massachusetts legislators as a Hancock
representative because of his appearances on behalf of Hancock at
the State House. The record contains no evidence of a personal
friendship between Sawyer and Scaccia.

27. Hancock is a Massachusetts-based insurance company whose
business activities are taxed and regulated by the Commonwealth.

28. On March 11, 1993, Scaccia played golf at the Amelia
Island Golf Links with Sawyer and Massachusetts State
Representatives Thomas P. Walsh (T. Walsh) and William Cass (Cass).
In 1993, T. Walsh was the House vice-chairman of the Committee. At
that time, Cass was a member of both the Committee and the Joint
Health Care Committee.

29. The March 11 golf outing was not a NCOIL conference event
as the conference did not begin until March 12th and no golf
outings were scheduled as part of the conference.

30. Sawyer paid for Scaccia and three others (including
himself) to play golf on March 11, 1993 at a total cost of
$360.40.[10] The cost per person of the March 11 golf outing was
$90.10. T. Walsh and Cass did not pay for their own golf or that
of anyone else. The record contains no evidence that Scaccia paid
for his own golf on March 11, 1993.

31. Hancock reimbursed Sawyer for the cost of the March 11,
1993 golf as a business expense.[11]

32. On March 12, 1993, Sawyer drove Scaccia, his son,
Michael, and Cass to the Tournament Players Club Sawgrass golf club
("TPC Sawgrass") at Ponte Vedra Beach, Florida. At TPC Sawgrass,
Scaccia golfed in a threesome with Sawyer and Massachusetts State
Representative Honan, then House vice-chairman of the Government
Regulations Committee and member of the Health Care Committee.
Honan was not registered for the NCOIL conference. Scaccia and
Sawyer shared a golf cart while Michael golfed with Cass.

33. The March 12 golf outing was not a NCOIL conference
event.

34. Sawyer paid for Scaccia and three others (including
himself) to golf on March 12, 1993 at a total cost of $415.52.[12]
The cost per person of the March 12 golf outing was $103.88 per
person. Neither Honan, nor Cass paid for his own or anyone else's
golf on March 12, 1993. The record contains no evidence that
Scaccia paid for his own or his son's golf on March 12, 1993.

35. Hancock reimbursed Sawyer for the cost of the March 12,
1993 golf outing as a business expense.[13]

36. In 1993, Scaccia, as a state representative sponsored or
co-sponsored several bills relating to the insurance industry: H.
3030, An Act Relative to the Restructuring of the Automobile
Insurance System; H. 3777, An Act Relative to Mental Health
Benefits; H. 3778, An Act Relative to Insurance Information and
Privacy; and H. 3779, An Act to Improve Access to Rehabilitation
Services.


William Carroll/LIAM


37. In 1993, Carroll was employed by LIAM as its president,
chief executive officer, and registered legislative agent in
Massachusetts. Carroll has been employed by LIAM since 1985.

38. LIAM is a trade association of Massachusetts-based
commercial life, health and disability insurers. Among LIAM's
purposes are collective information gathering and collective
advocacy concerning legislative and regulatory issues of interest
to LIAM's members. Hancock was a LIAM member in 1993. The
insurance business activities of LIAM's members are taxed and
regulated by the Commonwealth.

Page 841

39. In 1993, Scaccia knew Carroll and that he was a
legislative agent for LIAM. Carroll had appeared before and
submitted written testimony to the Committee chaired by Scaccia
prior to March 12, 1993. Carroll and Scaccia were not personal
friends.

40. On March 12, 1993, Sawyer drove Scaccia, his son
Michael, T. Walsh and his wife, Honan and his guest and Sawyer's
wife, in Sawyer's rental van from the Amelia Island Plantation
approximately two miles to the Ritz-Carlton Hotel ("the Ritz").
Scaccia and his son had dinner with Sawyer and others at the Ritz
restaurant, The Grill.[14] There were a total of 24 persons at the
Ritz dinner all of whom were either Massachusetts legislators (and
their guests) or representatives of businesses with an interest in
Massachusetts insurance legislation. All of the private sector
diners were insurance industry lobbyists with the exception of
Francis Carroll with whom William Carroll had worked on insurance
issues.

41. The March 12, 1993 Ritz dinner was not an official event
of the NCOIL conference. The only scheduled conference event on
the evening of March 12th was a 6:00 p.m. to 7:30 p.m. reception at
the Amelia Island Plantation Executive Conference Center.

42. Scaccia does not drink alcohol and in 1993 Scaccia's son
Michael was 19 years old.

43. At the end of the March 12, 1993 dinner, Carroll paid for
the dinner (for 24 people) which totaled $3,089.16.[15] Deducting
from this total, the portion attributable to alcoholic beverages,
the cost of the dinner (for 24 people) was $1,417.19. The cost per
person of the March 12 dinner was therefore $59.04 and the amount
attributable to Scaccia and his son was $118.08. The record
contains no evidence that Scaccia paid his own or his son's dinner
on March 12, 1993.

44. LIAM reimbursed Carroll for the March 12, 1993 dinner as
a business expense.[16]

45. Scaccia had been told that the March 12, 1993 Ritz dinner
function was sponsored by Carroll and several lobbyists.[17]

46. Prior to and during 1993, LIAM, through its agents,
engaged in lobbying activities regarding how insurance is taxed in
the Commonwealth. In 1993 and in prior years, Carroll had dealings
with Scaccia as House chairman of the Committee, including
corresponding with him and personally giving testimony before the
Committee. By letter dated March 30, 1993, addressed to Scaccia
and Senator William Keating, as Joint Taxation Committee chairs,
Carroll filed written testimony on behalf of LIAM supporting H.
4434, An Act Reforming The Taxation Of Domestic Life Insurance
Companies, which would repeal the state net investment income tax.
This bill was heard by Scaccia's Committee on March 24, 1993. In
1992, LIAM's then eight members paid $22.2 million to the
Commonwealth in net investment income taxes. In addition, by two
letters, each dated March 31, 1992, and addressed to Scaccia and
Keating, Carroll submitted testimony supporting H. 3466, An Act
Reforming the Taxation of Domestic Life Insurance Companies, a 1992
bill repealing the state net investment income tax, and opposing H.
2378, 2568, Acts Relative to Bank Taxation and Competitive
Equality, and H. 2912, An Act Relative to the Taxation of Banks and
Bank-like Entities.

