Docket No. 378
In the Matter of D. John Zeppieri
Date: February 13, 1990
This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and D. John Zeppieri (Mr. Zeppieri) pursuant to Section 11 of the Commission’s Enforcement Procedures. This Agreement constitutes a consented to final Commission order enforceable in the Superior Court pursuant to G.L. c. 268B, §4(j).
On March 8, 1989, the Commission initiated a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A involving Mr. Zeppieri, who was then Chairman of the North Adams License Board. The Commission concluded its inquiry and, on November 30, 1989, found reasonable cause to believe that Mr. Zeppieri violated G.L. c. 268A. §19.
The Commission and Mr. Zeppieri now agree to the following findings of fact and conclusions of law:
1. At all times relevant to this matter, Mr. Zeppieri was an appointed member and chairman of the North Adams License Board (License Board). As such, he was a municipal employee as defined in G.L. c. 268A. §l(g).
2. Among its various duties, the License Board is responsible for the annual renewal of all liquor licenses in North Adams. The process of renewal was as follows: In or about early November of each year, Mr. Zeppieri, in his capacity as Chairman of the License Board, would send out renewal affidavits to each holder of a liquor license. (Those affidavits required each licensee to represent under oath that all conditions regarding the license remained the same and to represent that all state taxes had been paid as required by law.) In turn, these affidavits were completed and returned to Mr. Zeppieri as License Board Chairman in November and early December. The License Board would then vote to renew all of the licenses. This usually occurred sometime in early December. In or about mid-December, 1989, Mr. Zeppieri, as License Board Chairman, would send out notices to each licensee that the annual fee was due by December 31st (for the renewal for the next year).
The licensees would pay their fees directly to the city treasurer and the treasurer would provide the licensee with the new license.
3. At all times material to this agreement, Mr. Zeppieri was also a licensed real estate broker doing business as RCI Real Estate.
4. At all times material to this agreement, Louis E. Matney (Mr. Matney) was the owner of the premises at 117 River Street, North Adams. In or about November, 1987, Mr. Matney obtained a beer and wine restaurant license for a business he operated on those premises known as Luigi’s Deli. That license was renewed by the License Board for 1988. For various reasons, Luigi’s Deli did not open for business in 1988.
5. In or about June of 1988, Mr. Zeppieri obtained an exclusive real estate listing from Mr. Matney for the premises at 117 River Street. This was a 3-month exclusive, and expired without a sale.
6. Throughout the fall and early winter of 1988, Mr. Zeppieri was interested in obtaining another exclusive from Mr. Matney regarding the premises at 117 River Street. During this time period, they had occasional, brief discussions regarding the sale of the property.
7. In or about November, 1988, Mr. Zeppieri as License Board Chairman sent out renewal affidavits to all licensees. However, he unilaterally decided not to send a renewal affidavit to Mr. Matnev because Mr. Zeppieri had determined that Luigi’s Deli had not been open for business and it did not appear that it was going to be open for business and use the license. Mr. Zeppieri did not inform Mr. Matney of his action.
8. On or about December 29, 1988, Mr. Matney went to see Mr. Zeppieri at Mr. Zeppieri’s city hall office. Although the exact nature of the conversation is in dispute, the subject was the potential renewal of Mr. Matney’s liquor license. During this discussion, Mr. Zeppieri called a fellow License Board member, and he and that member agreed to grant Mr. Matney a 10-day extension such that his fee would be due on January 10, 1989. Mr. Zeppieri then had Mr. Matney complete a renewal affidavit and back-date it to November 7, 1988.
9. One or two days later, Mr. Matney began discussions with one of Mr. Zeppieri’s real estate agents concerning renewing the real estate exclusive for Luigi’s Deli. Mr. Matney wanted the listing to be for two months and at $114,900. Mr. Zeppieri instructed his agent to reject this proposal. The agent, in turn, informed Mr. Matney of Mr. Zeppieri’s rejection. Mr. Matney then proposed three months at $114,900. Mr. Zeppieri, again through his agent, insisted on $108,000 and a six-month exclusive. On January 9, 1989, Mr. Zeppieri, through his agent, gave Mr. Matney an ultimatum, that Mr. Matney must decide that day. At that point, the negotiations ended.
10. At its meeting of January 12, 1989, the License Board voted unanimously to revoke Mr. Matney’s license for failure to pay his fee.
11. Section 23(b)(2) prohibits a municipal employee from using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals.
12. By negotiating for a real estate exclusive from Mr. Matney during a time when there was an issue pending before the License Board as to whether Mr. Matney’s license would be revoked, Mr. Zeppieri in effect attempted to use his official position to secure an unwarranted privilege of substantial value which would not be properly available to similarly situated individuals. Therefore, be violated §23(b)(2).
13. Section 23(b)(3) prohibits a municipal employee from acting 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. By the foregoing conduct, Mr. Zeppieri did act in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that Mr. Matney could either improperly influence him or unduly enjoy his favor in the performance of his official duties. Therefore, Mr. Zeppieri violated G.L. c. 268A, §23(b)(3).
Based on the foregoing facts, 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 agreed to by Mr. Zeppieri:
1. that he pay to the Commission the amount of one thousand dollars ($1,000.00) as a civil penalty for his violation of §23; and
2. that he waive all rights to contest the findings of fact, conclusions of law and terms and conditions contained in this agreement in any related administrative or judicial proceeding to which the Commission is or may be a party.