47. House 53, An Act Further Regulating Insurance, was the
National Association of Insurance Commissioners ("NAIC")
accreditation bill and was regarded by LIAM and its members
(including Hancock), as important to insuring their nationwide
competitiveness. The Insurance Committee held a public hearing on
H. 53 on March 22, 1993. Carroll testified in favor of H. 53 at
that public hearing. Although LIAM supported H. 53, Carroll sought
changes before its passage, including changes to its
extraordinary dividends language. Some of these changes were
sought by LIAM in the Insurance Committee itself and others in the
Committee on Bills in Third Reading. In a closely related matter, in
March 1993, LIAM sought changes to the funding of the state Insurance
Commission in the House Ways and Means Committee. On June 16, 1993,
the Insurance Committee reported out favorably an amended version of H.
53 (H. 5220) to the House Ways and Means Committee. The full House
subsequently voted on H. 53.


Richard McDonough/Anheuser-Busch


48. In 1993, McDonough was employed as a registered
legislative agent and lobbyist by Anheuser-Busch, the Association
of the Magistrates & Assistant Clerks Magistrate of the Trial
Courts of the Commonwealth ("Magistrates Association") and
Massachusetts Fine Art Auctioneers, Inc. ("Auctioneers, Inc.").

Page 842

49. Anheuser-Busch produces alcoholic beverages which are
sold in Massachusetts and, therefore, are subject to state
regulation and taxation. The Magistrates Association represents
the interests of the magistrates and assistant clerks of the
Commonwealth's trial courts and the assistant registers of probate
of the Commonwealth's trial courts. Auctioneers, Inc. serves as a
coordinating group for auction and appraisal houses in
Massachusetts and lobbies with regard to Massachusetts legislation
concerning the auction and appraisal profession.

50. McDonough sometimes visited the State House office of the
Committee while Scaccia was House chairman thereof. The record
contains no evidence of a personal friendship between McDonough and
Scaccia.

51. On March 11, 1993, Scaccia and his son, Michael, had
dinner with McDonough at the Amelia Inn restaurant.[18] Also
present were McDonough's wife, Cass, and Massachusetts State
Representative DiMasi and his wife. DiMasi was not registered for
the NCOIL conference. DiMasi has a close personal friendship with
both Scaccia and McDonough.[19] All seven diners at the March 11,
1993 dinner were from Massachusetts, including the three
legislators (Scaccia, Cass and DiMasi) and the one lobbyist,
McDonough.

52. The March 11, 1993 dinner was not a NCOIL conference
event as the conference did not begin until March 12th.

53. Prior to the conclusion of the March 11, 1993 dinner,
McDonough left the Amelia Inn to pick up Senator Havern's wife at
the airport. At the conclusion of the meal, DiMasi asked the
waiter for the check and was told that the dinner had been charged
to McDonough's room number. DiMasi thereafter informed Scaccia
that the waiter had charged the March 11 dinner to McDonough's tab.
In response to Scaccia's question of whether McDonough was coming
back, DiMasi said "[n]o he isn't, but don't worry about it, Angelo,
I'll take care of it".[20]

54. McDonough paid for the March 11, 1993 Amelia Inn
dinner,[21] the cost of which (for seven people) totaled
$343.79.[22] The cost per person of the March 11 dinner was
$49.11, and the amount attributable to Scaccia and his son was
$98.22. The record contains no evidence that Scaccia paid for his
own or his son's meal at the March 11 dinner.

55. In 1993, proposed legislation relating to the sale of
alcoholic beverages in Massachusetts was pending before the
Committee: H. 3678, An Act Imposing a Tax on Alcoholic Beverages
for the Operation of Health Care Facilities. In addition, in 1993,
by Scaccia's own petition, H. 3364, An Act Relative to the Granting
of Licenses for the Sale of Alcoholic Beverages was before the
Government Regulations Committee. In 1993, Scaccia also filed a
bill affecting the interests of Massachusetts auctioneers, H. 2952,
An Act Further Regulating the Conduct of Auctioneers, and co-
sponsored three bills affecting the Massachusetts trial court: H.
3781, An Act Relative to the Appointment of Family Service Officers
in the Probate and Family Court Department; H. 3785, An Act
Authorizing Payment for Accumulated Sick and Vacation to Retiring
Justices of the Trial Court; and H. 3789, An Act to Provide
Indemnification to Members of the Judiciary.


Scaccia's Statements of Financial Interests


56. On May 19, 1992, Scaccia filed or caused to have filed
with the Commission his SFI for calendar year 1991. Scaccia's 1991
SFI was completely filled out, contained responses to each of the
SFI's sections and questions, and was not, on its face, deficient.
The 1991 SFI was signed by Scaccia and dated May 7, 1992. Scaccia
did not, however, report his and his immediate family members'
receipt in July 1991 of gifts of free meals and golf from lobbyist
Lattanzio and Philip Morris.

57. On May 17, 1994, Scaccia filed or caused to be filed with
the Commission his SFI for calendar year 1993. Scaccia's 1993 SFI
was completely filled out, contained responses to each of the SFI's
sections and questions, and was not, on its face, deficient. The
1993 SFI was signed by Scaccia and dated May 16, 1994. Scaccia did
not, however, report his and his son's receipt in Florida in March
1993 of gifts of free meals and golf from lobbyists Sawyer,
McDonough and Carroll and their respective employers and
principals.


III. Decision


The Petitioner has alleged that Scaccia violated G.L. c. 268A,
s.s.3(b) and 23(b)(3) as well as s.s.6 and 7 of G.L. c. 268B. At
all times relevant, Scaccia has been a member of the General Court.
Thus, Scaccia is a state employee within the meaning of G.L. c.
268A,[23] and is a public official required to file a

Page 843

Statement of Financial Interest under G.L. c. 268B, s.5.[24]


A. Statute of Limitations


As a preliminary matter, we must decide whether the charges
against Scaccia in relation to the 1991 Hauppauge, New York
conference are time barred.[25] The Ethics Commission has, by
regulation, established a statute of limitations to be applied to
Commission proceedings.[26]

Under 930 CMR s. 1.02(10), an order to show cause must be
issued within three years after a disinterested person learned of
the violation. When a statute of limitations defense is asserted,
the Petitioner has the burden of showing that a disinterested
person learned of the violation no more than three (3) years before
the order was issued. The Petitioner may satisfy its burden by
obtaining affidavits from the Department of the Attorney General,
the Office of the District Attorney, and from the Commission
investigator assigned to the case stating that no complaint
relating to the violation was received more than three (3) years
before the OTSC was issued. With respect to any violation of G.L.
c. 268A, s.23 an affidavit from the Respondent's public agency that
the agency has reviewed its files and the agency was not aware of
any complaint relating to the violation more than three (3) years
before the order was issued satisfies the Petitioner's burden. If
the Petitioner meets his burden under 930 CMR s. 1.02(10)(c), the
Respondent will prevail on his statute of limitations defense only
if he shows that more than three (3) years before the order was
issued, the relevant events were either a matter of general
knowledge in the community, or the subject of a complaint to the
Ethics Commission, the Department of the Attorney General, the
appropriate Office of the District Attorney, or, with respect to a
s.23 violation only, the Respondent's public agency.

In this case, the OTSC was issued and filed on June 20, 1995.
The alleged conduct took place on July 29 and July 30, 1991, almost
four years before the OTSC issued. The Petitioner has met his
burden of proof under the regulation, which the Respondent does not
dispute. Scaccia, on the other hand, has not met his burden in
that he has not alleged, let alone demonstrated that more than
three years before the OTSC was issued, the relevant events were
either a matter of general knowledge in the community, or the
subject of a complaint to the Ethics Commission, the Department of
the Attorney General, the appropriate Office of the District
Attorney or Scaccia's own agency, the House of Representatives.
Nor has Scaccia shown that any other disinterested person "capable
of acting" on the matter knew or should have known of the alleged
wrongful conduct. Scaccia's statute of limitations defense,
therefore, fails.


B. Section 3(b)


Section 3(b) of G.L. c. 268A provides: "Whoever, being a
present or former state, county or municipal employee or member of
the judiciary, or person selected to be such an employee or member
of the judiciary, otherwise than as provided by law for the proper
discharge of official duty, directly or indirectly, asks, demands,
exacts, solicits, seeks, accepts, receives or agrees to receive
anything of substantial value for himself for or because of any
official act or act within his official responsibility performed or
to be performed by him" violates s.3.

Section 3(b) establishes a gratuity offense. As the word
"gratuity" implies, s.3(b) proscribes the receipt of an item of
"substantial value" (the "gratuity") even if the gratuity is
intended only to "reward" the public official for actions he has
already taken or which he may take in the future. For this reason,
there need not be evidence of corrupt intent in an employee's
conduct or an understood quid pro quo between the receipt of a
thing of substantial value and the performance of official acts.
"The official act might otherwise be properly motivated; and the
gratuity, though unlawful, might not be intended to influence the
official's mindset with regard to that particular action." United
States v. Sawyer, 85 F.3d 713, 730 (1st Cir. 1996). Instead, it is
enough that the public official received something of substantial
value for or because of an official act performed or to be
performed by him. See In re Antonelli, 1982 SEC 101, 108;
Commonwealth v. Dutney, 4 Mass. App. Ct. 363 , 375 (1976).[27] As
we have previously emphasized, to interpret s.3 otherwise would
subject public employees to a host of temptations which would
undermine the impartial performance of their public duties, and
permit multiple remuneration for doing what public employees are
already obliged to do - a good job. Thus, our interpretation of
s.3 fosters public credibility in government institutions by
imposing on public employees constraints which are conducive to the
reasoned, impartial performance of public functions.

In addition, the Commission has set $50 as the threshold at
which it will consider gifts, meals or other

Page 845

benefits to be of "substantial value" for purposes of s.3. See EC-
COI-93-14 ("We believe that the $50 threshold serves the public
interest in maintaining the integrity of the government decision-
making process, and provides a realistic and workable measure which
public officials may use to guide their conduct.").


1. Theodore Lattanzio


The Petitioner alleges that Scaccia violated s.3(b) when he
accepted from Lattanzio on July 29 and 30, 1991 gratuities worth
$50 or more for or because of official acts or acts within
Scaccia's official responsibility performed or to be performed by
him.

The evidence indicates that on July 29, 1991, Scaccia, his
wife and his son had dinner with Lattanzio and others, while the
Scaccias were in Hauppauge, New York attending the CSG conference.
The July 29 dinner was not part of the CSG conference agenda.
Indeed, the guests at the July 29 dinner were but a small subset of
the CSG conference participants. Besides the Scaccias, the dinner
guests included legislators from New Hampshire and representatives
of Philip Morris -- Lattanzio's employer[28] -- or companies in
which Philip Morris holds interests (e.g., Miller Brewing Company).
Specifically, for Philip Morris, the dinner guests included
Lattanzio, William Delaney, Sr., Philip Morris' outside counsel and
principal of Delaney Associates (Philip Morris' lobbyists in
Massachusetts), and Miller Brewing Company lobbyists Anne Keaney
and Trish McCarthy. The Philip Morris representatives, including
Lattanzio, were responsible for Philip Morris' lobbying activities
in Massachusetts and New Hampshire as well as the other New England
States. Additionally, legislators from Massachusetts and New
Hampshire (and their families) attended this dinner. There is no
evidence in the record that Scaccia paid for this dinner for
himself or his family. Rather, the record discloses that the July
29 dinner was paid for by Lattanzio, who was reimbursed for this
expense by Philip Morris. Moreover, from the foregoing, a
reasonable inference may be drawn that Scaccia was aware that a
representative of Philip Morris paid for his meal and those of his
wife and son.[29]

The evidence also indicates that Lattanzio invited a group of
people to play golf on July 30, 1991. Lattanzio, himself, handed
out golf cart keys to the July 30 golf participants. Scaccia and
his son, Michael, were among the 19 people who golfed as part of
Lattanzio's group that day. Besides Scaccia and his son, the July
30 golfers included five tobacco industry lobbyists (three of whom
were from Philip Morris), ten individuals who were legislators or
family members of legislators and two lobbyists for non-tobacco
Massachusetts business interests. Five of the nineteen people who
golfed on July 30 (including Scaccia and his son) had attended the
July 29 dinner. As with the dinner the night before, the July 30
golf was not part of the CSG conference agenda. There is no
evidence in the record that Scaccia paid for his own golf or that
of his son on July 30. Rather, according to the record, Lattanzio
paid for the July 30 golf, for which he was reimbursed by Philip
Morris. Moreover, where Lattanzio extended the golf invitation,
personally handed out the keys to the golf carts, and the Scaccias
had dined with Lattanzio and the other Philip Morris
representatives the night before, the Commission reasonably infers
that Scaccia was aware that Lattanzio paid for his and his son's
golf on July 30, 1991.

The record also contains substantial evidence of Scaccia's
official acts or acts within his official responsibility that he
performed with regard to Philip Morris' interests. Both before and
after the July 29 dinner and July 30 golf, legislation was pending
before the Massachusetts legislature of interest to Philip Morris,
including various pieces of tax legislation before the Taxation
Committee chaired by Scaccia. Scaccia acted officially with regard
to this legislation both before and after the July 29 dinner and
July 30 golf, including holding hearings and voting on this
legislation.

The July 29 dinner, as well as the July 30 golf for Scaccia
and his family members, respectively, cost $50 or more and, thus,
were "of substantial value" for purposes of s.3. See Findings of
Fact ("Findings"), par.par.19, 22.

Finally, Scaccia's receipt of the July 29 dinner and July 30
golf for himself and his family members was not provided for by law
for the proper discharge of his official duties. Moreover, Scaccia
and Lattanzio are not personal friends and, therefore, friendship
could not have been the motive for receipt of the gratuities.

In addition to the foregoing evidence establishing a violation
of s.3(b), we draw an adverse inference against Scaccia as to his
awareness that gratuities given to him by Lattanzio were "for or
because of" any official act or act within his official
responsibility performed or to be performed by him based on his
invocation of his privilege against self-incrimination. See Labor
Relations Commission v. Fall River

Page 845

Educators' Association, 382 Mass. 465 , 471-472 (1981) (refusal to
testify on a subject peculiarly within the knowledge of witness
warranted an inference in civil action that was adverse to party).

Consequently, we conclude that the Petitioner has demonstrated
by a preponderance of the evidence that on July 29 and 30, 1991,
Scaccia received gratuities of substantial value from Lattanzio,
for or because of official acts or acts within his official
responsibility that Scaccia performed, in violation of s.3(b).


2. F. William Sawyer


The Petitioner alleges that Scaccia violated s.3(b) when he
accepted from Sawyer on March 11 and 12, 1993 gratuities worth $50
or more for or because of official acts or acts within his official
responsibility performed or to be performed by him.

The evidence indicates that on March 11, 1993, Scaccia played
golf in a foursome with Sawyer at Amelia Island Golf Links, while
Scaccia was attending a NCOIL conference at the Amelia Island
Plantation Resort in Amelia Island, Florida. The March 11 golf
outing was not part of the NCOIL conference agenda.[30] Playing
golf with Sawyer and Scaccia were Massachusetts State
Representatives T. Walsh and Cass. Walsh was invited by Sawyer to
play golf on March 11. Walsh and Cass each testified that they did
not pay for the March 11 golf outing.

On March 12, 1993, Sawyer drove Scaccia, his son, Michael, and
Cass to TPC Sawgrass at Ponte Vedra Beach, Florida. The March 12
golf outing was not part of the NCOIL conference agenda. Scaccia
played golf with Sawyer and Honan as a threesome. Scaccia and
Sawyer shared a golf cart. Honan testified that he did not pay for
his own golf or anyone else's. Scaccia's son, Michael, golfed with
Cass.

In 1993, Sawyer was employed by Hancock as a registered
legislative agent in Massachusetts. At that time, Scaccia knew
Sawyer. Moreover, the record permits the reasonable inference that
Scaccia knew Sawyer to be a legislative agent for Hancock where all
of the legislators who testified stated that they were aware that
Sawyer was so employed, and DiMasi testified that he had an
indication that Scaccia knew Sawyer worked for Hancock because of
Sawyer's appearances at the State House.[31] The record does not
indicate that Scaccia paid for his own golf on either March 11 or
12. Rather, the record demonstrates that the March 11 and 12 golf
was paid for by Sawyer, who was reimbursed for this expense by his
employer, Hancock. From the foregoing evidence, a reasonable
inference may be drawn that Scaccia was aware that Sawyer paid for
his golf on March 11 and 12, 1993.

The record also contains substantial evidence of Scaccia's
official acts or acts within his official responsibility performed
by him with regard to Hancock's interests. Both before and after
the March 11 and 12 golf, tax legislation of interest to Hancock
was pending before Scaccia's Committee. Scaccia acted officially
regarding this legislation after the March 11 and 12 golf,
including holding Committee hearings on such legislation.
Additionally, during 1993, Scaccia, himself, sponsored and filed
several bills affecting the insurance industry.

Both the March 11 and March 12 golf cost $50 or more and,
thus, were "of substantial value" for purposes of s.3. See
Findings, par.par.29, 33.

Finally, Scaccia's receipt of the March 11 and 12 golf is not
provided for by law for the proper discharge of his official
duties. Moreover, Scaccia and Sawyer are not personal friends and,
therefore, friendship could not have been the motive for receipt of
the gratuities.

In addition to the foregoing evidence establishing a violation
of s.3(b), we draw an adverse inference against Scaccia as to his
awareness that gratuities given to him by Sawyer were "for or
because of" any official act or act within his official
responsibility performed or to be performed by him based on his
invocation of his privilege against self-incrimination.

Consequently, we conclude that the Petitioner has demonstrated
by a preponderance of the evidence that on March 11 and 12, 1993,
Scaccia received gratuities of substantial value from Sawyer, for
or because of official acts or acts within his official
responsibility that Scaccia performed, in violation of s.3(b).


3. William Carroll


The Petitioner alleges that Scaccia violated s.3(b) when he
accepted from Carroll on March 12, 1993 a gratuity worth $50 or
more for or because of official acts or acts within his official
responsibility performed or to be performed by him.

The evidence indicates that on March 12, 1993, Scaccia and his
son had dinner with Carroll at the Ritz

Page 846

Carlton Hotel while Scaccia was attending the NCOIL conference.
The March 12 dinner was not part of the NCOIL conference agenda.
Attending the March 12 dinner in addition to Scaccia and his son
were twenty-two individuals, all of whom were either Massachusetts
legislators (or their guests) or representatives of businesses with
an interest in Massachusetts insurance legislation. There is no
evidence in the record that Scaccia paid for his or his son's meals
on March 12. Rather, the record discloses that the March 12 dinner
was paid for by Carroll and that LIAM reimbursed Carroll for the
dinner as a business expense. Moreover, Scaccia, through his
counsel, admits that he was informed that Carroll was a sponsor of
the March 12 dinner. (Exhibit P-77). Therefore, it is reasonable
to conclude that Scaccia was aware that his meal and that of his
son during the March 12 dinner was paid for, at least in part, by
Carroll, whom Scaccia knew to be a legislative agent.

There is also substantial evidence of Scaccia's official acts
or acts within his official responsibility performed by him with
regard to LIAM's interests. Both before and after the March 12
dinner, there was legislation pending before the Committee of
interest to LIAM's members (including Hancock, as explained above).
Scaccia acted officially regarding such legislation after the
March 12 dinner. Additionally, during 1993, Scaccia, himself,
sponsored and filed several bills affecting the insurance industry.

The cost of the March 12 dinner for Scaccia and his son,
respectively, was $50 or more and, thus, was "of substantial value"
for purposes of s.3.[32] See Findings, par.42.

Finally, Scaccia's receipt of the March 12 dinner is not
provided for by law for the proper discharge of his official
duties. Moreover, Scaccia and Carroll are not personal friends
and, therefore friendship could not have been the motive for
receipt of the gratuities.

In addition to the foregoing evidence establishing a violation
of s.3(b), we draw an adverse inference against Scaccia as to his
awareness that gratuities given to him by Carroll were "for or
because of" any official act or act within his official
responsibility performed or to be performed by him based on his
invocation of his privilege against self-incrimination.

Consequently, we conclude that the Petitioner has demonstrated
by a preponderance of the evidence that on March 12, 1993, Scaccia
received a gratuity of substantial value from Carroll, for or
because of official acts or acts within his official responsibility
that Scaccia performed, in violation of s.3.

4. Richard McDonough


The Petitioner alleges that Scaccia violated s.3(b) when he
accepted from McDonough on March 11, 1993, a gratuity worth $50 or
more for or because of official acts or acts within his official
responsibility performed or to be performed by him.

The evidence indicates that on March 11, 1993, Scaccia and his
son, Michael, had dinner with McDonough and others at the Amelia
Inn restaurant, while Scaccia was attending the NCOIL conference at
the Amelia Island Plantation Resort. DiMasi, a close personal
friend of Scaccia, also attended the March 11 dinner. See
Findings, par.51. Before his early departure from the dinner,
McDonough, unbeknownst to DiMasi, arranged for the dinner to be put
on his (McDonough's) room tab.[33] Consequently no check was ever
brought to the guests at the March 11 dinner. After inquiring of
the waiter, DiMasi learned that McDonough had arranged for payment
of the dinner. Although DiMasi thereafter apprised Scaccia of
McDonough's handling of the bill for the March 11 dinner, DiMasi
also assured Scaccia that he would "take care of it". See
Findings, par.53. From the foregoing, we find that Scaccia,
relying on the assurance of his close personal friend DiMasi,
reasonably could have concluded that he was receiving for himself
and his son, a meal that would be paid for by DiMasi rather than
McDonough.


Accordingly, we conclude that the Petitioner has failed to
prove by a preponderance of the evidence that on March 11, 1993,
Scaccia received a gratuity from McDonough for or because of
official acts or acts within his official responsibility performed
or to be performed by him.[34]


C. Section 23(b)(3)


Section 23(b)(3) of the conflict of interest law, the
standards of conduct section, provides that

[n]o current officer or employee of a state, county or
municipal agency shall knowingly, or with reason to know . . .

(3) act in a manner which would cause a reasonable
person, having knowledge of the relevant circumstances, to conclude
that any person

Page 847

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. 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.

As the Commission has recently stated, "[s]ection 23(b)(3) is
concerned with the appearance of a conflict of interest as viewed
by the reasonable person, not whether the Respondent actually gave
preferential treatment. The Legislature, in passing this standard
of conduct, focused on the perceptions of the citizens of the
community, not the perceptions of the players in the situation."
In re Hebert, 1996 SEC 800. In a recent case, the Commission
indicated that in applying s.23(b)(3) to a public employee, it will
evaluate whether, "due to his private relationship or interest, an
appearance arises that the integrity of the public official's
action might be undermined by the relationship or interest." In re
Flanagan, 1996 SEC 757. See also In re Antonelli, 1982 SEC 101,
110 (evaluating precursor of s.23(b)(3), Commission indicated major
purpose of section to prohibit public employee from engaging in
conduct which will raise questions over impartiality or credibility
of his work). We emphasize that public disclosure of the facts
which would otherwise lead to the conclusion that a public
employee's integrity has been undermined serves an important public
interest. In addition, the s.23(b)(3) disclosure provision affords
a simple mechanism by which public employees may avoid violations
of s.23(b)(3).


1. Lattanzio


The evidence indicates that subsequent to July 30, 1991,
Scaccia acted officially as a state representative concerning
legislation relating to the taxation of tobacco products. We find
that by accepting dinner and golf (for himself and his family) from
Lattanzio (a legislative agent for Philip Morris) and thereafter
taking official actions affecting the interests of Philip Morris,
Scaccia, "knowingly or with reason to know," acted in a manner
which would cause a reasonable person, with knowledge of the
relevant circumstances, to conclude that Philip Morris could likely
enjoy his favor in the performance of his official duties or that
Scaccia would likely act or fail to act as a result of Lattanzio's
undue influence. Consequently, where the record contains no
evidence that Scaccia publicly disclosed his July 29 and 30 receipt
of dinner and golf prior to taking official actions affecting the
interests of Philip Morris, we conclude that the Petitioner has
demonstrated by a preponderance of the evidence that Scaccia
violated s.23(b)(3).


2. Sawyer and Carroll


The evidence indicates that subsequent to March 11 and 12,
1993, Scaccia acted officially as a state representative concerning
legislation relating to the insurance industry. We find that by
accepting golf from Sawyer (a legislative agent for Hancock) and
dinners from Carroll (a legislative agent for LIAM) and thereafter
taking official actions affecting the interests of Hancock and
LIAM, Scaccia, "knowingly or with reason to know," acted in a
manner which would cause a reasonable person, with knowledge of the
relevant circumstances, to conclude that Hancock and LIAM could
likely enjoy his favor in the performance of his official duties or
that Scaccia would likely act or fail to act as a result of Sawyer
or Carroll's undue influence. Consequently, where the record
contains no evidence that Scaccia publicly disclosed his March 11
and 12 receipt of golf and a dinner prior to taking official
actions affecting the interests of Hancock and LIAM, we conclude
that the Petitioner has demonstrated by a preponderance of the
evidence that Scaccia violated s.23(b)(3).


3. McDonough


As stated earlier, we find that Scaccia reasonably could have
concluded that he received the March 11 dinner from his personal
friend, DiMasi, rather than McDonough. Accordingly, we find that
the Petitioner failed to establish that Scaccia "knowingly or with
reason to know," (subsequent to his acceptance of the March 11
dinner) acted in a manner which would cause a reasonable person,
with knowledge of the relevant circumstances to conclude that
Anheuser-Busch (or the other organizations represented by
McDonough) could likely enjoy his favor in the performance of his
official duties or that Scaccia would likely act or fail to act as
a result of McDonough's undue influence. Consequently, we conclude
that the Petitioner has not demonstrated by a preponderance of the
evidence that Scaccia violated s.23(b)(3) in this instance.

Page 848


D. G.L. c. 268B, Section 6


Section 6 of G.L. c. 268B provides, in relevant part: [N]o
public official or public employee or member of such person's
immediate family shall knowingly and willfully solicit or accept
from any legislative agent, gifts[35] with an aggregate value of
one hundred dollars or more in a calendar year.

The record demonstrates that Lattanzio was a registered
legislative agent for Philip Morris in 1991 and that Sawyer and
Carroll were registered legislative agents for Hancock and LIAM,
respectively, in 1993. In addition, we have drawn the reasonable
inference, in the case of Lattanzio and Sawyer, and the record
itself demonstrates, in the case of Carroll, that Scaccia knew
Lattanzio, Sawyer and Carroll each to be a legislative agent and
that Scaccia was aware of his receipt of gratuities from each of
these legislative agents. We also have found the value of the
gratuities which Scaccia received from each of these legislative
agents to be $100 or more. Accordingly, we conclude that the
Petitioner has demonstrated by a preponderance of the evidence that
Scaccia violated G.L. c. 268B, s.6.


E. G.L. c. 268B, Section 7


Section 7 of G.L. c. 268B provides for civil and criminal
penalties for "any person who willfully affirms or swears falsely in
regard to any material matter before a commission proceeding under
paragraph (c) of section 4 of this chapter, or who files a false
statement of financial interests under section 5 of this chapter .
. . ." (emphasis added). G.L. c. 268B, s.5(g) states, in relevant
part, that "reporting persons shall disclose, to the best of their
knowledge . . . the name and address of the donor, and the fair
market value, if determinable, of any gifts aggregating more than
one hundred dollars in the calendar year, if the recipient is a
public official and the source of the gift(s) is a person having a
direct interest in legislation . . ."

The Petitioner has alleged that Scaccia violated G.L. c. 268B,
s.7 by filing his 1991 and 1993 SFI's without disclosing his
receipt in calendar year 1991 of gratuities provided by Lattanzio
aggregating more than $100 and in calendar year 1993, of gratuities
provided by both Carroll and Sawyer aggregating more than $100.
According to the Petitioner, Scaccia thereby twice filed false
SFI's.

As detailed above, the record indicates that in March of 1991
Scaccia received gratuities from Lattanzio aggregating more than
$100 and that the source of such gifts was Philip Morris, a company
with an interest in legislation before the Massachusetts House of
Representatives in 1991. The record also shows that in July of
1993, Scaccia received gratuities from Sawyer and Carroll, which in
each case aggregated to over $100. The source of such gifts
respectively was Hancock and LIAM, both of which are organizations
which had an interest in legislation before the Massachusetts House
of Representatives in 1993. Additionally, we have drawn reasonable
inferences as to Scaccia's awareness that he was receiving
gratuities from Lattanzio, Sawyer and Carroll and their positions
as legislative agents.

Scaccia has admitted that he is a state representative. As
such, he is required to file a yearly statement of financial
interest. G.L. c. 268B, s.5(b). Scaccia concedes, without
admitting that he received any of the aforementioned gratuities,
that he failed to disclose these gratuities on his 1991 and 1993
SFI's. (Respondent's Brief at 67).

Accordingly, we find that the Petitioner has demonstrated by
a preponderance of the evidence that Scaccia filed false SFI's for
calendar years 1991 and 1993 in violation of G.L. c. 268B, s.7.


IV. Conclusion


In conclusion, the Petitioner has proved by a preponderance of
the evidence that Angelo Scaccia violated G.L. c. 268A, s.3(b) on
five occasions by accepting: a meal and golf from Theodore
Lattanzio; golf on two occasions from F. William Sawyer; and a meal
from William Carroll. The Petitioner has also proved by a
preponderance of the evidence that Angelo Scaccia violated G.L. c.
268A, s.23(b)(3) with respect to the above-described gratuities.
Additionally, the Petitioner has proved by a preponderance of the
evidence that Angelo Scaccia violated G.L. c. 268B, s.6 by
accepting from Theodore Lattanzio, F. William Sawyer and William
Carroll gifts aggregating $100.00 or more in a calendar year.
Finally, the Petitioner has proved by a preponderance of the
evidence that Angelo Scaccia violated G.L. c. 268B, s.7 on two
occasions through his filing of false Statements of Financial
Interests for calendar years 1991 and 1993.

We conclude that the Petitioner has not proved by a
preponderance of the evidence that Angelo Scaccia violated G.L. c.
268A, s.s.3(b) or 23(b)(3) in relation to Richard McDonough.

Page 849


V. Order


Pursuant to the authority granted it by G.L. c. 268B, s.4(j),
the Commission hereby orders Angelo Scaccia to pay the following
civil penalty for violating G.L. c. 268A, s.s.3(b) and 23(b)(3) and
G.L. c. 268B, s.s.6 and 7. We order Angelo Scaccia to pay
$3,000.00 (three thousand dollars) to the State Ethics Commission
within thirty days of his receipt of this Decision and Order.

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

[1] Commissioner Paul F. McDonough, Jr. has abstained from
participation in the adjudication of this matter.

[2] "Gratuities" is used to refer to things of substantial
value.

[3] Additionally, Sandra Scaccia (Scaccia's wife), Richard
McDonough, and William Sawyer invoked their privileges against
self-incrimination.

[4] Commissioner Burnes is not a signatory to this Decision
and Order because her resignation became effective prior to its
issuance. She did, however, fully participate in the Commission's
deliberations and decision in this matter.

[5] We credit the Amelia Island Plantation, Amelia Golf Links
business record signed by Michael Scaccia which reflects expenses
incurred on March 10, 1993. Additionally, because statements
contained in the Affidavit of Michael Scaccia dated October 30,
1995 are contradicted by the testimony of live witnesses, who were
subject to cross-examination, and properly authenticated business
records admitted at the hearing, we do not credit the Affidavit.

[6] We credit Lattanzio's business records.

[7] We credit Lattanzio's business records.

[8] We credit Lattanzio's business records.

[9] We credit Lattanzio's testimony and business records.

[10] We credit the Amelia Island Plantation Guest Folio
business record reflecting the expenses incurred by Sawyer on March
11, 1993.

[11] We credit the testimony of Bruce Skrine, Corporate
Secretary and keeper of the records for Hancock.

[12] We credit the business record of Sawgrass TPC Golf Course
relating to the expenses incurred by Sawyer on March 12, 1993.

[13] We credit the testimony of Bruce Skrine, Corporate
Secretary and keeper of the records for Hancock.

[14] We credit Carroll's testimony that an individual
identified to him as Michael Scaccia was an attendee at the March
12, 1993 dinner at the Ritz. As stated above, we do not credit the
Affidavit of Michael Scaccia dated October 30, 1995.

[15] We credit the business record (Guest Check No. 6430) from
the Ritz-Carlton restaurant, The Grill, dated March 12, 1993.

[16] We credit Carroll's testimony on this point.

[17] We credit the admission of Scaccia's counsel contained in
his June 8, 1994 letter to the Petitioner.

[18] We credit Cass' testimony concerning Michael Scaccia's
attendance at the March 11, 1993 dinner. As stated above, we do
not credit the Affidavit of Michael Scaccia dated October 30, 1995.

[19] We credit DiMasi's testimony on this point.

[20] We credit DiMasi's testimony for this finding.

[21] In his Proposed Findings and Rulings, the Respondent
admits this fact. See par.44.

[22] We credit the Amelia Island Plantation Guest Folio
business record (and attached guest check, reference no. 74796)
reflecting the dinner expenses incurred by McDonough on March 11,
1993. The total amount relied upon for this finding does not
include the beverage expenses incurred by McDonough on March 11,
1993 as reflected in the business record (and attached guest check,
reference no 21411).

[23] "State employee," a person performing services for or
holding an office, position, employment, or membership in a state
agency, whether by election, appointment, contract of hire or
engagement, whether serving with or without compensation, on a
full, regular, part-time, intermittent or consultant basis,
including members of the general court and executive council. G.L.
c. 268A, s.1(q).

[24] See G.L. c. 268A, s.1(q)

[25] Scaccia does not raise a statute of limitation defense in
relation to the alleged gratuities given at the 1993 Amelia Island
conference.

[26] The Commission first adopted a three-year statute of
limitations in an adjudicatory decision, In re Saccone, 1982 SEC
87, 93-94 (rev'd on other grounds, 395 Mass. 326 (1985)). In that
decision, the Commission expressly adopted the reasoning of
Nantucket v. Beinecke, 379 Mass. 345 (1979), in which the Court
held that the essence of a legal action under G.L. c. 268A, s.21,
brought by Nantucket to void a deed tainted by the conflict of
interest of certain Town employees, sounded in tort, as a violation
of official duty. Id. at 348-349. The Supreme Judicial Court also
determined that the trial judge was correct in deciding that "the
statute [of limitations] commences to run when the plaintiff knew
or should have known of the wrong." Id. at 350. In discussing the
circumstances under which the Town would be charged with notice for
purposes of the running of the statute of limitations, and the
Court stated "as a general proposition, that only when those
disinterested persons who are capable of acting on behalf of the
town knew or should have known of the wrong, should the town be
charged with such knowledge." Id. at 351. Sometime between 1982
and 1984, the Commission's statute of limitations was codified in
930 CMR s. 1.02(10). In Zora v. State Ethics Commission, 415 Mass.
640, 647-648 (1993), the Supreme Judicial Court, affirming its
reasoning in Beinecke, held that a three-year statute of
limitations applies to proceedings under G.L. c. 268A.

[27] In contrast, no s.3 violation occurs where the public
employee has a prior friendship with the donor and the evidence
establishes that the friendship is the motive for the receipt of
the gratuity. See In re Hebert, 1996 SEC 800. Scaccia has not
alleged a friendship with the donors in this case, nor would the
evidence support such a finding.

[28] In 1991, Lattanzio was employed by Philip Morris as a
registered legislative agent in Massachusetts. From the record, it
is reasonable to infer that in 1991 Scaccia knew Lattanzio to be a
legislative agent for Philip Morris based on that fact that
Lattanzio had previously met Scaccia at the 1990 Eastern Regional
Conference in Manchester, New

Page 850

Hampshire. In 1990 Lattanzio was serving as Philip Morris'
Regional Director for the New England Region, a position in which
he monitored legislation in the six New England states relative to
Philip Morris' interests. The record reflects that Lattanzio
incurred a business expense relating to Scaccia at that time.
Additionally, we draw an adverse inference against Scaccia
regarding his knowledge of Lattanzio as a legislative agent for
Philip Morris based on his invocation of his privilege against
self-incrimination. See Quintal v. Commissioner of the Department
of Employment & Training, 418 Mass. 855 , 861 (1994) (in a civil
action, a reasonable inference adverse to a party may be drawn from
the refusal of that party to testify on the grounds of self-
incrimination).

[29] Indeed, Scaccia's counsel admitted during his closing
argument before the Ethics Commission that such an inference would
be reasonable. (Closing Transcript at 41).

[30] Indeed, the conference did not begin until March 12, 1993
and no golf was scheduled as part of the conference.

[31] Additionally, we draw an adverse inference against
Scaccia regarding his knowledge of Sawyer as a legislative
agent based on his invocation of his privilege against self-
incrimination.

[32] The record contains evidence that, subsequent to his
return to Boston, Carroll sought and received contributions of $500
and $600 from Francis Carroll (of the Small Business Service
Bureau, Inc.) and insurance company lobbyist Arthur Lewis,
respectively, toward the cost of the March 12 dinner. However, the
record lacks evidence that a third lobbyist, who had previously
expressed an interest in contributing to the cost of the March 12
dinner, provided Carroll with any contribution. The happenstance
that some contributions were later made does not alter our
conclusion that on March 12, 1993, Scaccia received from Carroll a
gratuity of substantial value.

[33] Scaccia admits that the March 11 dinner was paid for by
McDonough. See Findings, par.53, n. 15.

[34] We need not reach the issue of whether the meals accepted
by Scaccia on March 11, 1993 for himself and his son were of
substantial value.

[35] "Gift" means a payment, entertainment, subscription,
advance, services or anything of value, unless consideration of
equal or greater value is received; . . . . G.L. c. 268B, s.1(g).

Page 851

End of Decision